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HomeMy WebLinkAboutORD 1013ORDINANCE NO. 1013 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A SENIOR HOUSING DEVELOPMENT AGREEMENT RELATING TO AFFORDABLE HOUSING REQUIREMENTS FOR A PROPOSED 10-UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE WEST SIDE OF SAN RAFAEL 370 FEET SOUTH OF CATALINA WAY, 44-555 SAN RAFAEL AVENUE. CASE NO. DA 02-02 WHEREAS, the City Council of the City of Palm Desert, California, did on the 14th day of March, 2002, hold a duly noticed public hearing to consider the request by Topman Builders, Inc./Mike Filing for approval of DA 02-02; 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 City Council did find the following facts and reasons to exist to justify granting approval of said development agreement: 1. The proposed development agreement is consistent with the intent and purpose of the Senior Overly zoning requirements and the General Plan Housing Element. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm Desert, California, as follows: 1 . That the above recitations are true and correct and constitute the findings of the City Council in this case. 2. That DA 02-02 Exhibit "A" attached hereto is hereby approved. 3. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effect thirty (30) days after its adoption. PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this 24th day of October , 2002, by the following vote, to wit: AYES: BENSON, CRITES, FERGUSON, SPIEGEL, KELLY NOES: NONE ABSENT: NONE ABSTAIN: NONE RICHARD S. KELLY, Mayor ATTEST: RACHELLE D. KLASSEN, CITY CLERK City of Palm Desert, California ORDINANCE NO. 1013 EXHIBIT "A" SENIOR HOUSING DEVELOPMENT AGREEMENT RIVER RUN ONE, A CALIFORNIA LLC THIS AGREEMENT is entered into this day of JWZ��-,2002, between River Run One, a California LLC (hereinafter "Property Owner") and the City of Palm Desert, (hereinafter "City"), a municipal corporation organized and existing under the laws of the state of California. RECITALS This Agreement is predicated upon the following facts: A. Government Code Sections 65864-65869.5 authorize the City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property; B. DEVELOPER is owner of certain real property located within the City of Palm Desert, California, which property is described in Exhibit 1, attached hereto and made a part hereof (hereinafter "PROPERTY"). DEVELOPER has applied for and been granted approval of a precise plan / conditional use permit (PP/CUP 01-24) and a change of zone from R-3 to R-3 S.O. to construct 10 rental senior housing apartment units on the PROPERTY; E ORDINANCE NO. 1013 C. The DEVELOPER has applied for precise plan/conditional use permit approval pursuant to Chapter 25.52 of the Zoning Ordinance, Senior Housing Overlay District which allows for significant density increases in return for building specialized housing designed and restricted to residents over age 62 years; D. Pursuant to Section 25.52.030 F, Affordability Requirements of the Municipal Code 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; E. The City Council of City has found that the development agreement is consistent with the General Plan (and the Palma Village Specific Plan), and Senior Overlay District; and NOW, THEREFORE, the parties agree: requires: 1. Definitions. In this Agreement, unless the context otherwise (a) "City" is the City of Palm Desert. (b) "Project" is the development to be constructed in the City pursuant to Precise Plan / Conditional Use Permit 01-24. "Property Owner" means the person having a legal or equitable interest in the real property as described in paragraph (3) and includes the Property Owner's successor in interest. K3 ORDINANCE NO. 1013 (d) "Real Property" is the real property referred to in paragraph (e) "Useful Life of the Project" is the greater of thirty (30) years or the period of time which the Project remains habitable, with reasonable care and maintenance, as determined by City. (f) "Senior Citizen Household" means a maximum two person household of which all members are 62 years of age or older. (g) "Conventional Senior Housing" means rental or ownership units designed and restricted to healthy ambulatory senior citizens who remain capable of performing most activities associated with independent daily life. Other than having smaller units and possessing design features and recreational amenities more compatible with a less active lifestyle conventional senior housing resembles standard housing. (h) "Very Low Income Senior Citizen Housing" means senior citizen households whose gross income does not exceed 50% of the median income for one person households for Riverside County based upon financial and demographic data received from the United States Department of Housing and Community Development (HUD) or its successor agency. This information is included in Exhibit "2" and shall be updated automatically as current data is obtained from HUD. If in the future more relevant data is made available specifically applicable to senior citizens by 2 ORDINANCE NO. 1013 (HUD) or other officially recognized agencies, such data shall become the basis of this AGREEMENT. (1) "Lower Income Senior Citizen Household" means senior citizen households whose gross income does not exceed 80% of the median income for one person households for Riverside County based upon financial and demographic data received from the United States Department of Housing and Community Development (HUD) or its successor agency. This information is included in Exhibit "2" and shall be updated automatically as current data is obtained from HUD. If in the future more relevant data is made available specifically applicable to senior citizens by (HUD) or other officially recognized agencies, such data shall become the basis of this AGREEMENT. (j) "Moderate Income Senior Citizen Household" means senior citizen households whose income does not exceed 100% of the median income. 2. Description of Real Property. The real property which is the subject of this Agreement is described in Exhibit 1. 3. Interest of Property Owner. Property Owner represents that he has a full legal and equitable interest in the Real Property and that all other persons holding legal or equitable interests in the Property are to be bound by the Agreement. 4. Assignment. The rights of the Property Owner under this Agreement may not be transferred or assigned unless the written consent of the City is first obtained. 5 ORDINANCE NO. 1013 5. Binding effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the successors in interest to the parties to it. 6. Relationship of parties. It is understood that the contractual relationship between the City and Property Owner is such that the Owner is an independent contractor and not the agent of the City. 7. Agreement by Proeerty Owner and City. (a) Property Owner has been conditionally granted permission by the City to construct 10 conventional senior housing rental units on the PROPERTY by Precise Plan / Conditional Use Permit 01-24 City Council Resolution No. 02-24 . Pursuant to Chapter 25.52 DEVELOPER is required to set aside two (2) units affordable to lower and moderate income occupants. In lieu of setting aside two units affordable to lower and moderate income occupants developer may choose to make a one time payment of $24,000 (2 units x $12,000) to the City to be used for the purpose of providing low income senior housing. Payment shall be made prior to obtaining building permits for the project. (b) Developer shall advise the City in writing prior to obtaining a building permit regarding the method to be used to satisfy the affordable housing requirement of the project. 0 ORDINANCE NO. 1013 :(A If the applicant chooses to provide two (2) affordable units in the project rather than the payment of the in lieu fee, then the developer shall set aside two (2) studio units in the Project which shall be occupied by age and income qualified persons / households. One (1) unit shall be restricted to a "moderate income" person / household as defined in Municipal Code Section 25.52.030 G and one (1) unit shall be restricted to a "lower income" person / household as defined in Municipal Code Section 25.52.030 G. The maximum rent for each restricted unit shall be as delineated below. (d) Monthly rents for these Affordable Units shall not exceed 30% of the maximum gross monthly income as shown in Exhibit 2. The initial rent and maximum income levels for the Affordable Units during 2002 shall be as follows: Maximum Income Level Unit Type Monthly Rent "Lower" Studio $699 (613 square feet) "Moderate" Studio $874 (613 square feet) NOTE: The monthly rent above assumes that the landlord will pay utility costs. If these costs are not paid by the landlord then the respective maximum monthly rents shall be decreased by $75.00 per month per unit. Income qualified persons shall be persons whose income for "moderate units" does not exceed 100% of median income and in "lower income units" persons whose income does not exceed 80% of median income. 7 ORDINANCE NO. 1013 Property Owner or its assigned management agent shall be responsible for determining the eligibility of prospective tenants. The AFFORDABLE units shall be of a quality and design indistinguishable from the market units, shall be evenly distributed throughout the project and shall be periodically rotated as vacancies permit. The rental rates noted above may be adjusted according to any annual increase in the median income as shown in the United States Department of Housing and Urban Development estimates for Riverside / San Bernardino area or on other more specific HUD estimates for senior citizens. (e) Property Owner shall not discriminate on the basis of race, color or creed, sex, or national origin. (f) Property Owner or its successors in interest shall reserve the controlled units as set forth in this AGREEMENT for the Useful Life of the PROJECT and PROJECT OWNER shall not sell or otherwise change the use of the PROJECT without prior written consent of City. (g) Age limits. The minimum age for all PROJECT occupants shall be 62 years old. (h) Change in Project. No change, modification, revision or alteration may be made in the approved precise plan without review and approval by those agencies of the City approving the plan in the first instance. A change, ORDINANCE NO. 1013 modification, revision or alteration in the approved precise plan is not effective until the parties amend this AGREEMENT to incorporate it. (1) Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of the Property Owner or those of his contractor, subcontractor, agent, employee or other person acting on his behalf which relates to the PROJECT. Property Owner agrees to and shall defend the City and its officers, agents, employees and representatives from actions for damages caused or alleged to have been caused by reason of Property Owner's activities in connection with the PROJECT. This hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operation referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications or both for the PROJECT. Property Owner further agrees to indemnify, hold harmless, pay all costs and provide a defense for City in any action challenging the validity of the DEVELOPMENT AGREEMENT. (j) Periodic Review of Compliance with Agreement. 9 ORDINANCE NO. 1013 I. City Planning Commission shall review this DEVELOPMENT AGREEMENT whenever substantial evidence exists to indicate a possible breach of the terms of this AGREEMENT. ii. At least once each year, Property Owner shall demonstrate good faith compliance with the terms of this DEVELOPMENT AGREEMENT. Property Owner agrees to furnish such evidence of good faith compliance as City, in the exercise of its discretion, may require. City shall have the right to audit the books and records of Property Owner's cost and expense upon request and at least annually. (k) Amendment or Cancellation of Agreement. This DEVELOPMENT AGREEMENT may be amended or canceled in whole or in part by mutual consent of the parties and in the manner provided for in Government Code, Sections 65868, 65867 and 65867.5. (1) Enforcement. Unless amended or canceled as provided in paragraph (k), this DEVELOPMENT AGREEMENT is enforceable by any party to it notwithstanding a change in the applicable general or specific plan, zoning, subdivision, or building regulations adopted by City which alter or amend the rules, regulations or policies governing permitted uses of the land, density, design, improvement and construction standards and specifications. (m) Events of default. Property Owner is in default under this AGREEMENT upon the happening of one or more of the following events or conditions: 10 ORDINANCE NO. 1013 I. If a warranty, representation or statement made or furnished by Property Owner to City is false or proves to have been false in any material respect when it was made; ii. A finding and determination by City made following a periodic review under the procedure provided for in Government Code, Section 65865.1, that upon the basis of substantial evidence Property Owner has not complied in good faith with any of the terms or conditions of this AGREEMENT. iii. Property Owner's failure to maintain the Real Property in substantially the same condition as it exists on the date that City issues the Certificate of Occupancy with respect to the PROJECT or to restore promptly in a good and workmanlike manner any building which may be damaged or destroyed. iv. Property Owner's failure to appear in and defend any action or proceeding purporting to affect the rights or powers of City under the terms of this DEVELOPMENT AGREEMENT, and to pay all costs and expenses, including attorneys' fees in a reasonable sum, in any such action or proceeding in which City may appear. (n) Procedure upon default. If, as a result of periodic review, or other review of this AGREEMENT, the Planning Commission or City finds and determines, on the basis of substantial evidence, that Property Owner has not complied with the terms or conditions of this AGREEMENT, the Commission shall notify the Property Owner or successor in interest as to the specific nature of 11 ORDINANCE NO. 1013 noncompliance, and describe the remedies required to achieve compliance. Property Owner has thirty (30) days upon receipt of notification to take remedial actions. If Property Owner fails to take remedial action within thirty (30) days, the Planning Commission of City shall recommend to the City Council of City that this DEVELOPMENT AGREEMENT be modified, terminated, or that the remedies set forth in this paragraph be exercised by the City. If the City Council of City concurs with the recommendation of the City's Planning Commission, the City Council may modify this Development Agreement, terminate this DEVELOPMENT AGREEMENT, or may employ one or more of the remedies set forth in this paragraph. Proceedings before the City Council shall be by noticed public hearing pursuant to Chapter 25.86 of the Municipal Code of the City of Palm Desert. In the event of a default, City may employ one or more of the following remedies, in its sole discretion: I. City may revoke all previous approvals, entitlements and permits granted by the City to Property Owner with respect to this PROJECT and the subject Real Property. ii. City may pursue all other legal or equitable remedies City may have under California law or as set forth in this DEVELOPMENT AGREEMENT and City shall be entitled to specific performance and enforcement of each and every term, condition and covenant set forth herein. (o) Damages upon Cancellation, Termination of Agreement. In no event shall Property Owner be entitled to any damages against the City upon 12 ORDINANCE NO. 1013 modification, termination of this DEVELOPMENT AGREEMENT or exercise by City of its rights under this DEVELOPMENT AGREEMENT. (p) Attorney's fees and costs. If legal action by either party is brought because of breach of this AGREEMENT or to enforce a provision of this AGREEMENT, the prevailing party is entitled to reasonable attorneys' fees and court costs. (q) Notices. All notices required or provided for under this DEVELOPMENT AGREEMENT shall be in writing and delivered in person or sent by certified mail, postage prepared. Notice required to be given to City shall be addressed as follows: City of Palm Desert, 73-510 Fred Waring Drive, Palm Desert, California 92260. Notices required to be given to Property Owner shall be addressed as follows: -> 6 % � �✓� A party may change the address by giving notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. (r) Rules of Construction and Miscellaneous Items. I. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. ii. If a part of this AGREEMENT is held to be invalid, the remainder of this AGREEMENT is not affected. 13 ORDINANCE NO. 1013 iii. If there is more than one signer of this AGREEMENT their obligations are joint and several. iv. The time limits set forth in this AGREEMENT may be extended by mutual consent of the parties in accordance with the procedures for adoption of an agreement. (s) Duration of Agreement. This AGREEMENT shall expire only upon total destruction of the apartment project which is the subject of this DEVELOPMENT AGREEMENT. (t) Applicable Law. This AGREEMENT shall be construed according to the laws of the State of California. (u) Severability. If any portion of this AGREEMENT is for any reason held to be unenforceable, such determination shall not affect the validity of the remaining portions. (v) Authority. Each of the parties hereto covenants and agrees that it has the legal capacity to enter into this AGREEMENT contained herein, that each AGREEMENT is binding upon that party and that this AGREEMENT is executed by a duly authorized official acting in his official capacity. 14 ORDINANCE NO. 1013 IN WITNESS WHEREOF this DEVELOPMENT AGREEMENT has been executed by the parties on the day and year first above written. Approved as to form: �Z- By City Atto ey Ati STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) CITY OF PALM DESERT RIVER RUN ONE A California LLC By: On this 14th day of October , 2002, before me, a Notary Public in and for said State, personally appeared Marilyn P. Reed known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument on behalf of River Run One , and acknowledged to me that she executed the sar}. r •y. �,j,'� �I •'� •• _ �. .� AEG 15 ORDINANCE NO. 1013 EXHIBIT "1 " LEGAL DESCRIPTION Lot 2 of Palma Village Unit No. 5 as per map recorded in MB20/40-41 of maps, record of Riverside County, California. 16 ORDINANCE NO. 1013 EXHIBIT "2" RIVERSIDE / SAN BERNARDINO INCOME LIMITS PERSONS IN THE HOUSEHOLD 1 Lower Income 1 Moderate Income MAXIMUM MONTHLY INCOME $2,330 / month $2,912 / month MAXIMUM ANNUAL INCOME $27,960 / year $34,900 / year Definitions: "Lower Income" means these are households with incomes that do not exceed 80% of the median family income for a one person household. "Moderate Income" means these are households with incomes that do not exceed 100% of the median family income for a one person household. 17 RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 HOC a ZOOM-7aGM74 12/10/2002 08:00A Fee:NC Page 1 of 17 Recorded in Official Records County of Riverside Gary L. Orso Assessor, County Clerk d Recorder FOR THE BENEFIT OF THE II CITY OF PALM DESERT - NO FEE - M s-1 U PAGE SIZE DA PCOR NOCOR SMF MISC. 6103 OF THE GOVT. CODE A R L COPY LONG REFUND N E%AM Recording Requested .: `V Exhibit "A" to Ordinance No. 1013 C17, .) Senior Housing Development Agreement (Title of Document) t QL k ORDINANCE NO. 1013 EXHIBIT "A" SENIOR HOUSING DEVELOPMENT AGREEMENT RIVER RUN ONE, A CALIFORNIA LLC THIS AGREEMENT is entered into this4-4&ZfZZ,- day of ,2002, between River Run One, a California LLC (hereinafter "Property Owner") and the City of Palm Desert, (hereinafter "City"), a municipal corporation organized and existing under the laws of the state of California. RECITALS This Agreement is predicated upon the following facts: A. Government Code Sections 65864-65869.5 authorize the City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property; B. DEVELOPER is owner of certain real property located within the City of Palm Desert, California, which property is described in Exhibit 1 , attached hereto and made a part hereof (hereinafter "PROPERTY"). DEVELOPER has applied for and been granted approval of a precise plan / conditional use permit (PP/CUP 01-24) and a change of zone from R-3 to R-3 S.O. to construct 10 rental senior housing apartment units on the PROPERTY; 2 ORDINANCE NO. 1013 C. The DEVELOPER has applied for precise plan/conditional use permit approval pursuant to Chapter 25.52 of the Zoning Ordinance, Senior Housing Overlay District which allows for significant density increases in return for building specialized housing designed and restricted to residents over age 62 years; D. Pursuant to Section 25.52.030 F, Affordability Requirements of the Municipal Code 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; E. The City Council of City has found that the development agreement is consistent with the General Plan (and the Palma Village Specific Plan), and Senior Overlay District; and NOW, THEREFORE, the parties agree: requires: 1. Definitions. In this Agreement, unless the context otherwise (a) "City" is the City of Palm Desert. (b) "Project" is the development to be constructed in the City pursuant to Precise Plan / Conditional Use Permit 01-24. "Property Owner" means the person having a legal or equitable interest in the real property as described in paragraph (3) and includes the Property Owner's successor in interest. IYIII�IIMAIVIRIYAIIIIMhINIVIN�IVIIIIB ORDINANCE NO. 1013 (21. (d) "Real Property" is the real property referred to in paragraph (e) "Useful Life of the Project" is the greater of thirty (30) years or the period of time which the Project remains habitable, with reasonable care and maintenance, as determined by City. (f) "Senior Citizen Household" means a maximum two person household of which all members are 62 years of age or older. (g) "Conventional Senior Housing" means rental or ownership units designed and restricted to healthy ambulatory senior citizens who remain capable of performing most activities associated with independent daily life. Other than having smaller units and possessing design features and recreational amenities more compatible with a less active lifestyle conventional senior housing resembles standard housing. (h) "Very Low Income Senior Citizen Housing" means senior citizen households whose gross income does not exceed 50% of the median income for one person households for Riverside County based upon financial and demographic data received from the United States Department of Housing and Community Development (HUD) or its successor agency. This information is included in Exhibit "2" and shall be updated automatically as current data is obtained from HUD. If in the future more relevant data is made available specifically applicable to senior citizens by I�IIIINIIIIAN�IMINIYI�IYwINNI�ININH '`:°'•- ORDINANCE NO. 1013 (HUD) or other officially recognized agencies, such data shall become the basis of this AGREEMENT. (1) "Lower Income Senior Citizen Household" means senior citizen households whose gross income does not exceed 80% of the median income for one person households for Riverside County based upon financial and demographic data received from the United States Department of Housing and Community Development (HUD) or its successor agency. This information is included in Exhibit "2" and shall be updated automatically as current data is obtained from HUD. If in the future more relevant data is made available specifically applicable to senior citizens by (HUD) or other officially recognized agencies, such data shall become the basis of this AGREEMENT. (j) "Moderate Income Senior Citizen Household" means senior citizen households whose income does not exceed 100% of the median income. 2. Description of Real Property. The real property which is the subject of this Agreement is described in Exhibit 1. 3. Interest of Property.Owner. Property Owner represents that he has a full legal and equitable interest in the Real Property and that all other persons holding legal or equitable interests in the Property are to be bound by the Agreement. 4. Assignment. The rights of the Property Owner under this Agreement may not be transferred or assigned unless the written consent of the City is first obtained. ORDINANCE NO. 1013 5. Binding effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the successors in interest to the parties to it. 6. Relationship of ap rties. It is understood that the contractual relationship between the City and Property Owner is such that the Owner is an independent contractor and not the agent of the City. 7. Agreement by Property Owner and City. (a) Property Owner has been conditionally granted permission by the City to construct 10 conventional senior housing rental units on the PROPERTY by Precise Plan / Conditional Use Permit 01-24 City Council Resolution No. 02-24 . Pursuant to Chapter 25.52 DEVELOPER is required to set aside two (2) units affordable to lower and moderate income occupants. In lieu of setting aside two units affordable to lower and moderate income occupants developer may choose to make a one time payment of $24,000 (2 units x $12,000) to the City to be used for the purpose of providing low income senior housing. Payment shall be made prior to obtaining building permits for the project. (b) Developer shall advise the City in writing prior to obtaining a building permit regarding the method to be used to satisfy the affordable housing requirement of the project. wwu�u�m�i�mn6u���min� . ,� v =,4.. ORDINANCE NO. 1013 © If the applicant chooses to provide two (2) affordable units in the project rather than the payment of the in lieu fee, then the developer shall set aside two (2) studio units in the Project which shall be occupied by age and income qualified persons / households. One (1) unit shall be restricted to a "moderate income" person / household as defined in Municipal Code Section 25.52.030 G and one (1) unit shall be restricted to a "lower income" person / household as defined in Municipal Code Section 25.52.030 G. The maximum rent for each restricted unit shall be as delineated below. (d) Monthly rents for these Affordable Units shall not exceed 30% of the maximum gross monthly income as shown in Exhibit 2. The initial rent and maximum income levels for the Affordable Units during 2002 shall be as follows: Maximum Income Level Unit Type Monthly Rent "Lower" Studio $699 (613 square feet) "Moderate" Studio $874 (613 square feet) NOTE: The monthly rent above assumes that the landlord will pay utility costs. If these costs are not paid by the landlord then the respective maximum monthly rents shall be decreased by $75.00 per month per unit. Income qualified persons shall be persons whose income for "moderate units" does not exceed 100% of median income and in "lower income units" persons whose income does not exceed 80% of median income. VJ iuWie�u��uN�Mwui�NinNuiNmi .;;.;_;�.. ORDINANCE NO. 1013 Property Owner or its assigned management agent shall be responsible for determining the eligibility of prospective tenants. The AFFORDABLE units shall be of a quality and design indistinguishable from the market units, shall be evenly distributed throughout the project and shall be periodically rotated as vacancies permit. The rental rates noted above may be adjusted accurding to any annual increase in the median income as shown in the United States Department of Housing and Urban Development estimates for Riverside / San Bernardino area or on other more specific HUD estimates for senior citizens. (e) Property Owner shall not discriminate on the basis of race, color or creed, sex, or national origin. (f) Property Owner or its successors in interest shall reserve the controlled units as set forth in this AGREEMENT for the Useful Life of the PROJECT and PROJECT OWNER shall not sell or otherwise change the use of the PROJECT without prior written consent of City. (g) Age limits. The minimum age for dll PROJECT occupants shall be 62 years old. (h) Change in Project. No change, modification, revision or alteration may be made in the approved precise plan without review and approval by those agencies of the City approving the plan in the first instance. A change, InI�IE�IIIY�IN�INI�IIIIMNIVI�uINNI - "' °``° ORDINANCE NO. 1013 modification, revision or alteration in the approved precise plan is not effective until the parties amend this AGREEMENT to incorporate it. (1) Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of the Property Owner or those of his contractor, subcontractor, agent, employee or other person acting on his behalf which relates to the PROJECT. Property Owner agrees to and shall defend the City and its officers, agents, employees and representatives from actions for damages caused or alleged to have been caused by reason of Property Owner's activities in connection with the PROJECT. This hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operation referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications or both for the PROJECT. Property Ovrner further agrees to indemnify, hold harmless, pay all costs and provide a defense for City in any action challenging the validity of the DEVELOPMENT AGREEMENT. (j) Periodic Review of Compliance with Agreement. 9 IflINUIINYIIII�I��IIIINNIMI�IIINNIIIIII '` 9 �`-' ORDINANCE NO. 1013 I. City Planning Commission shall review this DEVELOPMENT AGREEMENT whenever substantial evidence exists to indicate a possible breach of the terms of this AGREEMENT. ii. At least once each year, Property Owner shall demonstrate good faith compliance with the terms of this DEVELOPMENT AGREEMENT. Property Owner agrees to furnish such evidence of good faith compliance as City, in the exercise of its discretion, may require. City shall have the right to audit the books and records of Property Owner's cost and expense upon request and at least annually. (k) Amendment or Cancellation of Agreement. This DEVELOPMENT AGREEMENT may be amended or canceled in whole or in part by mutual consent of the parties and in the manner provided for in Government Code, Sections 65868, 65867 and 65867.5. (1) Enforcement. Unless amended or canceled as provided in paragraph (k), this DEVELOPMENT AGREEMENT is enforceable by any party to it notwithstanding a change in the applicable general or specific plan, zoning, subdivision, or building regulations adopted by City which alter or amend the rules, regulations or policies governing permitted uses of the land, density, design, improvement and construction standards and specifications. (m) Events of default. Property Owner is in default under this AGREEMENT upon the happening of one or more of the following events or conditions: 10 NIN�INRIIINIIIINIIIIIII�INIIIIINIIINIYI `"'o `'- ORDINANCE NO. 1013 I. If a warranty, representation or statement made or furnished by Property Owner to City is false or proves to have been false in any material respect when it was made; ii. A finding and determination by City made following a periodic review under the procedure provided for in Government Code, Section 65865.1, that upon the basis of substantial evidence Property Owner has not complied in good faith with any of the terms or conditions of this AGREEMENT. iii. Property Owner's failure to maintain the Real Property in substantially the same condition as it exists on the date that City issues the Certificate of Occupancy with respect to the PROJECT or to restore promptly in a good and workmanlike manner any building which may be damaged or destroyed. iv. Property Owner's failure to appear in and defend any action or proceeding purporting to affect the rights or powers of City under the terms of this DEVELOPMENT AGREEMENT, and to pay all costs and expenses, including attorneys' fees in a reasonable sum, in any such action or proceeding in which City may appear. (n) Procedure upon default. If, as a result of periodic review, or other review of this AGREEMENT, the Planning Commission or City finds and determines, on the basis of substantial evidence, that Property Owner has not complied with the terms or conditions of this AGREEMENT, the Commission shall notify the Property Owner or successor in interest as to the specific nature of 11 ;,�;,;.a=;.. ORDINANCE NO. 1013 noncompliance, and describe the remedies required to achieve compliance. Property Owner has thirty (30) days upon receipt of notification to take remedial actions. If Property Owner fails to take remedial action within thirty (30) days, the Planning Commission of City shall recommend to the City Council of City that this DEVELOPMENT AGREEMENT be modified, terminated, or that the remedies set forth in this paragraph be exercised by the City. If the City Council of City concurs with the recommendation of the City's Planning Commission, the City Council may modify this Development Agreement, terminate this DEVELOPMENT AGREEMENT, or may employ one or more of the remedies set forth in this paragraph. Proceedings before the City Council shall be by noticed public hearing pursuant to Chapter 25.86 of the Municipal Code of the City of Palm Desert. In the event of a default, City may employ one or more of the following remedies, in its sole discretion: I. City may revoke all previous approvals, entitlements and permits granted by the City to Property Owner with respect to this PROJECT and the subject Real Property. ii. City may pursue all other legal or equitable remedies City may have under California law or as set forth in this DEVELOPMENT AGREEMENT and City shall be entitled to specific performance and enforcement of each and every term, condition and covenant set forth herein. (o) Damages upon Cancellation, Termination of Agreement. In no event shall Property Owner be entitled to any damages against the City upon 12 IIIIII Wiuii w;�=;_ ' ORDINANCE NO. 1013 modification, termination of this DEVELOPMENT AGREEMENT or exercise by City of its rights under this DEVELOPMENT AGREEMENT. (p) Attorney's fees and costs. If legal action by either party is brought because of breach of this AGREEMENT or to enforce a provision of this AGREEMENT, the prevailing party is entitled to reasonable attorneys' fees and court costs. (q) Notices. All notices required or provided for under this DEVELOPMENT AGREEMENT shall be in writing and delivered in person or sent by certified mail, postage prepared. Notice required to be given to City shall be addressed as follows: City of Palm Desert, 73-510 Fred Waring Drive, Palm Desert, California 92260. Notices required to be given to Property Owner shall b addressed as follows: A party may change the address by giving notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. (r) Rules of Construction and Miscellaneous Items. I. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. ii. If a part of this AGREEMENT is held to be invalid, the remainder of this AGREEMENT is not affected. 13 I�NNI�YIIII�IIINIIIINNIhI�III�IIIINI '"'` ` ORDINANCE NO. 1013 iii. If there is more than one signer of this AGREEMENT their obligations are joint and several. iv. The time limits set forth in this AGREEMENT may be extended by mutual consent of the parties in accordance with the procedures for adoption of an agreement. (s) Duration of Agreement. This AGREEMENT shall expire only upon total destruction of the apartment project which is the subject of this DEVELOPMENT AGREEMENT. (t) Applicable Law. This AGREEMENT shall be construed according to the laws of the State of California. (u) Severability. If any portion of this AGREEMENT is for any reason held to be unenforceable, such determination shall not affect the validity of the remaining portions. (v) Authority. Each of the parties hereto covenants and agrees that it has the legal capacity to enter into this AGREEMENT contained herein, that each AGREEMENT is binding upon that party and that this AGREEMENT is executed by a duly authorized official acting in his official capacity. 14 11111111111111111111 HIM III IN .;,14 ; ORDINANCE NO. 1013 IN WITNESS WHEREOF this DEVELOPMENT AGREEMENT has been executed by the parties on the day and year first above written. Approved as to form: By: City At ney Att STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) CITY OF PALM DESERT RIVER RUN ONE A California LLC By: By: On this 14th day of October , 2002, before me, a Notary Public in and for said State, personally appeared Marilyn P. Reed , known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument on behalf of River Run one , and acknowledged to me that she executed tF�e sam i VIRGINIA WHEALY Commission # 1246W Wary Public - C ffomb Riverside County My Comm. BOw DecZD 2303 15 NIIIIRIIIIR71NImIRIIIINIIIN1�91NllllAtlC "``'''- ORDINANCE NO. 1013 4:013ka" LEGAL DESCRIPTION Lot 2 of Palma Village Unit No. 5 as per map recorded in MB20/40-41 of maps, record of Riverside County, California. 16 YIVI�IVI��YINI�IIIIV�YI�MI�NI�N "'i'''' ORDINANCE NO. 1013 EXHIBIT "2" RIVERSIDE / SAN BERNARDINO INCOME LIMITS PERSONS IN THE HOUSEHOLD 1 Lower Income 1 Moderate Income MAXIMUM MONTHLY INCOME $2,330 / month $2,912 / month MAXIMUM ANNUAL INCOME $27,960 / year $ 34, 900 / year Definitions: "Lower Income" means these are households with incomes that do not exceed 80% of the median family income for a one person household. "Moderate Income" means these are households with incomes that do not exceed 100% of the median family income for a one person household. 17 nm�u