Loading...
HomeMy WebLinkAboutORD 623ORDINANCE NO. 623 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT AND CONDITIONAL USE PERMIT TO ALLOW CONSTRUCTION OF A TWENTY-TWO UNIT SENIOR HOUSING PROJECT ON THE EAST SIDE OF SAN RAFAEL, SOUTH OF CATALINA WAY. CASE NO. CUP 90-18 DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th day of November, 1990, hold a duly noticed public hearing to consider the request of WEBCO PACIFIC to consider 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. 80-89," in that the director of community development has determined that the project will not have a significant negative impact on the environment; 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 agreement complies with the intent and purpose of the Senior Overlay zone and specifically implements affordable senior housing goals contained in the Housing Element of the General Plan. 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 council in this case. 2. That approval of the Development Agreement Exhibit "A" is hereby approved. 3. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Palm Desert Post, 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. ORDINANCE NO. 623 PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this 13th day of December, 1990, by the following vote, to wit: AYES: BENSON, CRITES, KELLY, WILSON, SNYDER NOES: NONE ABSENT: NONE ABSTAIN: NONE WALTER H. SNYDER, Mayo ATTEST: Mf SHEILA R. GIL AN, City/ -Clerk City of Palm Desert, C&Iifornia PD/tm 2 I ORDINANCE NO. 623 EXHIBIT "A" SENIOR HOUSING DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND JOHN H. WEBER AND NANCY A. WEBER THIS AGREEMENT is entered into XI Deceriber 13 , IMLVM 1990, between John H. Weber and Nancy A. Weber, (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. R E C I T A L S 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. Property Owner has requested the City to consider entering into a development agreement and proceedings have been taken in accordance with Government Code Sections 65864-65869.5; C. The City Council of City has found that the development agreement is consistent with the general plan (and the Palma Village Specific Plan); and 3 ORDINANCE NO. 623 D. On December 13 , 1990, the City Council of City adopted Ordinance No. 623 approving the development agreement with Property Owner and the ordinance thereafter took effect on January 12 , MRX 19 91. NOW, THEREFORE, the parties agree: 1. Definitions. In this Agreement, unless the context otherwise requires: (a) "City" is the City of Palm Desert. (b) "Project" is the development proposed to be approved by the City pursuant to Conditional Use Permit 90-18. (c) "Property Owner" means the person having a legal or equitable interest in the real property as described in paragraph (3) and includes the Property Owner's successor in interest; (d) "Real property" is the real property referred to in paragraph (3). (e) "Useful Life of the Project" is the greater of thirty (30) years or the period of time which tr Project remains habitable, with reasonable care and maintenance, as c.:termined by City. (f) "Senior Citizen Household" means a maximum two person household of which all members are 62 years of age or older. (g) "Lower Income Senior Citizen Household" means senior citizen households whose gross income does not exceed 80% of the median income for one and two person households for Riverside County based upon financial and demographic data received from the United States ORDINANCE NO. 623 Department of Housing and Community Development (HUD) or its successor agency. This information is included in Exhibit "H" 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. (h) "Moderate Income Senior Citizen Household" means senior citizen households whose income does not exceed 100% of the median income. 2. Exhibits. The following documents are referred to in this Agreement, attached and made a part by this reference: Exhibit Designation Description A Real property H Palm Desert Affordable Housing Income and Rent Schedule, October 1991 C Conditional Use Permit 90-18 3. Description of real property. The real property which is the subject of this Agreement is described in Exhibit A. 4. 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. 5. Assignment. The rights of the Property Owner under this Agreement may not be transferred or assigned unless the written consent of the City if first obtained. 5 ORDINANCE NO. 623 6. 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. 7. 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. S. Agreements by City. City desires to make the Project affordable to lower and moderate income senior households and desires to implement City's general plan housing goals. In consideration of the agreements set forth herein, the City agrees: (a) Proceedings. City shall conduct, in a timely manner, those proceedings necessary to consider Developer's application for all necessary approvals, including but not limited to a precise plan, for the Project. (b) Certificate of Completion. Promptly after completion of the Project, City shall provide Property Owner with an instrument ("Certification of Completion") so certifying. The Certificate of Completion shall be the conclusive determination that the obligation of Property Owner with respect to construction of the Project has been met. The Certificate of Completion shall be in such form as will enable it to be recorded in the official records of the County of Riverside. 9. Agreements by Property Owner. In consideration of the agreements by City contained in this Agreement, Property Owner agrees: A ORDINANCE NO. 623 (a) Property Owner shall reserve of the total units for rent three (3) units for a Lower Income Senior Household and two (2) units for a Moderate Income Senior Household. Such units shall be referred to as "Affordable Units" for purposes of this Agreement. (b) Monthly rents for these Affordable Units shall not exceed thirty percent (30%) of the maximum gross monthly income as shown for the respective units in Exhibit "B". Rents in Exhibit "B" shall include a utility adjustment as determined by the Riverside County Housing Authority. (c) The maximum initial rents charged, the maximum income levels and the unit mix for the Affordable Units, during the first twelve (12) months following completion of the Project, shall be as follows: Maximum Maximum # of Annual Initial Unit Type Units Income Monthly Rent 1 Bedroom (499.7 sq. ft.) 3 $18,950 (Lower) $388 1 Bedroom (499.7 sq. ft.) 2 $23,650 (Moderate) $504 (d) The Affordable Units shall be of a quality and design indistinguishable from the market units, and shall be evenly distributed throughout the Project. The Affordable Units shall be periodically rotated as vacancies permit. (e) Developer or its assigned management agent shall be responsible for determining the eligibility of prospective tenants. 6 ORDINANCE NO. 623 ' Prior to opening the apartment project, Developer shall submit for approval a plan to City describing the procedure for determining and enforcing eligibility requirements. This plan shall include annual qualification by all eligible households and shall be subject to review and approval by City. The City or its assigned agent may request an audit to determine compliance with all affordable housing provisions of this Agreement. Audit shall be requested as the City deems necessary and shall be at the property owner's expense. (f) The initial rents as described in subsection (c) may be adjusted annually in accordance with the percentage increase shown in the most current applicable lower and moderate income limits for Riverside County published by the United States Department of Housing and Urban Development or any successor agency, adjusted for changes in the Riverside County Housing Authority utility allowance and as verified by the applicable City of Palm Desert Affordable Housing Income and Rent Schedule. (g) Developer shall not discriminate on the basis of race, color or creed, sex, or national origin. (h) Developer or its successors in interest shall reserve the Affordable 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. (i) Age limits. The minimum age for all Project occupants shall be 62 years old. • ORDINANCE NO. 623 (j) Beginning construction. Property Owner agrees to begin the Project within two (2) years after the execution of this Agreement. City Council, at its discretion and for good cause shown, may grant up to three (3) one-year time extensions. 10. 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, modification, revision or alteration in the approved precise plan is not effective until the parties amend this Agreement to incorporate it. 11. 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 relate 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 operations referred to in this paragraph, regardless of whether or not ORDINANCE NO. 623 '1 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. 12. Periodic Review of Compliance With Agreement. (a) City Planning Commission shall review this Development Agreement whenever substantial evidence exists to indicate a possible breach of the terms of this Agreement. (b) 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 or its management company that apply to the Project at Property Owner's cost and expense upon request and at least annually. 13. Amendment or Cancellation of Agreement. This Development Agreement may be amended or cancelled 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. 14. Enforcement. Unless amended or cancelled as provided in paragraph 13, 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 10 ORDINANCE NO. 623 or amend the rules, regulations or policies governing permitted uses of the land, density, design, improvement and construction standards and specifications. 15. Events of default. Property Owner is in default under this Agreement upon the happening of one or more of the following events or conditions: (a) 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; (b) 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. (c) Property Owner's failure to maintain the Real Property in substantially the same condition as it existed on the date that City issued the Certificate of Occupancy with respect to the Project or to restore promptly in good and workmanlike manner any building which may be damaged or destroyed. (d) Property Owner's failure to appear in and defend any action or proceeding purporting to effect the rights or powers of City under the terms of this Development Agreement, and to pay all costs and expenses, including attorney's fees in a reasonable sum, in any such action or proceeding in which City may appear. 11 ORDINANCE NO. 623 16. 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 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. 12 ORDINANCE NO. 623 (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. 17. Damages upon cancellation, termination of Agreement. In no even shall Property Owner be entitled to any damages against the City upon modification, termination of this Development Agreement or exercise by City of its rights under this Development Agreement. 18. Attorneys 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. 19. 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 prepaid. 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: John H. Weber and Nancy A. Weber, 3090 Bayshore, Ventura,. CA 93001-4125. A party may change the address by giving notice in writing to the other party and therefore notices shall be addressed and transmitted to the new address. 13 ORDINANCE NO. 623 20. Rules of construction and miscellaneous terms. (a) The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. (b) If a part of this Agreement is held to be invalid, the remainder of this Agreement is not affected. (c) If there is more than one signer of this Agreement their obligations are joint and several. (d) 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. 21. Duration of Agreement. This Agreement shall expire only upon total destruction of the apartment project which is the subject of this Development Agreement. 22. Applicable Law. This Agreement shall be construed according to the laws of the State of California. 23. Severability. If any portion of this Agreement is for any reason held to be unenforceable, such determination shall not effect the validity of the remaining portions. 24. Authority. Each of the parties hereto covenant 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. 623 IN WITNESS WHEREOF this Development Agreement has been executed by the parties on the day and year first above written. Approved as to form: CITY OF PALM DESERT A Municipal Corporation KANDY LEE ALEEN ` Deputy C*i--y Attorney Attest: By By STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On this Lpt:2' day of � AM A 2 Y , 1996, before me, a Notary Public in and for said State, personally appeared JOH.y g. wEetg #tiANcr A wFgE/t , 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 T)�I=MsFcLes , and acknowledged to me that 7HrY executed the same. ;L 7E.�L T ;V `JTY 17. 13S3 15 ORDINANCE NO. 623 EXHIBIT A LEGAL DESCRIPTION/OWNERSHIP: Lots 14 and 15, block 6 of Palma Village, unit no. 5. As per recorded in book 20, pages 40 and 41 of maps, records of Riverside County, California. OWNERSHIP: John H. Weber and Nancy A. Weber 3030 -bayshore . Ventcira, California 93001 (Pro4act Manager and General Contractor) WEBCO Development Corp. 73-020 El Paseo Palm Desert, California 92260 W114 16 ORDINANCE NO. 623 Lower Income EXHIBIT B MAXIMUM INCOME MAXIMUM RENT $18,950 $388 Moderate Income 23,650 $504 17 J RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: City Clerk's Office City of Palm Desert GO '73-5f0 Fred Waring Drive LO Pelm Desert CA 92260 y ORDINANCE NO. 623 AN ORDINANCE OF THE CITY COUNCIL OF THE 141)56 CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT AND CONDITIONAL USE PERMIT TO ALLOW CONSTRUCTION OF A TWENTY-TWO UNIT SENIOR HOUSING PROJECT ON THE EAST SIDE OF SAN RAFAEL, SOUTH OF CATALINA WAY. CASE NO. CUP 90-18 DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th day of November, 1990, hold a duly noticed public hearing to consider the request of WEBCO PACIFIC to consider 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. 80-89," in that the director of community development has determined that the project will nut have a significant negative impact on the environment; 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 agreement complies with the intent and purpose of the Senior Overlay zone and specifically implements affordable senior housing goals contained in the Housing Element of the General Plan. 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 council in this case. 2. That approval of the Development Agreement Exhibit "A" is hereby approved. 3. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Palm Desert Post, 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. EACH DOCUMENT TO WHICH THIS CERTIFICATE 1S ATTACHED. IS CERTIFIED TO BE A FULL TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE AND ON RECORD IN MY OFFICE. Dated: SHEILA R. GIWGAN, City Clerk City of Palm Desert, California 0RDINANCE NO. 623 i 14056 PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this 13th day of December, 1990, by the following vote, to wit: AYES: BENSON, CRITES, KELLY, WILSON, SNYDER NOES: NONE ABSENT: NONE ABSTAIN: NONE WALTER H. SNYDER, Mayo ATTEST: i SHEILA R. GIL AN, Cit Clerk City of Palm Desert, California PD/tm 2 J ORDINANCE NO. 623 • 140S6 EXHIBIT "A" SENIOR HOUSING DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND JOHN H. WEBER AND NANCY A. WEBER THIS AGREEMENT is entered into R)M December 13 , EiY]67E 1990, between John H. Weber and Nancy A. Weber, (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. R E C I T A L S. 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. Property Owner has requested the City to consider entering into a development agreement and proceedings have been taken in accordance with Government Code Sections 65864-65869.5; C. The City Council of City has found that the development agreement is consistent with the general plan (and the Palma Village Specific Plan); and 3 :,ORDINANCE NO. 623 D. On December 13 1990, the City Council of City adopted Ordinance No. 623 approving the development agreement with Property Owner and the ordinance thereafter took effect on January j 2 Xi,M 19 91. NOW, THEREFORE, the parties agree: 1. Definitions. In this Agreement, unless the context otherwise requires: (a) "City" is the City of Palm Desert. (b) "Project" is the development proposed to be approved by the City pursuant to Conditional Use Permit 90-18. (c) "Property Owner" means the person having a legal or equitable interest in the real property as described in paragraph (3) and includes the Property Owner's successor in interest; (d) "Real property" is the real property referred to in paragraph (3). (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) "Lower Income Senior Citizen Household" means senior citizen households whose gross income does not exceed 80* of the median income for one and two person households for Riverside County based upon financial and demographic data received from the United States 4 1 ,ORDINANCE NO. 623 ;M db 1,4056 Department of Housing and Community Development (HUD) or its successor agency. This information is included in Exhibit "H" 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. (h) "Moderate Income Senior Citizen Household" means senior citizen households whose income does not exceed 100$ of the median income. 2. Exhibits. The following documents are referred to in this Agreement, attached and made a part by this reference: Exhibit Designation Description A Real property H Palm Desert Affordable Housing Income and Rent Schedule, October 1991 C Conditional Use Permit 90-18 3. Description of real property. The real property which is the subject of this Agreement is described in Exhibit A. 4. 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. 5. Assignment. The rights of the Property Owner under this Agreement may not be transferred or assigned unless the written consent of the City if first obtained. 5 ORDINANCE NO. 623 i • 14056 6. 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. 7. 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. B. Agreements by City. City desires to make the Project affordable to lower and moderate income senior households and desires to implement City's general plan housing goals. In consideration of the agreements set forth herein, the City agrees: (a) Proceedings._ City shall conduct, in a timely manner, those proceedings necessary to consider Developer's application for all necessary approvals, including but not limited to a precise plan, for the Project. (b) Certificate of Completion. Promptly after completion of the Project, City shall provide Property owner with an instrument ("Certification of Completion') so certifying. The Certificate of Completion shall be the conclusive determination that the obligation of Property owner with respect to construction of the Project has been met. The Certificate of Completion shall be in such form as will enable it to be recorded in the official records of the County of Riverside. 9. Agreements by Property Owner. In consideration of the agreements by City contained in this Agreement, Property Owner agrees: N. ORDINANCE NO. 623 (a) Property Owner shall reserve of the total units for rent three (3) units for a Lower Income Senior Household and two (2) units for a Moderate Income Senior Household. Such units shall be referred to as "Affordable Units" for purposes of this Agreement. (b) Monthly rents for these Affordable Units shall not exceed thirty percent (30%) of the maximum gross monthly income as shown for the respective units in Exhibit "B". Rents in Exhibit "B" shall include a utility adjustment as determined by the Riverside County Housing Authority. (c) The maximum initial rents charged, the maximum income levels and the unit mix for the Affordable Units, during the first twelve (12) months following completion of the Project, shall be as follows: Maximum Maximum ## of Annual Initial Unit Ty2e Units Income Monthly Rent 1 Bedroom (499.7 sq. ft.), 3 $18,950 (Lower) $388 1 Bedroom (499.7 sq. ft.) 2 $23,650 (Moderate) S504 (d) The Affordable Units shall be of a quality and design indistinguishable from the market units, and shall be evenly distributed throughout the Project. The Affordable Units shall be periodically rotated as vacancies permit. (e) Developer or its assigned management agent shall be responsible for determining the eligibility of prospective tenants. VA H ORDINANCE NO. 623 Prior to opening the apartment project, Developer shall submit for approval a plan to City describing the procedure for determining and enforcing eligibility requirements. This plan shall include annual qualification by all eligible households and shall be subject to review and approval by City. The City or its assigned agent may request an audit to determine compliance with all affordable housing provisions of this Agreement. Audit shall be requested as the City deems necessary and shall be at the property owner's expense. (f) The initial rents as described in subsection (c) may be adjusted annually in accordance with the percentage increase shown in the most current applicable lower and moderate income limits for Riverside County published by the United States Department of Housing and Urban Development or any successor agency, adjusted for changes in the Riverside County Housing Authority utility allowance and as verified by the applicable City of Palm Desert Affordable Housing Income and Rent Schedule. (g) Developer shall not discriminate on the basis of race, color or creed, sea, or national origin. (h) Developer or its successors in interest shall reserve the Affordable Units as not 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. (i) Age limits. The minimum age for all Project occupants shall be 62 years old. ORDINANCE NO. 623 (j) Beginning construction. Property Owner agrees to begin the Project within two (2) years after the execution of this Agreement. City Council, at its discretion and for good cause shown, may grant up to three (3) one-year time extensions. 10. 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, modification, revision or alteration in the approved precise plan is not effective until the parties amend this Agreement to incorporate it. 11. 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 relate 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 operations referred to in this paragraph, regardless of whether or not 9 ORDINANCE NO. 623 • � , 14056 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. 12. Periodic Review of Compliance With Agreement. (a) City Planning Commission shall review this Development Agreement whenever substantial evidence exists to indicate a possible breach of the terms of this Agreement. ( b ) 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 or its management company that apply to the Project at Property Owner's cost and expense upon request and at least annually. 13. Amendment or Cancellation of Agreement. This Development Agreement may be amended or cancelled 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. 14. Enforcement. Unless amended or cancelled as provided in paragraph 13, 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 10 1 or amend the rules, regulations or policies governing permitted uses of the land, density, design, improvement and construction standards and specifications. 15. Events of default. Property Owner is in default under this Agreement upon the happening of one or more of the following events or conditions: (a) 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; (b) 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. (c) Property Owner's failure to maintain the Real Property in substantially the same condition an it existed on the date that City issued the Certificate of Occupancy with respect to the Project or to restore promptly in good and workmanlike manner any building which may be damaged or destroyed. (d) Property Owner's failure to appear in and defend any action or proceeding purporting to effect the rights or powers of City under the terms of this Development Agreement, and to pay all costs and expenses, including attorney's fees in a reasonable sum, in any such action or proceeding in which City may appear. 11 ORDINANCE NO. 623 16. 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 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, th4, 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. 12 ORDINANCE NO. 623 • • 14056 (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. 17. Damages upon cancellation, termination of Agreement. In no even shall Property Owner be entitled to any damages against the City upon modification, termination of this Development Agreement or exercise by City of its rights under this Development Agreement. 18. Attorneys 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. 19. 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 prepaid. 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: John H. Weber and Nancy A. Weber, 3090 Bayshore, Ventura,. CA 93001-4125. A party may change the address by giving notice in writing to the other party and therefore notices shall be addressed and transmitted to the new address. E, 13 ORDINANCE No. 623 • • 140% 20. Rules of construction and miscellaneous terms. (a) The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. (b) If a part of this Agreement is held to be invalid, the remainder of this Agreement is not affected. (c) If there is more than one signer of this Agreement their obligations are joint and several. (d) 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. 21. Duration of Agreement. This Agreement shall expire only upon total destruction of the apartment project which is the subject of this Development Agreement., 22. Applicable Law. This Agreement shall be construed according to the laws of the State of California. 23. Severability. If any portion of this Agreement is for any reason held to be unenforceable, such determination shall not effect the validity of the remaining portions. 24. Authori-ty. Each of the parties hereto covenant 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. 623 14.os(; IN WITNESS WHEREOF this Development Agreement has been executed by the parties on the day and year first above written. Approved as to form: CITY OF PALM DESERT A Municipal Corporation KANDY LEE L N r Deputy C�c�y Attorney /% . . Attest:, .•GL��G,✓ By By STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On this 9 day of v'ANUp A Y , 1996, before me, a Notary Public in and for said State, personally appeared JOH,v y. L�dfar2 J ovAmcr A wree , 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 pjE-^SFc t es —, and acknowledged to me that 7HF7' executed the same. SEAL CA OMY 15 ,4-7( ORDINANCE No. 623 EXHIBIT A LEGAL DESCRIPTION/OWNERSHIP: Lots 14 and 15, block 6 of Palma Village, unit no. 5. As per recorded in book 20, pages 40 and 41 of maps, records of Riverside County, California. OWNERSHIP: John H. Weber and Nancy A. Weber 3u90-Dbayshore . Venture, California 93001 (Pro'act Manager and General Contractor) WEBCO Development Corp. 73-020 E1 Paseo Palm Desert, California 92260 16 0" 1 J r ORDINANCE NO. 623 EXHIBIT B • 14056 MAXIMUM INCOME MAXIMUM RENT Lower Income $18,950 S388 Moderate Income 23,650 $504 17