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HomeMy WebLinkAboutOrd 1070 C/Z 03-013 & DA 04-02 - American Realty Trust - RBF Consulting - Desert Wells 237, LLC 37500 Cook StreetREQUEST: CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT Consideration of approval of a change of zone from PR-5 (planned residential, five dwelling units per acre) to PCD (planned community development), a development agreement to supersede the existing Wonder Palms Development Plan to expand Planning Area No. 5, a master plan of development for the new Planning Area No. 5, and a Negative Declaration of Environmental Impact as it pertains thereto. Property is generally located south of Gerald Ford Drive between Portola Avenue and Cook Street, 37-500 Cook Street. SUBMITTED BY: Steve Smith, Planning Manager APPLICANT: Dan Allred Desert Wells 237, LLC American Realty Trust By Palm Desert 124, Inc. One Hickory Centre 5005 Calle San Raphael 1800 Valley View Lane, Suite 300 Palm Springs, CA 92262 Dallas, TX 75234 RBF Consulting 74-410 Highway 111 Palm Desert, CA 92260 CASE NOS: C/Z 03-013 and DA 04-02 DATE: June 10, 2004 CONTENTS: Recommendation Executive Summary Discussion Draft Ordinance No. 1070 Planning Commission Staff Report dated April 20 and May 4, 2004 Planning Commission Resolution No. 2269 Planning Commission Minutes from April 20, May 4 and May 18, 2004 Staff Report Case Nos. C/Z 03-13 and DA 04-02 Page 2 June 10, 2004 Recommendation: That the City Council waive further reading and pass Ordinance No. 1070 to second reading relating to C/Z 03-13 and DA 04-02. Executive Summary: Consistent with the recent general plan update land use plan for the University Park area, the applicant has proposed this change of zone and a development plan for the area bounded by Cook Street on the east, Gerald Ford on the north and Portola on the west. The University Park Land Use Plan is based on traditional neighborhood design planning principles, emphasizing connectivity between neighborhoods with a mixture of housing products, retail, commercial, office, and parks through a modified grid street system and a series of bikeways and pedestrian paths. The plan provides development standards for low, medium and high density residential (including the specific high density overlay criteria identified in the General Plan), commercial/office professional, mixed use and open space districts. The Planning Commission over the course of three meetings reviewed the requested change of zone and development plan with particular attention paid to the modified development standards. The commission on a 4-1 vote, with Commissioner Finerty voting nay, recommended approval of the development plan. The plan as recommended by Planning Commission is generally consistent with current provisions with identified exceptions justified by superior design. In the medium density category, the plan creates new standards for detached dwellings where there are presently no comparable standards. The new standards will maximize street front architecture and create usable rear yards. Discussion: Background: April 1997 the City Council by its Ordinance No. 838 approved a development agreement (DA 97-2) which included the Wonder Palms Development Plan for Ordinance No. 1070 Staff Report Case Nos. C/Z 03-13 and DA 04-02 Page 3 June 10, 2004 a large area of land which was centered around the Cook Street and Gerald Ford Drive intersection. The property subject to the current applications was partially included in the approved Wonder Palms Development Plan as Planning Areas 3 and 5 (see attached conceptual land plan). In the recent general plan update, this section (Section #33) bounded by Frank Sinatra on the south, Portola on the west, Gerald Ford on the north and Cook on the east was considered as a distinct planning area which made up part of the University Park Area. An addendum to the Wonder Palms Development Plan was approved by City Council April 8, 2004 for the 23.6 acre Evans commercial project at the corner of Gerald Ford and Cook Street. Current Proposal: The current requests, if approved, will supersede the Wonder Palms Development Plan and implement the approved land use plan for Section 33 except for the property owned by the City/RDA. Specifically, the applicant seeks approval of a change of zone from PR-5 (planned residential, five units per acre) to PCD (planned community development) for the entire 296 +/- acres. Next, the applicant seeks approval of the "University Park" development plan which is a detailed land use plan for development on this 296 +/- acre area. The plan provides development standards for low density, medium density and high density residential, as well as the commercial/office professional, mixed use and open space districts. Change of Zone: The area originally covered by the Wonder Palms Development Plan was zoned Planned Community Development (PCD) in 1997. The PCD zone will be expanded to be consistent with the area covered by the new University Park plan. Ordinance No. 1070 Staff Report Case Nos. C/Z 03-13 and DA 04-02 Page 4 June 10, 2004 The proposed PCD zoning will be consistent with the recently approved general plan update and the zoning on the Evans site. University Park Development Plan: The new University Park development plan, when approved, will include the 296 + /- acres south and west of the Evans project on the corner of Cook Street and Gerald Ford and will include the Evans project itself. This development plan will be consistent with the recently approved general plan for this area and will supersede the Wonder Palms plan for this area. The University Park Development Plan provides a vision statement and guiding principles. It then prescribes land uses and the circulation network. The UPDP provides: "1. LAND USES: The University Park Land Use Plan is based on traditional neighborhood design planning principles, emphasizing connectivity between neighborhoods with a mixture of housing products, retail, commercial, office, and parks through a modified grid street system and a series of bikeways and pedestrian paths. University Park is based on five distinct Districts providing the land use framework, the relationships of those uses and backbone infrastructure (i.e., roads, public services). The five Districts include: Residential, Commercial, Office Professional, Mixed Use and Public Parks. The Village Center along Cook Street includes a combination of planning areas including commercial, office, mixed use, and a public park adjacent to the future CSU/UCR campus. 2. CIRCULATION NETWORK: a. Internal Circulation System University Park's internal circulation system provides a hierarchy of streets, laid out in a modified grid pattern to allow for multiple routes to each destination, while discouraging vehicular through traffic on residential neighborhood streets. Refer to Figure 2, Circulation Plan. Figures 3 and 4, Street Cross Sections, illustrate Ordinance No. 1070 Staff Report Case Nos. C/Z 03-13 and DA 04-02 Page 5 June 10, 2004 the multi -modal nature of each street with right-of-way allocations that may include pedestrians, bicycles and private vehicles." In the Development Criteria, Section II, the plan notes: "Applicability The University Park Development Plan is a regulatory plan, which, upon adoption by ordinance will constitute the basic land use and development criteria of the property. Development plans or agreements, tract or parcel maps, precise development plans or any other action requiring ministerial or discretionary approval of the subject property shall be consistent with the Development Plan. Actions deemed to be consistent with the Development Plan shall be judged to be consistent with the City of Palm Desert General Plan as mandated in California Government Code, Section 65454. Should the regulations contained herein differ from the regulations of the City of Palm Desert Zoning Ordinance, the regulations of the Development Plan shall take precedence." and "Review and Approval Process When development of a specific Planning Area is proposed, an application for approval of a Precise Plan shall be filed with and shall be approved by the Planning Commission if the Precise Plan is consistent with the provisions of the Development Agreement, the General Plan, and this document. A Precise Plan may cover one or more Planning Areas of the Project. If a Precise Plan is proposed for an area Tess than a complete Planning Area, a schematic land use plan for the entire Planning Area shall be submitted for that Planning Area. That schematic land use plan shall show that the partial development of the entire Planning Area will not inhibit the overall development of the Planning Area. Subdivision maps, if required, may be submitted and processed concurrently with the Precise Plan application." The plan then breaks out the individual land uses and sets out design objectives, setbacks, height, number of stories and parking requirements among a host of other items. Ordinance No. 1070 Staff Report Case Nos. C/Z 03-13 and DA 04-02 Page 6 June 10, 2004 For the mixed use district the plan provides: Mixed Use District: "The Mixed Use Planning Area" 56.6 total acres (25.8 and 30.2 acres) "allows for a combination of retail and service commercial, office, high density residential uses, as well a live/work units. The intent of the Mixed -Use designation is to create a compact, walkable and pedestrian oriented Planning Area. As such, the Mixed use land use designation stands in contract to traditional zoning that separates residential, commercial, and office/professional zones.... The Mixed -Use Land Use Designation provides for an integrated mixture of uses, including residential, commercial, office, civic, entertainment, educational, recreational and civic uses, with a Floor Area Ratio of 1.0 for commercial/office uses. The mix of uses may be horizontal (side -by -side) or vertical (on top of each other), with commercial or office uses located on the ground floor and with office or residential uses located above. The residential portion of this land use designation is intended to provide for the development of multi -family residential dwellings in an urban atmosphere." Lastly, the plan provides guidelines for the 16.3 acres of park land to be developed in the plan area. Submitted by: Planning Manager Approval: Homer Croy ACM for Develo• 't Services Department Head: Director of Community Development Approval: Carlos L. O ga City Manager (W pdccs\tm\sr\cz03-13.cc2) ORDINANCE NO. 1070 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A CHANGE OF ZONE FROM PR-5 (PLANNED RESIDENTIAL, FIVE DWELLING UNITS PER ACRE) TO PCD (PLANNED COMMUNITY DEVELOPMENT), A DEVELOPMENT AGREEMENT TO SUPERSEDE THE EXISTING WONDER PALMS DEVELOPMENT PLAN TO EXPAND PLANNING AREA NO. 5, A MASTER PLAN OF DEVELOPMENT FOR THE NEW PLANNING AREA NO. 5, AND A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT AS IT PERTAINS THERETO. PROPERTY IS GENERALLY LOCATED SOUTH OF GERALD FORD DRIVE BETWEEN PORTOLA AVENUE AND COOK STREET, 37-500 COOK STREET. CASE NOS. C/Z 03-13 AND DA 04-02 WHEREAS, the City Council of the City of Palm Desert, California, did on 10th the day of June, 2004, hold a duly noticed public hearing to consider the request by AMERICAN REALTY TRUST and MIKE MARIX for approval of the above described project; and WHEREAS, the Planning Commission by its Resolution No. 2269 has recommended approval of said change of zone and development agreement, subject to modification of the development standards; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 02-60," in that the Director of Community Development has determined that the project will not have an adverse impact on the environment and a Negative Declaration of Environmental Impact is warranted based on the data provided as part of the University Village Master Plan, the General Plan Update and EIR; 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 approval of said request: 1. That the proposed change of zone and development agreement are consistent with 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 City Council in this case. 2. That C/Z 03-13, attached hereto as Exhibit A, is hereby approved. ORDINANCE NO. 1070 3. That DA 04-02, a development agreement to supersede the existing Wonder Palms Development Plan to expand Planning Area No. 5 and a master plan of development for the new Planning Area No. 5, attached hereto as Exhibit B, is hereby approved. 4. That a Negative Declaration of Environmental Impact, attached hereto as Exhibit C, is hereby certified. 5. 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 at a regular meeting of the Palm Desert City Council, held on this day of , 2004, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: RACHELLE D. KLASSEN, City Clerk City of Palm Desert, California 2 ROBERT A. SPIEGEL, Mayor P.R.-5 —CERAID—F D—DR P.R.-5 u—i P.C.D. P.C.D. GERALD FORD DR P.C.D. .R.-5 111111111 ra:rery • DR P.R.-5 P.R.-5 r .1'age P.R.-5 P.C.-(2) o.s. City of Palm Desert P.R.-5 P.R.-5 P.R.-5 U� FRANICTINAIRA DR P.R.-5 P.R.-5 P.C.D.; .FCOZ, ORDB37 P.C.D., -t P.C.D., OR10837 FCOZ ORD837 / P.C.D., FCOZ. 0RD837 P.C. FCOZ, 0R0837 P.C.D., FCOZ 0RD837 P.R.-5 P.R.-5 P.C.D., FCOZ \\y. P.R.-5 PRl-5 P.R rns O� 0 'o P.C:D.rFCOZ P.C.D. P.R.-5 P.R.-5 4 BERGIR RD rr^ / P.R.-5 P.C.D Rp P.0 Case No. C/Z 03-13 ciri COUJNCIL CHANGE OF ZONE EXHI ,111, i IT A Proposed Zoning Change P.R.-5 To P.C.D. ORDINANCE NO. 1070 Date: ORDINANCE NO. 1070 EXHIBIT C Pursuant to Title 14, Division 6, Article 6 (commencing with section 15070) of the California Code of Regulations. NEGATIVE DECLARATION CASE NOS: C/Z 03-13 and DA 04-02 APPLICANT/PROJECT SPONSOR: Dan Allred American Realty Trust One Hickory Centre 1800 Valley View Lane, Suite 300 Dallas, TX 75234 Desert Wells 237, LLC By Palm Desert 124, Inc. 5005 Calle San Raphael Palm Springs, CA 92262 PROJECT DESCRIPTION/LOCATION: RBF Consulting 74-410 Highway 1 1 1 Palm Desert, CA 92260 A change of zone from PR-5 (planned residential, five dwelling units per acre) to PCD (planned community development), a development agreement to supersede the existing Wonder Palms Development Plan to expand Planning Area No. 5, a master plan of development for the new Planning Area No. 5, and a Negative Declaration of Environmental Impact as it pertains thereto. Property is generally located south of Gerald Ford Drive between Portola Avenue and Cook Street, 37-500 Cook Street. The Director of the Department of Community Development, City of Palm Desert, California, has found that the described project will not have a significant effect on the environment. A copy of the Initial Study has been attached to document the reasons in support of this finding. Mitigation measures, if any, included in the project to avoid potentially significant effects, may also be found attached. PHILIP DRELL DATE DIRECTOR OF COMMUNITY DEVELOPMENT 3 CITY OF F'P1LPELIP 7 3—; i o FRE._> X ARING DKR, PALM DESERT, CAI IFOR\IA 9. 260-2;78 TEL: 760 346-0611 FAX: 760 341-7o98 infC19 pai m-desert. org PLANNING COMMISSION MEETING NOTICE OF ACTION Date: May 20, 2004 Dan Allred American Realty Trust One Hickory Centre 1800 Valley View Lane, Suite 300 Dallas, Texas 75234 RBF Consulting 74-410 Highway 111 Palm Desert, California 92260 Re: C/Z 03-13 and DA 04-04 : L ) L Desert Wells 237, LLC By Palm Desert 124, Inc. 5005 Calle San Raphael Palm Springs, California 92262 The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its regular meeting of May 18, 2004: PLANNING COMMISSION RECOMMENDED TO CITY COUNCIL APPROVAL OF CASE NOS. C/Z 03-13 AND DA 04-04 BY ADOPTION OF PLANNING COMMISSION RESOLUTION NO. 2269, SUBJECT TO MODIFICATIONS TO THE DEVELOPMENT STANDARDS ON THE ATTACHED TABLE. MOTION CARRIED 4-1 (COMMISSIONER FINERTY VOTED NO). DEVELOPMENT STANDARDS/MODIFICATIONS ARE AS FOLLOWS: LOW DENSITY PR-4 standards, specifically the minimum lot size of 8,000 square feet, minimum lot width of 70 feet, delete references to zero foot setbacks for garages and interior side yards, building height 18 feet for one story, 24 feet for two story, accessory structures 18 feet for single story and 24 feet for two story. Heights above 24 feet is Ali] ;A iFCt 3 P1 :i PLANNING COMMISSION NOTICE OF ACTION CASE NOS. C/Z 03-13 and DA 04-04 MAY 20, 2004 are subject to discretionary exceptions provision. The exceptions language should also refer to the possibility of minimum lot sizes of 7,200 square feet, lot widths of 60 feet, five foot projections/architectural features will also be discretionary and no more than 10% of the roof. Exceptions language should also indicate that an example of a compelling argument for an exception to the minimum 8,000 square foot lot size might be unique topography. Detached accessory structures shall only be built in the primary structure setback envelope. MEDIUM DENSITY Standards as proposed with the addition of one story being 18 feet, two story 24 feet. Additional height may be allowed as specified in the exceptions section. Accessory structures would also be one story/18 feet and two story/24 feet. Roof projections/ architectural features will be 10% or Tess of roof area. Rear yard setback 20 feet, lot coverage 50%. All other standards subject to discretionary exceptions provisions. HIGH DENSITY By definition all design standards within the High Density zone are discretionary. Differentiation between perimeter setbacks and interior building setbacks within a project should be added to say 20 feet to interior property line in addition to 20 feet from curb for basic perimeter setbacks. The building separation between structures would be 10 feet for single story, 15 feet between two story or more. Delete category for accessory structures. roof projections/architectural features will be 10% or Tess of the roof area. Building height above two stories will be an exception as outlined in the footnote. Any appeal of the above action may be made in writing to the City Clerk, City of Palm Desert, ithin fifteen (15) days of the date of the decision. Philip Drell, Se�retary ,�^'' Palm Desert PI nning Commission /t m cc: Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal CITY Of PRUID DESERT Comparison Table R-1 PR-4 Standards 8,000 s.f. 8,000 s.f. 70ft------ One story 35% to 50% with DRC approval Two story 25% 20 ft One story 15 ft Two story 25 ft Single story 5 ft minimum, 16 ft total Two story 15 ft each side 10 ft side street One story 18 ft Two story 24 ft R-1 Standards 8,000 s.f. or larger per zoning map 70 ft --- ---- 35% to 50% with DRC approval 20 ft Note 1 15 ft 5 ft minimum, 14 ft total 10 ft street side yard 1 story 18 ft 8,000 s.f. conventional lots 7,200 s.f. 70 ft 35 ft - knuckles & cul-de-sacs at property line 90 ft 45% 20 ft — from back of curb' 10 ft — from back of curb' 20 ft — from back of sidewalk' 15 ft — from back of sidewalk' 20 ft, 0 ft — for garage only 5 ft. min., 14 ft combined, 0 ft — for garage only 10 ft... - -- --- 20 ft — from back of sidewalk' 24 ft/2 stories 10 ft 5 ft above primary structure Low Density Standards Average Lot Size/Area: Minimum Lot Size: Minimum Lot Width Minimum Lot Depth Lot Coverage's (Main Structure & Accessory Structures) Front Yard Setbacks (min) Main living area Open Porch Garage (front access) Garage (side -in access where provided) Rear Yard Setback (min) Side Yard Setback (min) Interior Corner/Street Garage Building Height Primary Structure 2 Accessory Structure Projections/Architectural Features 0 0 0 0 0 / 0 § i a)\ \ Z e \ - co\ @ co £ / ./ ( . . § k \ / \ { / \ / 0 00 ki\ § k§ 000 %y $2 )/i 0 _ § ;\ =0 / \ __ R 0/ ° 0. . -0fai g& %/ k7J %0 a CV §m§ \f .0 /k» // kc cn §)\ >.- 7 $ ±af E7 E0 )«2 0 =§ ®& km E\ g«% 2a 7 e ,aE22\ " E- > D k3 S/ I9 -§ _ o• -- 0/ CE =ma _\ (0 >} 11 > = _ (o ] g § 17 \/ \\ oKc {@\ 9 21Ig L 2 f 0 8 us c. ® 0500 °S ■ $2I/<&o 2 zww a4 MI.. Comparison Table R2 PR Standards Cluster Development 2,500 s.f. --- - --- - Note 2 Note 2 -....— ..- ----- 2 story 24 ft R-2 Standards . % Eg �2 » 2 = \ \ 4- : E E a R \ 0 \k ,. r= \3 3,500 sq. ft. 3,000 sq. ft. 15 ft 10 ft 20 ft - from back of sidewalk2 10 ft - from back of sidewalk2 15 ft 5 ft/ 0-ft for garage Note 1 10 ft Same as house 24 ft/2 stories 20 ft (main building envelope)' 5 ft above primary structure Medium Density Development Standards Average Lot Size: Minimum Lot Size Lot Coverage (Main Structure)' Front Yard Setbacks (min) Main Living Area Open Porch Garage (front access, where provided) Garage (side -in access) Rear Yard Setback Side Yard Setback Interior Corner/Street Garage Building Height Primary Structure Accessory Structure Projections/Architectural Features 4 g a) \ eL % 0 in 0 E / = g E k - { \ ƒ .0 _ \ 0 c \ f 0 )/ 0. \w }§ \ \/ \) / \{ .c #o 2c )/ .c \ ` 1-2 2 .0 7 .o / u)0 ƒs °° of �0. \ • \ ƒ \/ 0 ca c§ 0f {f k �/ /\ !§ /.§ 20 {/ /E 0 0• °®E #\# 3u L3 a.. c o /} E3 - .0 [j )\\ k%` 75 0=2. ] 0 2 = @ ./ / g g§* {\ \=bt - / E « & �F0 \\ _= a /\/ )} %�\/_/ }\m - J 3 \ 2 ( /� �22_22 %f% /0 .5f 7 [ °cc 003 f�k \\ ,.99E2= 0Ef = \ \ oc 3\k &* © kk2 / , 0 2! °■ 2 2 § m \\/ §/ iE--2k\ =422 - �8C0C® �2� �aCI)2 a) 0 a) o] 2 u I— 0 2- c /e\§}e ______� \�(�43 %�reu)27/ k}C 32 a Comparison Table R-3 / � \ I 10 ft 8 ft minimum 20 ft total / // c, y = = - ƒa - - / / / 2 f f \ \ \ 10,000 s.f. 2,500 s.f. 90 ft 100 ft » - \ $ z f k 5 BE �= Ls% e ± c ft, \ @ u §� •- - - a- \[ /ƒ > i= = 7\ 0 g t/- ==,= = /2=0 2 I .1 /\\. \2f\%Q/ High Density Development Standards Minimum Project Size/Area: Minimum Lot Size -detached Minimum Lot Width Minimum Lot Depth Lot Coverage (Main Structure) Front Yard Setbacks (min) Main Structure Open Porch Rear Yard Setback (min) Side Yard Setback (min) Perimeter Corner/Street Building Separation Attached Front facade to any other facade Side facade to side or rear facade Rear facade to rear facade Building Height Attached Accessory Structure Projections/Architectural Features se,i co = m 1E a) -c /\{/ \2\\ f ; E « = 2 n 2@\/% 00)— \ f / m / -0 / % 2 NW\§\$ /§�\ =@S2E coati \5§2 /£7- ufE3/ f k\ / §jkfE ao® 222� m-® } 20 o • eEE` #°z2 ( _0 -a\2m u£\I E c \- I- Em.\p &_=o t®, c .__ •''-. §17a2o _- k/f)» UI®-c-a ; Ee2$ =Ie0—e 00E=3 ml$EE■ J22® Oi\ Im< -2e,6 {c!&< q zw w a.... COMMERCIAL STANDARDS MATRIX O.P. C-1 PC-1 PC-2 PC-3 PC-4 Setbacks Front 15' avg. 5' 25' 20' 30' 30' 1 to 1 min. Rear 0-65' 0' 0-20' 20' 20' Side 0-10' 0' 0-20' 20' 15' Building Height 25' 30' 25' 30' 35' 35' Coverage 50% 40% 50% 40% PLANNING COMMISSION RESOLUTION NO. 2269 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A CHANGE OF ZONE FROM PR-5 (PLANNED RESIDENTIAL, FIVE DWELLING UNITS PER ACRE) TO PCD (PLANNED COMMUNITY DEVELOPMENT), A DEVELOPMENT AGREEMENT TO SUPERSEDE THE EXISTING WONDER PALMS DEVELOPMENT PLAN TO EXPAND PLANNING AREA NO. 5, A MASTER PLAN OF DEVELOPMENT FOR THE NEW PLANNING AREA NO. 5, AND A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT AS IT PERTAINS THERETO. PROPERTY IS GENERALLY LOCATED SOUTH OF GERALD FORD DRIVE BETWEEN PORTOLA AVENUE AND COOK STREET, 37- 500 COOK STREET. CASE NOS. C/Z 03-13 AND DA 04-02 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on 20th the day of April, 2004, hold a duly noticed public hearing which was continued to May 4 and May 18, 2004, to consider the request of AMERICAN REALTY TRUST and MIKE MARIX for approval of the above described 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. 02-60," in that the Director of Community Development has determined that the project will not have an adverse impact on the environment and a Negative Declaration of Environmental Impact is warranted based on the data provided as part of the University Village Master Plan, the General Plan Update and EIR; 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 request: 1. That the proposed change of zone and development agreement addendum are consistent with the General Plan and the University Park Plan. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, California, as follows: 1. That the above recitations are true and correct and constitute the findings of the Planning Commission in this case. 2. That C/Z 03-13, attached hereto as Exhibit A, is hereby recommended to City Council for approval. PLANNING COMMISSION RESOLUTION NO. 2269 3. That a Negative Declaration of Environmental Impact, attached hereto as Exhibit B, is hereby recommended to City Council for certification. 4 That Addendum #3 to DA 04-02, attached hereto as Exhibit C, is hereby recommended to City Council for approval. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 18th day of May, 2004, by the following vote, to wit: AYES: CAMPBELL, LOPEZ, TSCHOPP, JONATHAN NOES: FINERTY ABSENT: NONE ABSTAIN: NONE ATTEST: . A .' 1r PHILIP DRELL; Sep cretary Palm Desert Planning Commission 2 SABBY JONATHAN, Chairperson PR-5 !; —GTRALD FORD P R -5 P R -5 I WNW/. utii Lj- P C.D. PC D NNPCD , ) 3ORD8 7 FCO2 ."' l' -\ PCD, FC0Z \ - 7 770837 1 PC04 ORD837 PR-5 AcAormr IN r 2 PR-5 '0 oc \) ! \ D837 P.0 pD R, .7502 1, 1 LJ Vq,C! A • 5 1 DR c COE ir : I P R -5 ) r P C -(2) as // ty of Palm Desert P R -5 GERALD FORD DR P. R -5 t c--1 • P.R -5 P R -5 FRANKE/NATRA DR FCOZ 0 D837 1 P R -5 P R -5 P R -5 PR•5 Case No. CiZ 03-13 CHANGE OF ZONE EXHIBIT A P P R. -5 6,1 8IRCeR RD 0 , 1; A / CD Proposed Zoning Change P.R.-5 To P.C.D. PLANNING COMMISSION RESOLUTIONNO., 22(09 Date: PLANNING COMMISSION RESOLUTION NO. 2269 EXHIBIT B Pursuant to Title 14, Division 6, Article 6 (commencing with section 15070) of the California Code of Regulations. NEGATIVE DECLARATION CASE NOS: C;'Z 03-13 and DA 04-02 APPLICANT/PROJECT SPONSOR: Dan Allred American Realty Trust One Hickory Centre 1800 Valley View Lane, Suite 300 Dallas, TX 75234 Desert Wells 237, LLC By Palm Desert 124, Inc. 5005 Calle San Raphael Palm Springs, CA 92262 PROJECT DESCRIPTION/LOCATION: RBF Consulting 74-410 Highway 111 Palm Desert, CA 92260 A change of zone from PR-5 (planned residential, five dwelling units per acre) to PCD (planned community development), a development agreement to supersede the existing Wonder Palms Development Plan to expand Planning Area No. 5, a master plan of development for the new Planning Area No. 5, and a Negative Declaration of Environmental Impact as it pertains thereto. Property is generally located south of Gerald Ford Drive between Portola Avenue and Cook Street, 37-500 Cook Street. The Director of the Department of Community Development, City of Palm Desert, California, has found that the described project will not have a significant effect on the environment. A copy of the Initial Study has been attached to document the reasons in support of this finding. Mitigation measures, if any, included in the project to avoid potentially significant effects, may also be found attached. 'IVrHT PHILIP DRELLI DATE DIRECTOR OF COMMUNITY DEVELOPMENT 2004 PLANNING COMMISSION RESOLUTION NO. 2269 EXHIBIT C 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 (UNIVERSITY PARK DEVELOPMENT PLAN) Dated: , 2004 C:\Documents and Settings'.Robcrt.ilargrcavesNy Documents"PAL\'1 DESERT - University. Development Plan Development Agreement v I .doc PLANNING COMMISSION RESOLUTION NO. 2269 DEVELOPMENT AGREEMENT (University Park) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of this day of , 2004, 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 ("Developer"), with reference to the following facts, understandings and intentions of the parties: RECITALS A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. Government Code Sections 65684 through 65869.5 inclusive (the "Development Agreement Legislation") authorize the City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983, the City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance"), procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. C. Developer is the owner of a legal or equitable interest in the Property and is entitled to have filed the application for and to enter into this Agreement. The Project consists of the future development of the Property. The Property is located within an important planning area (University Park Area) of the City and the coordinated development of the Project pursuant (':'.Documents and Settings',Robert.Hargreaves'•My Documents\PALM DESERT - University Development Plan Development Agreement vl.doc PLANNING COMMISSION RESOLUTION NO. 2269 to this Agreement represents an important and mutually beneficial economic development and land usage planning opportunity' for the City and Developer. D. In April 1997, the City Council, by its Ordinance No. 838, approved a Development Agreement (DA 97-2) which included a development plan for a large area of land which was centered around the Cook Street and Gerald Ford Drive intersection. DA 97-2 incorporated the Wonder Palms Development Plan, including eight planning areas. A portion of the Property was included in the approved Wonder Palms Development Plan as Planning Areas 3 and 5. It is the intent of the parties to this Agreement that this Agreement supercede DA 97-2 with respect to any portion of the property subject to DA 97-2. E. In the 2004 General Plan update, the section (Section 33) within which the Property is located, (bounded by Frank Sinatra on the south, Portola on the west, Gerald Ford on the north, and Cook on the east), was 'considered a distinct planning area which made up part of the University Park Area. F. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals, policies, general land uses and development programs of the City as set forth in the City's University Park Area of the General Plan, and is consistent with the existing Planned Community Development (PCD) Overlay Zone. G. City has further determined that entry into this Agreement will further the goals and objectives of the City's land use planning policies by, among other things, encouraging investment, providing precise and supplemental criteria for the uses, design, circulation and development of the Property, including flexibility in land use options which may be altered in 2 C:''Documents and Settings',Robert.FlargreavesAty Documents'.PALM DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 order to respond to future changes in the surrounding areas, eliminating uncertainty in planning for, and securing orderly processing and development of: the Project. The benefits conferred on the City by Developer herein will (i) ensure consistent, comprehensive planning which will result in aesthetically pleasing, environmentally harmonious, and economically viable development within the City; and (ii) further the development objectives of the City in an orderly manner, all of which will significantly promote the health, safety and welfare of the residents of the City. In exchange for these benefits to the City, Developer desires to receive the assurance that it may proceed with the Project in accordance with the University Park Development Plan ("Development Plan") attached to this Agreement as Exhibit "A", and at a rate of development of its choosing, subject to the terms and conditions contained in this Agreement. H. 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. I. This Agreement has undergone extensive review by the City's staff, the Planning Commission and the City Council. J. In order to effectuate the foregoing, the parties desire to enter into this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 3 C:`.Documents and Scttines.Robert.Hargreaves.My Documents,PALM DESERT - University Development Plan Development Agreement v l .doe PLANNING COMMISSION RESOLUTION NO. 2269 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 tern. 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. effective. 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 1.6 Enacting Ordinance. Ordinance , enacted by the City Council on , 200, approving this Agreement. 1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall 4 C:'•.Documcnts and Settines',.Robert.f-fargrcavcs\My Documents\PALM DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 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 mixed -use commercial, industrial and residential development and associated amenities, and on -site and off -site improvements, as permitted under and described in the Development Plan (Exhibit "A"), to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement. 1.11 Property. The real property and any improvements thereon which is described in Exhibit "B" to this Agreement. 2. Term; Amendment. 2.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on the ten (10) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. 2.2 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as provided herein shall be effected only upon compliance with the procedures for amendment, if 5 CADocuments and Settings\Rohert.Hargreaves'.My Documents.PALM DESERT - University Development Plan Development Agreement vl doe PLANNING COMMISSION RESOLUTION NO. 2269 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. Supercede DA 97-2. This Agreement shall supercede DA 97-2 (recorded by Riverside County Recorder on May 22, 1997 as Instrument No. 179687) with respect to any portion of the Property subject to DA 97-2. 4. General Development of the Project. 4.1 Project. (a) The Project is defined and described in the University Park Development Plan attached to this Agreement as Exhibit "A", which specifies for the purpose of this Agreement all of the following aspects of the Project: (i) proposed land uses of the Property; (ii) the maximum (and probable) density and intensity of development of the Property; (iii) certain parking requirements; and (iv) sizing requirements for the construction of certain utility facilities; (v) certain requirements relating to access and traffic circulation within the Property; (vi) certain design guidelines relating to the construction of on -site and off -site improvements; (vii) procedures for development within the Planning Areas. (b) Developer shall have the vested right to develop the Project in accordance with, and development of the Project during the Term shall be governed by, the Development Plan and, to the extent not inconsistent with or modified by the Development Plan, the Existing Land Use Ordinances. Developer's right to develop the Property in accordance with this Section 4.1 shall be without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City, including, without limitation, those 6 C^,Documents and Settings,Robert.liargreaves\\My Documents PALM DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 with respect to moratoriums for utility service, other than ordinances, resolutions, rules. regulations and policies of the City which limit or condition the rate, timing. or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. 4.2 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 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 obtain from the City, all necessary approvals, consents, permits, or other entitlements for the construction of not less than the maximum number of square feet of gross floor area or dwelling units of any permitted use under the Development Plan specified with respect to any designated Planning Area set forth in the Development Plan. 7 C'.'•Documents and Settings\Robcrt.Hargreaves\My Documents\PAI.MM DESERT - University Development Plan Development Agreement vl .dog PLANNING COMMISSION RESOLUTION NO. 2269 4.3 Building Permits and Other Approvals and Permits. Subject to (a) Developer's compliance with this Agreement, the Development Plan, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general application, the City shall process and issue to Developer promptly upon application therefor all necessary use permits, building permits, occupancy certificates, and other required permits for the constriction, 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). 4.4 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, terns 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 Development Plan. 4.5 Effect of Agreement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to 8 C.%..Documents and Settings`•Robert.Hargreaves'.N4y Documents`.PALM DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 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, xvhether 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 or provision of on -site and off -site improvements as set forth in the Development Plan and the Existing Land Use Ordinances, and the timing provisions of Section 4.2, 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 the public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. 4.6 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 9 C^.Documents and Settings`, Robertilargreaves\My Documents' PALM DESERT - University Development Man Development Agreement vl.doc PLANNING COMMISSION RESOLUTION NO. 2269 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 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. 5. Specific Criteria Applicable to Development of the Project. 5.1 University Park Development Plan. The Development Plan is a regulatory plan which, upon adoption by ordinance, will constitute the basic land use and development criteria of the property. Development plans or agreements, tract or parcel maps, precise development plans or any other action requiring ministerial or discretionary approval of their property shall be consistent with the Development Plan. Should the regulations contained in the Development Plan differ from the regulations of the Palm Desert Zoning Ordinance, the regulations of the Development Plan shall take precedence. 5.2 Applicable Ordinances. Except as set forth in the Development Plan 10 C :'.Documents and Settines`,Rouert.Hargreaves.Mv Documents,PALM DESERT - University Development Plan Development Agreement vI.doe PLANNING COMMISSION RESOLUTION NO. 2269 and subject to the provisions of Section 5.3 and 5.4 below, the Existing Land Use Ordinances shall govern the development of the Property hereunder and the granting or withholding of all permits or approvals required to develop the Property; provided, however, that (a) Developer shall be subject to all changes in processing, inspection and plan -check fees and charges imposed by City in connection with the processing of applications for development and construction upon the Property so long as such fees and charges are of general application and are not imposed solely with respect to the Property, and (b) Developer shall abide by the Building Ordinances in effect at the time of such applications. 5.3 Amendment to Applicable Ordinances. In the event that the Palm Desert zoning ordinance is amended by the City in a manner which provides more favorable site development standards for the Property or any part thereof than those in effect as of the Effective Date, Developer shall have the right to notify the City in writing of its desire to be subject to all or any such new standards for the remaining term of this Agreement. If City agrees, by resolution of the City Council or by action of a City official whom the City Council may designate, such new standards shall become applicable to the Property or portions thereof. Should City thereafter amend such new standards, upon the effective date of such amendment, the original new standards shall continue to apply to the Property as provided above, but Developer may notify City in writing of its desire to be subject to all or any such amended new standards and City may agree in the manner above provided to apply such amended new standards to the Property. 5.4 Modification or Suspension by State Law or Federal Law. In the event that state or federal laws or regulations, enacted after the effective date of this Agreement, 11 C:`.Documents and Settings \Robert.Hargreaves\My Documents\PALM DESERT - University Development Plan Development Agreement vl.doc PLANNING COMMISSION RESOLUTION NO. 2269 prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations, and to the extent that such laws or regulations do not render such remaining provisions impractical to enforce. 5.5 Easements; Abandonments. City shall cooperate with Developer in connection with any arrangements for abandoning existing utility or other easements and the relocation thereof or creation of any new easements within the Property necessary or appropriate in connection with the development of the Project; and if any such easement is owned by City, City shall, at the request of Developer and in the manner and to the extent permitted by law, take such action and execute such documents as may be necessary to abandon existing easements and relocate them, as necessary or appropriate in connection with the development of the Project, all at the cost and expense of the Developer. In addition, to the extent that temporary or permanent easements on property adjacent or in close proximity to the Property will be required in order for Developer to develop all or portions of the Project, the City shall cooperate with Developer in efforts to obtain or secure any such required easements. 6. 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 City, and after reasonable exercise of its discretion and after 12 C:'•.Documcnts and Settings\Robert.Hargreaves\My Documents\PALM DESERT - University Development Plan Development Agreement vl.doc PLANNING COMMISSION RESOLUTION NO. 2269 reasonable notice to Developer, may require. 7. Permitted Delays; Supersedure by Subsequent Laws. 7.1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of mother nature, civil commotion, riots. strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits or other entitlements related thereto, or restrictions imposed or mandated by governmental or quasi -governmental entities, enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws"), orders of courts of competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations shall be extended by the period of any delay hereunder. 7.2 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 13 C:`,Documents and Settings\.Robert.l largreaves\\My Documents \.PALM DESERT - University Development Plan Development Agreement vi doc PLANNING COMMISSION RESOLUTION NO. 2269 of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 7.1 above, for a period of time equal to the length of time the challenge was pursued. 8. Events of Default; Remedies; Termination. 8.1 Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 7 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 14 C':'.Documents and Settings '.Robert.l Iargreaves,Mv Documents•,PALM DESERT - University Development Plan Development Agreement v l .doc PLANNING COMMISSION RESOLUTION NO. 2269 of legal proceedings with respect thereto, or issuance of any permit, map, certificate of occupancy, approval or entitlement with respect to the Project. 8.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting party shall have such rights and remedies against the defaulting party as it may have at law or in equity, including, but not limited to, the right to damages and the right to tenninate this Agreement or seek mandamus, specific performance, injunctive or declaratory relief. Notwithstanding the foregoing and except as otherwise provided in Section 8.4 hereof, if either Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of Default, such proceeding of termination shall constitute such party's exclusive and sole remedy, and with respect to such election City and Developer hereby waive, release and relinquish any other right or remedy otherwise available under this Agreement or at law or equity. 8.3 Waiver; Remedies Cumulative. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party shall not constitute waiver of such party's right to demand strict compliance by such other party in the future. All waivers must be in writing to be effective or binding upon the waiving party, and no waiver shall be implied from any omission by a party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time specified in such express waiver. 8.4 Effect of Termination. Termination of this Agreement by one party due to the other party's default, or as a result of the exercise of the right of termination provided to the Developer under Section 7.2 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 15 ('.\Documents and Settings%%Robert.Harereaves`Mv Documents\PALM DESERT - University Development Ilan Development Agreement v l .doe PLANNING COMMISSION RESOLUTION NO. 2269 which were issued, approved or provided by the City prior to the date of termination of this Agreement. If City terminates this Agreement because of Developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this Agreement, subject to any reimbursement obligations of the City. If Developer terminates this Agreement because of City's default. or as a result of the exercise of the right of termination provided to the Developer under Section 7.2 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 8.4, all of the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of the termination of this Agreement. If this Agreement is terminated pursuant to any provision hereof; then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne by the party causing such action. 8.5 Third Party Actions. Any court action or proceeding brought by any third party to challenge this Agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the Project, whether or not Developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under Section 7.1. 9. Encumbrances on Property. 9.1 Discretion to Encumber. The parties hereto agree that this Agreement 16 C:`,Documents and Settings:Robcrt.Hargreavesgvly Documcnts'•.PALM DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon with any mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain modifications to this Agreement, and the City agrees upon request. from time -to -time, to meet with Developer and/or representatives of such lenders to negotiate in good faith any such request for modification. City further agrees that it will not unreasonably withhold its consent to any such requested modification. 9.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure. trustee's sale. deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 9.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section 9.2, no Mortgagee will have any obligation or duty under this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. 9.4 Estoppel Certificates. Either party may, at any time, and from time to 17 C:\Documents and Settings\Robert.F{argreaves'.My Documents\PAL.M DESERT - university Development Plan Development Agreement vi .doe PLANNINGCOMMISSION RESOLUTION NO. 2269 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. 10. Transfers and Assignments; Effect of Agreement on Title. 10.1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, 18 C:'.Documents and Settings\Roben.Hargreaves\Mv Documents\PALM DESERT - University Development Plan Development Agreement v l .doc PLANNING COMMISSION RESOLUTION NO. 2269 transferee or assignee were Developer hereunder. 10.2 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. 11. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: 19 (':Documents and Settings.Robert.Hargreavcs`,My Documents\PAL\4 DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 If to City: City Clerk of the City of Palm Desert 73-510 Fred Waring, Drive Palm Desert, California 92260 If to Developer: 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. 12. Indemnification: Developer's Obligation. 12.1 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 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 20 C:'•Documents and Settings\Robert.11argrcavcs•.My Documents\PALM DESERT - University Development Plan Development Agreement v .doc PLANNING COMMISSION RESOLUTION NO. 2269 of Developer. 12.2 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 on, under which the Property, including, but not limited to soil and groundwater conditions, and Developer shall defend, at its expense, including attorneys fees, the Indemnified Parties in any action based or asserted upon any such alleged act or omission. 12.3 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. 12.4 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 specified in Sections 12.1, 12.2, or 12.3. Developer shall provide a defense to the Indemnified Parties, with counsel chosen by 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. 12.5 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 21 C:'Documents and Settings\Robert.Hargreaves' .My Documents\PALM DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 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. 12.6 Survival. The provisions of these Sections 12.1, 12.2, 12.3, and 12.4 shall survive the termination or expiration of this Agreement. 13. Miscellaneous. 13.1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this Agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 13.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Agreement or otherwise required by law for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This Section does not apply to development approvals by the City. 13.3 Not a Public Dedication. Except as otherwise expressly provided herein, 22 C:'.Documents and Settings `,Robert.Flargreaves\My Documents\PALM DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. 13.4 Severability. If any term, provision covenant or condition of this Agreement shall be deterrnined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 13.5 Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 13.6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 13.7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any 23 C.. Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - University Development Plan Development Agreement vl aloe PLANNING COMMISSION RESOLUTION NO. 2269 party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 13.8 Signature Pages. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 13.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 13.10 Prevailing Party's Attorney's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in such dispute, as the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court costs and reasonable attorneys' fees and expenses) incurred by the other party with respect to such to such dispute or in enforcing or establishing its rights hereunder. Notwithstanding the foregoing, City shall not be required to pay any costs or expenses (including without limitation, reasonable attorneys' fees and expenses) which Developer may incur in respect of any hearing held pursuant to Section 10 hereof. 24 C:',Documents and Settings\Robcrt.Hargreaves\Mv Documents'.PALM DESERT - University Development Plan Development Agreement v l.doc PLANNING COMMISSION RESOLUTION NO. 2269 [SIGNATURES ON FOLLOWING PAGES] 25 C:`•Documents and Settings\Robert.Hargreaves''hly Documents\PALvI DESERT - University Development Plan Development Agreement vl .doc PLANNING COMMISSION RESOLUTION NO. 2269 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above -written. DEVELOPER: By: President CITY: CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: , Mayor Attest: Rachelle Klassen, City Clerk 26 C:`•Documents and Settings,.Robert.Hargreaves''My Documents\PALM DESERT - University Development Plan Development Agreement vl.doc PLANNING COMMISSION RESOLUTION NO. 2269 STATE OF CALIFORNIA ) ss COUNTY OF ) On , 200 , 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 27 C:'•Documents and Settings\Robert.Hargreaves'_My Documents\PALM DESERT - University Development Plan Development Agreement vt.doc PLANNING COMMISSION RESOLUTION NO. 2269 TABLE OF CONTENTS PAGE RECITALS 1. Definitions. 4 1.1 Defined Terms 4 1.2 Agreement 4 1.3 Building Ordinances 4 1.4 City Council 4 1.5 Effective Date 4 1.6 Enacting Ordinance 4 1.7 Existing Land Use Ordinances 4 1.8 Land Use Ordinance 4 1.9 Mortgage 5 1.10 Project 5 1.11 Property 5 2. Term; Amendment 5 2.1 Term 5 2.2 Amendment 5 3. Supercede DA 97-2 6 4. General Development of the Project 6 4.1 Project 6 4.2 Project Timing; Construction Entitlement 7 4.3 Building Permits and Other Approvals and Permits 7 4.4 Procedures and Standards 8 4.5 Effect of Agreement 8 4.6 Operating Memoranda 9 5. Specific Criteria Applicable to Development of the Project 10 5.1 University Park Development Plan 10 5.2 Applicable Ordinances 10 5.3 Amendment to Applicable Ordinances 11 5.4 Modification or Suspension by State Law or Federal Law 11 5.5 Easements; Abandonments 12 6. Periodic Review of Compliance 12 7. Permitted Delays; Supersedure by Subsequent Laws 13 7.1 Permitted Delays 13 7.2 Supersedure of Subsequent Laws or Judicial Action 13 8. Events of Default; Remedies; Termination 14 8.1 Events of Default 14 8.2 Remedies 15 8.3 Waiver; Remedies Cumulative 15 8.4 Effect of Termination 15 8.5 Third Party Actions 16 CADocuments and Settings\Robert.liargreaves'Nly Documents\PALM DESERT - University Development Plan Development Agreement v .doc PLANNING COMMISSION RESOLUTION NO. 2269 9. Encumbrances on Property 16 9.1 Discretion to Encumber 16 9.2 Mortgage Protection 17 9.3 Mortgagee Not Obligated 17 9.4 Estoppel Certificates 17 10. Transfers and Assignments; Effect of Agreement on Title 18 10.1 Rights and Interests Appurtenant 18 10.2 Covenants Run with Land 19 11. Notices 19 12. Indemnification: Developer's Obligation 20 12.1 Developer's Wrong -Doing 20 12.2 Environmental Assurances 21 12.3 Challenges to Agreement 20 12.4 Defense by Counsel Chosen by City 21 12.5 Non -Liability of City Officers and Employees 21 12.6 Survival 21 13. Miscellaneous. 22 13.1 Relationship of Parties 22 13.2 Consents 22 13.3 Not a Public Dedication 22 13.4 Severability 23 13.5 Exhibits 23 13.6 Entire Agreement 23 13.7 Governing Law; Construction of Agreement •23 13.8 Signature Pages 24 13.9 Time 24 13.10 Prevailing Party's Attorney's Fees and Costs 24 C:\Documents and Settings\Robert.Hargreaves\Mv Documents\PALM DESERT - University Development Ilan Development Agreement v .doc PLANNING COMMISSION RESOLUTION NO. 2269 EXHIBIT A UNIVERSITY PARK DEVELOPMENT PLAN [to be attached prior to recording] (':'•Documents and Settings`.Robert.HargreavesNy Documents%PALM DESERT - University Development Plan Development Agreement vl.doe PLANNING COMMISSION RESOLUTION NO, 2269 EXHIBIT B LEGAL DESCRIPTION OF PROPERTY [to be attached prior to recording] C:\Documents and Settings'Robert.Hargreaves•My Documents'.PALM DESERT - University Development Plan Development Agreement vl.doc