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HomeMy WebLinkAboutOrd 1065 and 1066 Res 04-24 Sares Regis Group c/o Greg Albert C/Z 03-04, TT 31363, PP/CUP 03-06 & DA 03-02REQUEST: CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT Approval of a change of zone from PR-5 (planned residential, five units per acre) to PR-13 (planned residential, 13 units per acre), a precise plan/conditional use permit and tentative tract map for condominium purposes to construct 320 residential condominium units and a Negative Declaration of Environmental Impact as it relates thereto for a 25-acre site on the north side of Gerald Ford Drive 636 feet east of Monterey Avenue, 73-240 Gerald Ford Drive, APN 653-260-029. Project includes a height exception for tower elements 27 feet in height and a housing agreement (identified as DA 03-02) which will include, among other matters, provisions for affordable housing units. SUBMITTED BY: Phil Drell, Director of Community Development APPLICANT: Sares Regis Group c/o Greg Albert 18825 Bardeen Avenue Irvine, CA 92612 CASE NOS: C/Z 03-04, TT 31363, PP/CUP 03-06 and DA 03-02 DATE: May 13, 2004 continued from April 8, 2004 CONTENTS: Recommendation Discussion Draft Ordinance No. 1065 and Draft Resolution No. 04-24 Staff Report dated April 8, 2004 Recommendation: That the City Council waive further reading and pass Ordinance No. 1065 to second reading relating to C/Z 03-04. That the City Council adopt Resolution No. 04-24 approving TT 31363 and PP/CUP 03-06, subject to conditions including a condition requiring Staff Report Case Nos. C/Z 03-04, TT 31363, PP/CUP 03-06 and DA 03-02 Page 2 May 13, 2004 execution of a Housing Agreement which will include among other matters provisions for affordable housing units. That the City Council waive further reading and Pass Ordinance No. to second reading relating to Housing Agreement (DA 03-02). Discussion: BACKGROUND: This item was continued from the City Council meeting of April 8, 2004. At that time there was general consensus that the project would be an attractive, high density residential addition to the city. Council had concerns relating to: 1. The availability of transit service. 2. Landscape Committee input. 3. The appropriate level of "affordability" to be included in the project. 4. Whether the City should mandate housing tenure: rental or ownership. The items have been addressed as follows: 1. Transit Service: There is no service currently in this area. As part of the general plan update process, there were several meeting of City staff with Sunline staff (Leslie Grossjean). Bus service in the north sphere (University Park area) was discussed at length. Eventually Sunline will provide service in the area. This is an "if you build it they will come" situation. Staff reconfirmed with Sunline staff that once there are customers in the area they will be extending service along Gerald Ford Drive. As a condition of this approval the applicant will be required to design and construct a bus pull out area on Gerald Ford Drive. If there is bus service operating to the site before the completion of the project, then the applicant will also be required to install the bus shelter. Staff Report Case Nos. C/Z 03-04, TT 31363, PP/CUP 03-06 and DA 03-02 Page 3 May 13, 2004 2. Landscape Committee Review of Landscape Plans: The project landscape plans were reviewed through the usual architectural review process. They were reviewed by City landscape staff and given preliminary approval by ARC. Per City Council direction, the plans were referred to the Landscape Committee for review at its May 5, 2004 meeting. Unfortunately, City Council members were unable to attend and the meeting was canceled. If the meeting is rescheduled, staff will report on the results as part of our oral report on May 13, 2004. 3. Affordability Levels within Housing Agreement: Although the RDA/Western Center stipulation focuses on low and very low income housing, the State Housing Laws and the City's Housing Element requires cities to encourage the production of housing that is affordable for all economic segments of the community. These policies can include both development standards (density) and financial incentives. Historically, density incentives alone have never been capable of providing significant low income housing. Currently, newer single family tract home prices in Palm Desert range from $450,000 to $700,000. These homes require annual household incomes over $100,000 even with a large down payment. This income level is double the legal definition of moderate income. High density multifamily projects which provide housing for moderate income households earning $44,000/year addresses an affordable house need which is beyond the capability of lower density projects. Increasing housing density reduces per unit land and infrastructure costs and results in some construction economies of scale. The economic benefits grow proportionally with density. At 13 units per acre, the proposed project is at the bottom end of the high density range and at the high end of the design quality spectrum. The question that remains is: Can the project afford lower rents based on a realistic assessment of development costs, risks and investor expectations? Staff Report Case Nos. C/Z 03-04, TT 31363, PP/CUP 03-06 and DA 03-02 Page 4 May 13, 2004 The applicant has met with Housing Authority staff. The applicant's financial proforma was referred to the City's financial analyst, Leonard Wolk, for review to determine if the project can bear additional affordability requirements. The results of that analysis will be reported when available. The applicant is willing to provide lower income units if the City provides appropriate financial incentives. 4. For Sale or For Rent: The State Housing Law and the City's Housing Element requires the city to provide an appropriate mix of ownership and rental housing. While it might be every American's dream to become a homeowner, the nature of our service industry employment base dictates that a significant portion of our population will not have the income or employment history to qualify for home financing. Rental housing is their only alternative. The proposed project is being planned within a neighborhood that will likely be at least 60-70% ownership product. This ratio is consistent with the city's 2000 Census mix of rental and owner occupied housing. Ultimately, the market will determine the appropriate mix. Within any housing type, including single family homes, there is a mixture of owner and renter occupancy. The big difference with apartments and condominium projects is the presence of professional management. As a result we have not had significant code enforcement problems with multifamily projects, rental or condominium. The applicant had originally indicated that the project would be for rent for the first 10 years then converted to "for sale" condominiums. At the April 8, 2004 hearing the applicant clarified that it was their intention to make a decision as to whether it is "rental" or for "sale" based on market conditions. The housing agreement is structured to allow for either "for rent" or "for sale" without specifying a time frame. 5. HD Overlay Criteria: Staff evaluation of the projects based on a 10-point scale (10 being best) results in the following score: Staff Report Case Nos. C/Z 03-04, TT 31363, PP/CUP 03-06 and DA 03-02 Page 5 May 13, 2004 Submitted by: Phil Drell Director of Community Development 10 The percentage of residential units, whether single or multi -family, that shall be available for ownership. 10 High -density residential neighborhoods shall be located in proximity and have convenient access to public transportation. 10 High -density residential development shall be located in proximity to schools, parks and commercial services, which shall be accessible by means of non -motorized vehicle routes. 6 The percentage of proposed high -density units to be reserved to meet the affordable housing needs of the community. 8 Adequacy and usability of landscaped open space planned internal and integral to the design of high -density developments. 10 Development plans reflecting creative and innovative design in site planning, building design and landscape treatment, consistent with the General Plan Community Design Element. 10 Development proposals with high -density residential units shall include analyses of the potential fiscal impacts of the development. 64 A 64 score out of a possible 70 is 91 %. Approval: Approval: Carlos L. Orteg City Manager (W pdocsltmis r\pp03-06.cc6) Ho er Croy ACM for Dev ent Services ORDINANCE NO. 1065 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, -CALIFORNIA, AMENDING ORDINANCE NO._ 107, THE PALM DESERT ZONING MAP BY CHANGING THE ZONE FROM PR-5 TO PR-13 FOR 25 + / ACRES ON THE NORTH SIDE OF GERALD FORD DRIVE 636 FEET EAST OF MONTEREY AVENUE. CASE NO. C!Z 03-04 The City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, as follows: SECTION 1: That a portion of Ordinance No. 107 referencing Section 25.46.1 of the Zoning Ordinance, the Zoning Map (Chapter 35.46 of the Palm Desert Municipal Code) is hereby amended to read as shown on the attached Exhibit "A." SECTION 2: That a Negative Declaration of Environmental Impact is hereby certified and attached as Exhibit "B." SECTION 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. PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this day of , 2004, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT A SPIEGEL, Mayor ATTEST: RACHELLE D. KLASSEN, City Clerk City of Palm Desert, California (l � | ` Sl � '/- � � PA-5 ' ~~- Zoning Change CHANGE OF ZONE |� |b) ~~~~~~~ ORDINANCE NO. Date: RESOLUTION NO. 04-24 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, CERTIFYING A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT AS IT RELATES TO A PRECISE PLAN/CONDITIONAL USE PERMIT AND TENTATIVE TRACT MAP FOR CONDOMINIUM PURPOSES TO CONSTRUCT 320 RESIDENTIAL CONDO- MINIUM UNITS INCLUDING A HEIGHT EXCEPTION FOR TOWER ELEMENTS 30 FEET IN HEIGHT ON A 25-ACRE SITE ON THE NORTH SIDE OF GERALD FORD DRIVE 636 FEET EAST OF MONTEREY AVENUE, 73-240 GERALD FORD DRIVE, APN 653-260-029. CASE NOS. TT 31363 AND PP/CUP 03-06 WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th day of April, 2004, hold a duly noticed public hearing which was continued to May 13, 2004, to consider the request of SARES REGIS GROUP, LLC, 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. 02-06," 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 the EIR certified therefore; 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 the tentative tract map for condominium purposes and the precise plan/conditional use permit as described below: Tentative Tract Map 31363 for condominium purposes: The plan as designed complies with the municipal code requirements for residential condominium projects. Precise Plan/Conditional Use Permit: 1. The design of the project is consistent with the goals and objective of the Planned Residential zone and the amended Palm Desert General Plan as recommended for approval by the Planning Commission. RESOLUTION NO. 04-24 2. As conditioned, the project will be compatible with adjacent uses and will not depreciate property values in the vicinity. 3. The precise plan/conditional use permit will not endanger the public peace, health, safety or general welfare. NOW, THEREFORE, BE IT RESOLVED 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 the City Council does hereby approve PP/CUP 03-06 and TT 31363. 3. A Negative Declaration of Environmental Impact is hereby certified. 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 RESOLUTION NO. 04-24 CONDITIONS OF APPROVAL CASE NOS. TT 31363 AND PP/CUP 03-06 Department of Community Development: 1. The development of the property shall conform substantially with exhibits on file with the Department of Community Development, as modified by the following conditions. 2. Construction of a portion of said project shall commence within one year from the date of final approval unless an extension of time is granted; otherwise said approval shall become null, void and of no effect whatsoever. 3. The development of the property described herein shall be subject to the restrictions and limitations set forth herein which are in addition to all municipal ordinances and state and federal statutes now in force, or which hereafter may be in force. 4. Prior to issuance of a building permit for construction of any use contemplated by this approval, the applicant shall first obtain permits and/or clearance from the following agencies: Coachella Valley Water District Palm Desert Architectural Review Commission City Fire Marshal Public Works Department Evidence of said permit or clearance from the above agencies shall be presented to the department of building and safety at the time of issuance of a building permit for the use contemplated herewith. 5. Applicant shall participate in a commercial recycling program as determined by the City Environmental and Conservation Manager and applicable Waste Disposal Company. Access to trash/service areas shall be placed so as not to conflict with parking areas. Said placement shall be approved by applicable trash company and Department of Community Development. RESOLUTION NO. 04-24 6. All sidewalk plans shall be reviewed and approved by the department of public works prior to architectural review commission submittal. 7. Final landscape plans shall comply with the parking lot tree planting master plan and shall be approved by the Architecture Review Commission. 8. Applicant agrees to maintain the landscaping required to be installed pursuant to these conditions. Applicant will enter into an agreement to maintain said landscaping for the life of the project, which agreement shall be notarized and which agreement shall be recorded. It is the specific intent of the parties that this condition and agreement run with the land and bind successors and assigns. The final landscape plan shall include a long-term maintenance program specifying among other matters appropriate watering times, fertilization and pruning for various times of the year for the specific materials to be planted, as well as periodic replacement of materials. All to be consistent with the Property Maintenance Ordinance (Ordinance No. 801) and the approved landscape plan. 9. The project shall be subject to all applicable fees at time of issuance of permits including, but not limited to, Art in Public Places, TUMF, and school mitigation fees. 10. That the applicant and any successors shall maintain any and all enhanced paving areas in good order. 11. That the applicant shall provide a bus turn out on Gerald Ford Drive to satisfaction of the Director of Public Works. If bus service is available to the location prior to completion of the project, applicant shall be required to provide a bus shelter adjacent to the above noted bus turn out. Department of Public Works: 1. Any drainage facility construction required for this project shall be contingent upon a drainage study prepared by a registered civil engineer that is reviewed and approved by the Department of Public Works prior to start of construction. The project shall be designed to retain storm waters associated with the increase in developed vs. undeveloped condition for a 100 year storm. 4 RESOLUTION NO. 04-24 2. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55, shall be paid prior to issuance of any permits associated with this project. Installation of a signal at the intersection of Gerald Ford Drive and Gateway Drive shall be required of this project, the installation of which can be used as credit against these fees, at discretion of the City Council. 3. The project shall be subject to Transportation Uniform Mitigation Fees (TUMF). Payment of said fees shall be at the time of building permit issuance. 4. A complete preliminary soils investigation, conducted by a registered soils engineer, shall be submitted to, and approved by, the Department of Public Works prior to the issuance of a grading permit. All public and private improvements shall be inspected by the Department of Public Works and a standard inspection fee shall be paid prior to issuance of grading permits. 6. Any and all offsite improvements shall be preceded by the approval of plans and the issuance of valid encroachment permits by the Department of Public Works. 7 As required under Palm Desert Municipal Code Section 26.28, and in accordance with Sections 26.40 and 26.44, complete improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval before construction of any improvements is commenced. Offsite improvement plans to be approved by the Public Works Department and a surety posted to guarantee the installation of required offsite improvements prior to permit issuance. 8. Landscape installation on the property frontages as well as on -site shall be drought tolerant in nature and maintenance shall be provided by the property owner. 9. Applicant shall comply with the provisions of Municipal Code Section 24.12, Fugitive Dust Control and Section 24.20, Stormwater Management and Discharge Control. 10. In accordance with Palm Desert Municipal Code Section 26.44, complete grading plans/site improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval prior to issuance of any permits. Preliminary landscape plans shall be submitted for review concurrently with grading plans. 5 RESOLUTION NO. 04-24 11. Proposed building pad elevations are subject to review and modification in accordance with Chapter 27 of the Palm Desert Municipal Code. 12. Full public improvements, as required by Sections 26.40 and 26.44 of the Palm Desert Municipal Code, shall be installed in accordance with applicable City standards and the city's Circulation Network including the following: • Gateway Drive shall be constructed per the secondary street section of the circulation network to a half -street width of 36' on 54' right of way. • Gerald Ford Drive shall be widened to the arterial street section of the circulation network to a half -street width of 51' on 75' right of way plus a right turn lane at the project driveway. Construction of a bus facility with turnout if required by Sunline Transit Agency. Rights -of -way necessary for the installation of the above referenced improvements shall be dedicated to the city prior to the issuance of any permits associated with this project. 13. This project shall be limited to two driveways, one on each frontage, with right turn ingress and egress only on Gerald Ford Drive. Driveways and parking lots shall be inspected by the Public Works Department and a standard inspection fee paid prior to the issuance of a grading permit. 14. Street dedication of 54' half -width right of way shall be provided along the north project frontage for a future secondary roadway. 15. Any entry gates for the project shall be set back 100 feet minimum from the curb - line of the adjacent street. 16. A traffic study shall be prepared for this project. 17. In -lieu park fees shall be collected in a similar fashion to a subdivision according to a negotiated development agreement. Riverside County Fire Department: 1 . With respect to the conditions of approval regarding the above referenced plan check, Fire Department recommends the following fire protection measures be 6 RESOLUTION NO. 04-24 provided in accordance with City Municipal Code, NFPA, CFC and CBC or recognized fire protection standards. The Fire Department is required to set a minimum fire flow for the remodel or construction of all buildings per UFC article 87. 2. A fire flow of 1500 gpm for a 1 hour duration at 20 psi residual operating pressure must be available before any combustible materials are placed on the job site. 3. Provide or show there exists a water system capable of providing a potential gallon per minute flow of 2500 gpm for commercial buildings. 4. The required fire flow shall be available from a wet barrel Super Hydrant(s) 4"x2-1 /2"x2-1 /2", located not Tess than 25' nor more than 165' from any portion of a multifamily dwelling measured via vehicular travelway. 5. Water plans must be approved by the Fire Marshal and include verification that the water system will produce the required fire flow. 6. Install a complete NFPA 13R modified fire sprinkler system with attic protection. This applies to all buildings with a 3,000 square foot total cumulative floor area. The Fire Marshal shall approve the locations of all post indicator valves and fire department connections. All valves and connections shall not be Iess than 25' from the building and within 50' of an approved hydrant. Exempted are one and two family dwellings. 7. All valves controlling the water supply for automatic sprinkler systems and water -flow switches shall be monitored and alarmed per UBC Chapter 9. 8. Install a fire alarm system as required by the UBC Chapter 3. 9. Install portable fire extinguishers per NFPA 10, but not Iess than one 2A10BC extinguisher per 3000 square feet and not over 75' walking distance. A "K" type fire extinguisher is required in all commercial kitchens. 10. If applicable, install a Hood/Duct automatic fire extinguishing system per NFPA 96 in all public and private cooking operations except single-family residential usage. RESOLUTION NO. 04-24 11 All buildings shall be accessible by an all-weather roadway extending to within 150' of all portions of the exterior walls of the first story. The roadway shall be not Tess than 24' of unobstructed width and 13'6 of vertical clearance. Where parallel parking is required on both sides of the street the roadway must be 36' wide and 32' wide with parking on one side. Dead-end roads in excess of 150' shall be provided with a minimum 45' radius turn -around 55' in industrial developments. 12. Whenever access into private property is controlled through use of gates, barriers or other means provisions shall be made to install a "Knox Box" key over -ride system to allow for emergency vehicle access. Minimum gate width shall be 16" with a minimum vertical clearance of 13'6". 13. A dead end single access over 500' will require a secondary access, sprinklers or other mitigative measures approved by the Fire Marshal. Under no circumstance shall a dead end over 1300' be accepted. 14. A second access is required. This can be accomplished by two main access points from a main roadway or an emergency gate from an adjoining development. 15. All buildings shall have illuminated addresses of a size approved by the City. 16. All fire sprinkler systems, fixed fire suppression systems and alarm plans must be submitted separately to the Fire Marshal for approval prior to construction. 17. Conditions subject to change with adoption of new codes, ordinances, laws, or when building permits are not obtained within 12 months. 8 RESOLUTION NO. 04-24 EXHIBIT A Pursuant to Title 14, Division 6, Article 6 (commencing with section 15070) of the California Code of Regulations. NEGATIVE DECLARATION CASE NOS: TT 31363 and PP/CUP 03-06 APPLICANT/PROJECT SPONSOR: PROJECT DESCRIPTION/LOCATION: Sares Regis Group c/o Greg Albert 18825 Bardeen Avenue Irvine, CA 92612 A precise plan/conditional use permit and tentative tract map for condominium purposes to construct 320 residential condominium units on a 25-acre site on the north side of Gerald Ford Drive 636 feet east of Monterey Avenue, 73-240 Gerald Ford Drive, APN 653-260-029. Project includes a height exception for tower elements 30 feet in height and a housing agreement which will include, among other matters, provisions for affordable housing units. 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 9 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING AN AGREEMENT RELATING TO THE DEVELOPMENT AND ONGOING OPERATION OF A 320-UNIT APARTMENT/ CONDOMINIUM PROJECT ON THE NORTH SIDE OF GERALD FORD DRIVE BETWEEN MONTEREY AVENUE AND PORTOLA AVENUE, 73-240 GERALD FORD DRIVE CASE NO. DA 03-02 AS IT RELATES TO CASE NOS. CIZ 03- 04, TT 31363 AND PP/CUP 03-06 WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th day of April, 2004, hold a duly noticed public hearing which was continued to May 13, 2004 to consider the request by SARES REGIS GROUP, LLC, for approval of DA 03-02; and WHEREAS, the Planning Commission by its Resolution No. 2240 has recommended approval of said agreement; 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. 02-06," 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 the EIR certified therefore; and WHEREAS, at said public hearing, said City Council heard and considered all testimony and arguments of all interested persons. 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 Agreement 03-02 (Exhibit A attached) is hereby approved. 3. That a Negative Declaration of Environmental Impact is hereby certified. (Exhibit B attached). 4. 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 in the city of Palm Desert, California, and shall be in full force and effect thirty (30) days after its adoption. ORDINANCE NO. 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 ROBERT A. SPIEGEL, Mayor 2 EXHIBIT A HOUSING AGREEMENT THIS AGREEMENT is entered into this , day of , 2003, between , (hereinafter "Property Owner") and the City of Palm Desert, (hereinafter "City"), a municipal corporation organized and existing under the laws of the state of California. RECITALS: This Agreement is predicated upon the following facts: A. Property Owner is owner of certain real property located within the City of Palm Desert, California, which property is described in Exhibit A attached hereto and made a part hereof (hereinafter "PROPERTY"). City has granted approval of a general plan amendment (through a general plan update) from low density residential (3-5 dwelling units per acre) to high density residential (10-22 units per acre), a change of zone from PR-5 (planned residential, five units per acre) to PR-13 (planned residential, 13 units per acre), a precise plan/conditional use permit, including a height exception to allow a 27-foot high roof element, and tentative tract map for apartment/ condominium purposes to construct 320 residential apartment/ condominium units; B. City has amended the general plan and granted a change of zone to increase the permitted maximum density from five dwelling units per acre to a maximum of 13 dwelling units per acre in return for providing dwelling units affordable to moderate income occupants; C. As a condition of said approval, City has required that a specified number of units associated with the project be set aside for moderate income occupants subject to restrictions necessary to insure the continued occupancy of said units by moderate income households; D. The City Council of City has found that this Agreement is consistent with the General Plan; and 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 to be constructed in the City pursuant to Precise Plan / Conditional Use Permit 03-06. 684285.02/0C S7335-304/12-12-0312 10 03/res/jed EXHIBIT A -1- (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 (2). (e) "Useful Life of the Project" is fifty five (55)[required by state law] years. 2. Description of Real Property. The real property which is the subject of this Agreement is described in Exhibit A. 3. Interest of Property Owner. Property Owner represents that he has a full legal and equitable interest in the Real Property and that all other persons holding legal or equitable interests in the Property are to be bound by the Agreement. 4. Assignment. The rights of the Property Owner under this Agreement may not be transferred or assigned by the Property Owner prior to the completion of the construction of the Project unless the written consent of the City is first obtained, which consent shall not be unreasonably withheld. Upon the completion of the Project as evidenced by the issuance of a certificate of occupancy therefore, the written consent of the City shall no longer be required to transfer the rights of the Property Owner under this Agreement to any successor in interest in the Real Property. Upon the assignment of this Agreement by the Property Owner to a successor in interest in the Real Property, the City agrees that it will look solely to such successor in interest to thereafter perform all of the covenants, terms and conditions of this Agreement and the assigning Property Owner shall be released from liability accruing under this Agreement from and after the effective date of such assignment. Notwithstanding the foregoing, the Property Owner and its assignees shall have the right to collaterally assign this Agreement without the City's consent to Property Owner's lender in connection with the financing of this Project. 5. Binding effect of Agreement. The burdens and the benefits of the Agreement shall constitute covenants that shall run with the Real Property and shall be binding upon and inure to the benefit of the successors in interest to the Real Property. 6. Relationship of parties. It is understood that the contractual relationship between the City and Property Owner is such that the Property Owner is an independent contractor and not the agent of the City. 7. Agreement by Property Owner and City. (a) City has amended the general plan and granted a change of zone increasing the permitted maximum density on the property from five units per acre to 13 units per acre. Based on these amendments, the City has approved the Precise Plan / Conditional Use Permit 03-06 for a 320-unit apartment / condominium project, including a height exception to allow a 27-foot high roof element on the Property. In exchange for increasing the permitted density from five units per acre to 13 units per acre, the Property Owner agrees to set aside 20% of total project units as units affordable to moderate income households. The project is receiving a density bonus of eight (8) units/acre or 195 684285.02/0C S7335-304/12 12 0312 10 03/res/jed EXHIBIT A -2- of the 320 total project units. The project's affordable housing requirement shall therefore be established at 64 units. (b) The Property Owner shall choose one of the following methods to meet the affordable housing requirement: (i) Payment of $15,000 per affordable unit totaling $960,000 to the City to be used for the purpose of providing very low, low and moderate income housing in the city. Payment shall be made in increments to the City prior to obtaining a building permit(s) for the project at the rate of $3,000.00 per each of the 320 units. (ii) Set aside sixty-four (64) affordable units in the PROJECT which shall be occupied by income qualified persons who meet the current "moderate income"limits as determined by the Palm Desert Housing Authority pursuant to state law (i.e., 120% of median income for Riverside County), as may be adjusted from time to time. The sixty-four (64) affordable units shall be further designated as follows: TOTAL AFFORDABLE UNITS One (1) Bedroom Units 19 Two (2) Bedroom Units 39 Three (3) Bedroom Units 6 64 Maximum rental rates for the affordable units shall be set by the Palm Desert Housing Authority pursuant to state law at the time the units first become available for rent as determined as illustrated by the schedule of the maximum income limits currently used to qualify tenants for an Affordable Unit as set forth in Exhibit B "Current Maximum Qualifying Income and Maximum Monthly Housing Allowance". Annual rent increases shall not exceed the increases permitted by state law. (iii) Set aside sixty-four (64) affordable units in the Project which shall be sold to income qualified persons who meet the current "moderate income" limits as determined by the Palm Desert Housing Authority pursuant to state law (i.e., 120% of median income for Riverside County. The sixty-four (64) affordable units shall be designated as follows: TOTAL AFFORDABLE UNITS One (1) Bedroom Units 19 Two (2) Bedroom Units 39 Three (3) Bedroom Units 6 64 684285.02/OC S7335-304/12 12 0312 10 03/res/jed EXHIBIT A -3- Sales prices in the "affordable units" shall be an amount such that the units will qualify as affordable to moderate income persons pursuant to state law. (c) The project as proposed allows the Property Owner to operate it as a rental (apartment) complex or to sell it as condominium units. The Developer has indicated to the City that the project may be operated as an apartment complex for a number of years and then converted to condominiums. Should the Property Owner not avail himself of item (i) above to meet the affordable housing requirement, then the project shall comply with the provisions of item (ii) for the period of time it is operated as a rental complex. At the time of its conversion from rental to condominium, item (iii) above shall become applicable. Subsequent sales of any "affordable units" shall be subject to resale controls substantially in the form of the deed restrictions attached hereto as Exhibit " ", which will assure that said units may only be sold or rented to income qualified persons provided for in this section. (d) Property Owner or its assigned management agent shall be responsible for determining the eligibility of prospective tenants in the "affordable" units, (e) Property Owner shall advise the City in writing prior to obtaining building permit regarding the method to be used to satisfy affordable housing requirement of the project. (f) Property Owner shall not discriminate on the basis of race, color or creed, sex, or national origin. (g) Change in Project. Property Owner hereby agrees that prior to the initial completion of the Project as evidenced by the issuance of a certificate of occupancy, 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/conditional use permit prior to the initial completion of the Project is not effective until the parties amend this AGREEMENT to incorporate it. (h) Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of the Property Owner or those of his contractor, subcontractor, agent, employee or other person acting on his behalf which relates to the PROJECT. Property Owner agrees to and shall defend the City and its officers, agents, employees and representatives from third party actions for damages caused or alleged to have been caused by reason of Property Owner's activities in connection with the PROJECT. 684285.02/OC S7335-304/12-12-0312 10 03/res/jed EXHIBIT A -4- This hold harmless agreement applies to all third party damages and claims for damages suffered [or alleged to have been suffered]by reason of the operation referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications or both for the PROJECT. Property Owner further agrees to indemnify, hold harmless, pay all costs and provide a defense for City in any action challenging the validity of the AGREEMENT. (i) Periodic Review of Compliance with Agreement. (i) Planning Commission shall review this AGREEMENT whenever substantial evidence exists to indicate a possible breach of the terms of this AGREEMENT. (j) Amendment or Cancellation of Agreement. This AGREEMENT may be amended or canceled in whole or in part by mutual consent of the parties. (k) Enforcement. Unless amended or canceled as provided in paragraph (j), this AGREEMENT is enforceable by any party to it notwithstanding a change in the applicable general or specific plan, zoning, subdivision, or building regulations adopted by City which alter or amend the rules, regulations or policies governing permitted uses of the land, density, design, improvement and construction standards and specifications. (1) Events of Default. Property Owner is in default under this AGREEMENT upon the happening of one or more of the following events or conditions: (i) If a warranty, representation or statement set forth in this Agreement by Property Owner to City is false or proves to have been false in any material respect when it was made; (ii) A finding and determination by, that upon the basis of substantial evidence Property Owner has not complied in good faith with any of the terms or conditions of this AGREEMENT. (iii) Property Owner's failure to maintain the Real Property in substantially the same condition as it exists on the date that City issues the Certificate of Occupancy with respect to the PROJECT ordinary wear and tear and casualty excepted. (iv) Property Owner's failure to appear in and defend any action or proceeding purporting to affect the rights or powers of City under the terms of this AGREEMENT, and to pay all costs and expenses, including attorneys' fees in a reasonable sum, in any such action or proceeding in which City may appear. (m) 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 684285.02/0C S7335-304/12-12-0312 10 03/res/jed EXHIBIT A -5- successor in interest in writing 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, provided, that, if such remedial action cannot reasonably be completed within such thirty (30) day period, Property Owner shall have such additional time as is reasonably necessary to complete such remedial actions so long as Property Owner is diligently pursuing the same. If Property Owner fails to take remedial action within the cure periods described above, the Planning Commission of City shall recommend to the City Council of City that this AGREEMENT be 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 terminate this AGREEMENT, or may employ one or more of the remedies set forth in this paragraph. Proceedings before the Planning Commission and 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 pursue all legal or equitable remedies City may have under California law or as set forth in this AGREEMENT and City shall be entitled to specific performance and enforcement of each and every term, condition and covenant set forth herein. (n) Damages upon Cancellation, Termination of Agreement. In no event shall Property Owner be entitled to any damages against the City upon termination of this AGREEMENT or exercise by City of its rights under this AGREEMENT. (o) Attorney's Fees and Costs. If legal action by either party is brought because of breach of this AGREEMENT or to enforce a provision of this AGREEMENT, the prevailing party is entitled to reasonable attorneys' fees and court costs. (p) Notices. All notices required or provided for under this AGREEMENT shall be in writing and delivered in person or sent by certified mail, postage prepared. Notice required to be given to City shall be addressed as follows: City of Palm Desert, 73-510 Fred Waring Drive, Palm Desert, California 92260. Notices required to be given to Property Owner shall be addressed as follows: Sares Regis Group, c/o Greg Albert, 18825 Bardeen Avenue, Irvine, California 92612. 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. (q) Rules of Construction and Miscellaneous Items. (i) The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. (ii) If a part of this AGREEMENT is held to be invalid, the remainder of this AGREEMENT is not affected. (iii) If there is more than one signer of this AGREEMENT their obligations are joint and several. 684285.02/OC S7335-304/12 12 0312 10 03/res/jed EXHIBIT A -6- I c9-4 (iv) The time limits set forth in this AGREEMENT may be extended by mutual consent of the parties in accordance with the procedures for adoption of an agreement. (r) Duration of Agreement. This AGREEMENT shall remain in effect during the Useful Life of the Project. (s) Applicable Law. This AGREEMENT shall be construed according to the laws of the State of California. (t) Severability. If any portion of this AGREEMENT is for any reason held to be unenforceable, such determination shall not affect the validity of the remaining portions. (u) Authority. Each of the parties hereto covenants and agrees that it has the legal capacity to enter into this AGREEMENT contained herein, that each AGREEMENT is binding upon that party and that this AGREEMENT is executed by a duly authorized official acting in his official capacity. IN WITNESS WHEREOF this 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 City Attorney By: Attest: SARES REGIS GROUP By: By: 684285.02/OC S7335-304/12 12 0312 10 03/res/jed EXHIBIT A -7- STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) On this day of in and for said State, personally appeared , 2004, before me, a Notary Public known to me or proved to me on the basis of satisfactory evidence to be instrument on behalf of executed the same. the person who executed the within and acknowledged to me that 684285.02/OC S7335-304/12 12 0312 10 03/res/jed EXHIBIT A _8- EXHIBIT B CURRENT MAXIMUM QUALIFYING INCOME AND MAXIMUM MONTHLY HOUSING ALLOWANCE Moderate -income households earning 120% of the area median income (according to HUD income figures for the County of Riverside effective March, 2003) Household Size Annual Income @ 120% of AMI Maximum Monthly Housing Allowance 1 $ 42,840.00 $ 1,071.00 2 $ 48,960.00 $ 1,224.00 3 $ 55,080.00 $ 1,377.00 4 $ 61,200.00 $ 1,530.00 5 $ 66,120.00 $ 1,653.00 6 $ 70,980.00 $ 1,774.50 1. This agreement is based on the divisor of 30% in determining the Maximum Monthly Housing Allowance (AMI*30%/12=Maximum Monthly Housing Allowance). 2. This Agreement is based on the Utility Allowance worksheet as issued by the County of Riverside for the East County locality and includes allowances for electric lighting & refrigeration, and air conditioning; gas cooking, domestic hot water, and space heating; domestic water usage; sewer usage; trash collection. 3. This Agreement is based on a 1 bedroom apartment being rented to tenant(s) with a household size of 1 and 2. 4. This Agreement is based on a 2 bedroom apartment being rented to tenants with a household size of 3, and 4. 5. This Agreement is based on a 3 bedroom apartment being rented to tenants with a household size of 5, and 6. 684285.02/OC S7335-304/12-12-0312 10 03/res/jed EXHIBIT A -9- RESOLUTION NO. 04-25 EXHIBIT B Pursuant to Title 14, Division 6, Article 6 (commencing with section 15070) of the California Code of Regulations. NEGATIVE DECLARATION CASE NO: DA 03-02 as it relates to Case Nos. C/Z 03-04, TT 31363 and PP/CUP 03-06 APPLICANT/PROJECT SPONSOR: Sares Regis Group c/o Greg Albert 18825 Bardeen Avenue Irvine, CA 92612 PROJECT DESCRIPTION/LOCATION: An agreement relating to the development and ongoing operation of a 320-unit apartment/condominium project on the north side of Gerald Ford Drive between Monterey Avenue and Portola Avenue, 73-240 Gerald Ford Drive. 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 2 RESOLUTION NO. EXHIBIT B Pursuant to Title 14, Division 6, Article 6 (commencing with section 15070) of the California Code of Regulations. NEGATIVE DECLARATION CASE NO: DA 03-02 as it relates to Case Nos. C/Z 03-04, TT 31363 and PP/CUP 03-06 APPLICANT/PROJECT SPONSOR: Sares Regis Group c/o Greg Albert 18825 Bardeen Avenue Irvine, CA 92612 PROJECT DESCRIPTION/LOCATION: An agreement relating to the development and ongoing operation of a 320-unit apartment/condominium project on the north side of Gerald Ford Drive between Monterey Avenue and Portola Avenue, 73-240 Gerald Ford Drive. 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