HomeMy WebLinkAboutOrd 1141 and Res 07-61 DA 07-01 & PP/CUP 07-06 Bernard Invstmnt Grp/K.Bernard ���.� CITY OF PALM DESERT
� � DEPARTMENT OF COMM
STAFF R P�NG DATE �' � ^� /
NJ C0�lTiNUED TO � ^ �`, - � `
❑ P�SSE�T�J 2ND READI�IG
REQUEST: Approval of a precise plan/condition
agreement to construct a 12-unit senior citizen apartment project
located at 73-811 Santa Rosa Way.
Approval of the housing agreement substantially as to form and
authorize the City Manager to finalize the agreement and the Mayor
to do the same.
SUBMITTED BY: Tony Bagato,
Principal Planner
APPLICANT: Bernard Investment Group/ Ken Bernard
3991 Mac Arthur Blvd, Suite 350
Newport Beach, CA 92660
CASE NOS: DA 07-01 AND PP/CUP 07-06
DATE: August 9, 2007
CONTENTS: Recommendation
Draft Ordinance No. ��4� , Exhibit A Development Agreement
Draft Resolution No. 0�-61
Housing Agreement
Planning Commission Staff Report, dated July 17, 2007
Plans and Exhibits
RECOMMENDATION:
That the City Council pass Ordinance No. 1�4i to second reading approving
Development Agreement 07-01.
That the City Council adopt Resolution No. 0�61 approving Precise Plan /
Conditional Use Permit 07-06, subject to conditions attached. 0
That the City Council approve the housing agreement substantially as to form and
authorize the City Manager to finalize the agreement and the Mayor to do the
same.
Staff Report
Case Nos. DA 07-01, PP/CUP 07-06
Page 2
August 9, 2007
I. EXECUTIVE SUMMARY:
Approval of staff's recommendation will allow the applicant to utilize the Senior
Housing Overlay provisions to construct 12 studio apartments on a vacant parcel
on the south side of Santa Rosa Way. Two of the units will be restricted to rental
by seniors with low or moderate income.
On July 17, 2007, the Planning Commission recommended approval (5-0 vote)
of the project and development agreement. During the public hearing, nobody
spoke in favor of or opposition to the project.
II. BACKGROUND:
A. PROPERTY DESCRIPTION:
The vacant property totaling 22,336 square feet is located on the south
side of Santa Rosa Way approximately 262 feet east of San Pascual. The
parcel is a flag shaped lot, which has 58.5 feet of frontage on Santa Rosa
Way (north property line) and widens to 111 feet at the south end. The
property is zoned R-2, S.O. (Senior Overlay) and is designated High
Density 7-18 units per acre in the City's General Plan.
B. ADJACENT ZONING AND LAND USE:
North: R-3, S.O. / apartments
South: R-2, S.O. / parking for a retirement facility
East: R-2, S.O. / apartments
West: R-2, S.O. / single-family residence
C. SENIOR HOUSING OVERLAY DISTRICT:
The Senior Overlay District (Municipal Code Section 25.52, attachment),
allows a density bonus for the number of units based on a people per acre
basis. This property totaling 22,260 square feet (.511 acres) is permitted
up to 15.33 people. The number of units is then determined by the unit
sizes proposed. For example, the code allows 1.25 people per studio unit,
which equates to a maximum of 12 studio units. In addition to density, the
Senior Overlay District allows parking reductions based on age. The
parking requirement is 1.25 spaces for projects restricted to residents over
55 years old and 1 space per unit for project restricted to residents over
62 years old.
To grant the density bonus and parking reduction, a portion of the project
must be reserved and made affordable to low and moderate-income
Staff Report
Case Nos. DA 07-01, PP/CUP 07-06
Page 3
August 9, 2007
residents. For projects between ten and ninety-nine units, ten percent of
the units shall be affordabie by lower-income residents ar�d ten percent by
moderate-income residents.
D. PP/CUP 01-23 AND DA 02-01:
On March 14, 2002, the City Council approved a precise plan/conditional
use and development agreement for a 12-unit senior citizen apartment
located at this property. On April 17, 2003, the Planning Commission
granted a one-year time extension of the project. No other time extensions
were filed and the project entitlement expired after April of 2004.
In 2006, the property was sold to the current applicant. In April, the Mr.
Bernard met with City staff to discuss his development options. After
several discussions, Mr. Bernard purchased the design rights to the
previous approval with the intent of constructing the 12 senior units. Staff
determined that the previous project would have to be approved as a new
project, since the previous property owner did not execute the
development agreement and did not file any other time extensions beyond
2004.
The current application is very similar to the project that was approved in
2002, except of minor site plan changes and a revised development
agreement that is consistent with current housing law standards and the
Redevelopment Agency.
II. PROJECT DESCRIPTION:
The applicant is requesting approval of a 12-unit senior complex with 16 parking
spaces and outdoor amenities. The project includes a draft development
agreement that will be executed by the applicant to comply with the affordability
requirement of the Senior Housing Overlay District.
A. SITE PLAN:
The site plan is designed with one (1) driveway located on Santa Rosa
Way. The driveway leads to 12 covered parking spaces on the northeast
property line and 4-visitor parking spaces parallel to the driveway on the
northwest property line. The 12-units are located on the south end of the
property. The project is designed with two (2) buildings totaling 6 units each.
The six (6) units are located on either side of a common landscape area,
water feature and a covered patio area with a BBQ stand. All of the units
will face the common area of the project. A 6-foot high block wall and metal
steel gate will be installed 25 feet from the curb on Santa Rosa Way.
Staff Report
Case Nos. DA 07-01, PP/CUP 07-06
Page 4
August 9, 2007
B. UNIT DESCRIPTION:
Each of the units is studio size, with 625 square feet. Each floor plan
includes a great room, kitchen, bathroom and a walk-in closet. The second
floor units are designed with entry patios that lead to a stairway at each end
of the two (2) buildings.
C. ARCHITECTURE:
The buildings are two-stories, 24 feet tall. The design includes tile roof,
recessed windows, vertical columns, and earthtone stucco colors. On
February 12, 2002, the Architectural Review Commission granted
preliminary approval of the proposed building design. The construction
drawings will be presented to the Architectural Review Commission for a
final approval to make sure they are consistent with the preliminary
approval.
III. ANALYSIS:
The following table compares the development standards of the zone with the
proposed project.
STANDARD R2, SO REQUIREMENTS PROJECT
Number of Units 12 Studio 12 studio
Min Unit Size 450 square feet 625 square feet
Building Coverage 50% 20%
Building Height 24 feet 24 feet
Open Space 300 square feet/du 800 feet/du
Front Yard Setback 15 feet 155 feet
Rear Yard Setback 20 feet 21 feet
Side Yard Setbacks 14 feet combined / min of 5 feet 7 feet and 7 feet
Parking 12 16
The proposed project complies with all the development standards of the zone
and complies with all the development standards of the Senior Housing Overlay
zone. The Planning Commission and City Council previously approved this
design in 2002. The new development agreement is consistent with current
housing laws and the guidelines of the Redevelopment Agency.
Staff Report
Case Nos. DA 07-01, PP/CUP 07-06
Page 5
August 9, 2007
FINDINGS FOR APPROVAL OF A PRECISE PLAN / CONDITIONAL USE
PERMIT:
A. The proposed location of the precise plan / conditional use is in accord
with the objectives of the Zoning Ordinance and the purpose of the
district in which the site is located.
Response:
The property has been zoned Senior Overlay (S.O.) for many years.
The project complies with all provisions of the base zone (R-2) and the
provisions of the Senior Overlay. The project is in accord with the
objectives of the Zoning Ordinance.
B. The proposed location of the precise plan / conditional use and the
conditions under which it will be operated and maintained will not be
detrimental to the public health, safety or general welfare, or be
materially injurious to properties or improvements in the vicinity.
Response:
The project will be a new development in an older area of the
community and as such may lead to other properties upgrading. The
project will not be detrimental to the public health, safety or general
welfare, or be materially injurious to properties or improvements in the
vicinity.
C. The proposed precise plan / conditional use will comply with each of
the applicable provisions of this title, except for approved variances or
adjustments.
Response:
The property is located in the Senior Housing Overlay District (S.O.)
and the project complies with all provisions of the base zone IR-2) and
the provisions of the Senior Overlay. The project is in accord with the
objectives of the Zoning Ordinance.
D. The proposed precise plan / conditional use complies with the goals,
objectives, and policies of the city's adopted General Plan.
Staff Report
Case Nos. DA 07-01, PP/CUP 07-06
Page 6
August 9, 2007
Response:
The project is consistent with the adopted General Plan.
IV. ENVIRONMENTAL REVIEW:
The project is a Class 32 Categorical Exemption for the purposed of CEQA and
no further review is necessary.
Submitted By: Department Head:
� -�
Tony Bagato Lauri Aylaian
Principal Planner Director of Community Development
Approval:
�
�� ;
�`
�1 Homer L. Croy
U ACM for Development Services
Carlos L. Ortega
City Manager
ORDINANCE NO. 1�4�
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF PALM DESERT, AND
BERNARD INVESTMENT GROUP, ATTACHED AS EXHIBIT A.
CASE NO. DA 07-01
WHEREAS, the Planning Commission by its Resolution No. 2449 has recommended
approval of Case No. DA 07-01; and
WHEREAS, at said public hearings, said City Council heard and considered all
testimony and arguments of all interested persons.
WHEREAS, said application has complied with requirements of the "City of Palm
Desert Procedures to Implement the California Environmental Quality Act, Resolution
No. 06-78," in that the Director of Community Development has determined the project
was assessed as part of Case Nos. PP/CUP 07-06 for which the project is a Class 32
Categorical Exemption and no further review is necessary; and
WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY
ORDAIN, AS FOLLOWS:
SECTION 1: That the Development Agreement 07-01 by Ordinance No. is
hereby approved.
SECTION 2: The City Clerk of the City of Palm Desert, California, shall certify to the
passage adoption of this Ordinance and shall cause the same to be published once in the
Desert Sun, a newspaper of general circulation, circulated within the City of Palm Desert, and
the same 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 9`h day of August 2007, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHARD KELLY, Mayor
ATTEST:
RACHELLE KLASSEN, City Clerk
City of Palm Desert, California
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ORDINANCE NO. 114�
EXHIBIT A
RECORDING REQUESTED BY, AND EXEMPT FROM FILING FEE
WHEN RECORDED, MAIL TO: PURSUANT TO GOVT. CODE §6103
City Clerk's Office
City of Paim Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
---------------------------------------------------------------------------------------------------------------------
(Space above for Recorder's use Only)
DEVELOPMENT AGREEMENT
Between
THE CITY OF PALM DESERT, CALIFORNIA
and
BERNARD INVESTMENT GROUP, INC.
a California Corporation
Dated: , 2007
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ORDINANCE NO. 1�41
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered
into as of this day of , 2007, by and between the City of Palm Desert,
California, a municipal corporation organized and existing under the laws of the State of
California (the "City"), and Bernard Investment Group, Inc., a California Corporation
("Developer"), with reference to the following facts, understandings and intentions of the
parties:
RECITALS
A. These Recitals refer to and utilize certain capitalized terms, which are
defined in this Agreement. The parties intend to refer to those definitions in conjunction
with the use thereof in these Recitals.
B. Government Code Sections 65684 through 65869.5 inclusive (the
"Development Agreement Legislation") authorize the City to enter into development
agreements in connection with the development of real property within its jurisdiction.
On August 11, 1983, the City enacted by Ordinance No. 341, as amended on
December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement
Ordinance"), procedures and requirements for the consideration of development
agreements thereunder pursuant to the Development Agreement Legislation.
C. Developer owns or is purchasing certain property in the City of Palm
Desert California (the "Property"), which Property is more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference.
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ORDINANCE NO. 1141
D. Developer intends to use the Property to develop a Project consisting of
low and moderate-income units for residential development and associated amenities
and public improvements.
E. The City has determined that the development of the Project as
contemplated by this Agreement is consistent with and in furtherance of the
development goals, policies, general land uses and development programs of the City
and is consistent with the existing Senior Housing Overlay District.
F. The Developer has applied for precise plan approval pursuant to Chapter
25.52 of the Zoning Ordinance, senior Housing Overlay District which allow for
significant density increases in return for building specialized housing designed and
restricted to residents over age 62 years;
G. Pursuant to City Codes and as a condition of said approval, City has
required that a specified number of units associated with the project be set aside for
lower and moderate income occupants subject to restrictions necessary to insure the
continued occupancy of said units by lower income and moderate senior citizen
households;
H. Developer has been conditionally granted permission by the City to
construct conventional senior housing rental units on the Project by Precise Plan /
Conditional Use Permit No. . Pursuant to a separate agreement, Developer is
required to set aside affordable units for low and moderate income occupants for the
required period of time also set forth in the separate Affordable Housing Agreement.
Said Housing Agreement is an integral part and condition of this Agreement.
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ORDINANCE NO. 1141
I. By adopting this Agreement, the City Council has elected to exercise
certain governmental powers at the present time rather than deferring such actions until
an undetermined future date and has done so intending to bind the City and the City
Council and intending to limit the City's future exercise of certain governmental powers,
to the extent permitted by law.
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Legislation, and in consideration of the mutual covenants and promises of
the parties herein contained, the parties agree as follows:
1. Definitions.
1.1 Defined Terms. Each reference in this Agreement to any of the
following terms shall have the meaning set forth below for each such term.
1.2 Aqreement. This Development Agreement.
1.3 Buildinq Ordinances. Those building standards, of general and
uniform application throughout the City and not imposed solely with respect to the
Property, in effect from time to time that govern building and construction standards
within the City, including, without limitation, the City's building, plumbing, electrical,
mechanical, grading, sign, and fire codes.
1.4 Citv Council. The legislative body of the City of Palm Desert.
1.5 Effective Date. The date on which the Enacting Ordinance
becomes effective.
1.6 Enactinq Ordinance. O�dinance , enacted by the City
Council on , 2007, approving this Agreement.
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ORDINANCE NO. 1141
1.7 Existinq Land Use Ordinances. The Land Use Ordinances in
effect as of the Effective Date.
1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules,
regulations and official policies of the City, governing the development of the Property,
including but not limited to, the permitted uses of land, the density and intensity of use
of land, and the timing of development, all as applicable to the development of the
Property. Specifically, but without limiting the generality of the foregoing, Land Use
Ordinances shall include the City's General Plan, the City's zoning ordinance and the
City's subdivision code, but shall exclude the Building Ordinances.
1.9 Mortqaqe. 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 Proiect. The low and moderate income residential development
and associated amenities, and on-site and off-site improvements, as permitted under
and described in Precise Plan/Conditional Use Permit No. to be constructed
on the Property, as the same may hereafter be further refined, enhanced or modified
pursuant to the provisions of this Agreement and pursuant to the conditions of approval
imposed on any further land use entitlement applications that may be reasonably
required in order to implement the development of the Project.
1.11 Property. The real property and any improvements thereon which
is described in Exhibit "A" to this Agreement.
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ORDINANCE NO. 114�
2. Term: Amendment.
2.1 Term. The term of this Agreement (the "Term") shall commence on
the Effective Date and shall terminate on the ten (10) year anniversary date of the
Effective Date, unless sooner terminated or extended as hereinafter provided. The term
of this Agreement shall not modify the Terms of any other Agreement dealing with low
and moderate income households.
2.2 Amendment. The parties to this Agreement at their sole discretion
and by their mutual written consent may from time to time amend the provisions and
terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or
the Exhibits hereto as provided herein shall be effected only upon compliance with the
procedures for amendment, if any, required by the Development Agreement Legislation
and the Development Agreement Ordinance. The City shall, after any such amendment
takes effect, cause an appropriate notice of such amendment to be recorded in the
official records of the County of Riverside.
3. General Development of the Proiect.
3.1 Proiect•
(a) The Project is described in the Precise Plan/Conditional Use
Permit No. as the same may be modified by a separate Affordable Housing
Agreement with the City which is an integral part hereof.
(b) During the Term hereof, Developer shall have the vested
right to develop the Project in accordance with, and development of the Project shall be
governed by, the approvals given by Precise Plan/Conditional Use Permit No.
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ORDINANCE NO. 1141
as modified by any other agreement for affordable housing and the Existing Land Use
Ordinances. Developer's right to develop the Property in accordance with this Section
3.1 shall remain subject to:
(i) all ordinances, regulations, rules, laws, plans, policies, and
guidelines of the City and its City Council, Planning Commission, and all other City
boards, commissions, and contained within the Existing Land Use Ordinances;
(ii) all amendments or modifications to Existing Land Use Ordinances
after the Effective Date of this Agreement and all ordinances, regulations, rules, laws,
plans, policies, and guidelines of the City and its City Council, Planning Commission,
and all other City boards, commissions, and committees enacted or adopted after the
Effective Date of this Agreement (collectively, "New Laws"), except such New Laws
which would prevent or materially impair Developer's ability to develop the Project in
accordance with the Development Plan unless such New Laws are (A) adopted by the
City on a City-wide basis and applied to the Site in a non-discriminatory manner, (B)
required by a non-City entity to be adopted by or applied by the City (or if optional the
failure to adopt or apply such non-City law or regulation would cause City to sustain a
loss of funds or loss of access to funding or other resources), or (C) New Laws the City
reserves the right to apply under this Agreement;
(iii) all subsequent development approvals implementing the Project
and the conditions or approval associated therewith, including but not limited to Project
Tract Maps and building permits,
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ORDINANCE NO. 1141
(iv) the payment of all fees or exactions in the categories and in the
amounts as required at the time such fees are due and payable which may be at the
time of issuance of building permits, or otherwise as specified by applicable law, aw
existing at the time such fees are due and payable, it being understood that this
Agreement shall not prevent the City from establishing any new City fees, including new
development impact fees, or increasing any existing City fees, and to apply such new or
increased fees to the Project or applicable portion thereof;
(v) the reservation or dedication of land for public purposes or payment
of fees in lieu thereof as required at the time such reservations or dedications or
payments in lieu are required under applicable law to be made or paid;
(vi) Building, electrical, mechanical, fire and similar building codes
based upon uniform codes adopted in, or incorporated by reference into, the Palm
Desert Municipal Code, as existing on the Effective Date of this Agreement or as may
be enacted or amended thereafter, applied to the Project in a nondiscriminatory
manner.
(c) Notwithstanding any condition setting forth the earlier
expiration of any of the Tentative Maps, each of the Tentative Maps shall remain
effective for the Term of this Agreement unless modified with the concurrence of
Developer, its successors or assigns.
3.2 Proiect Timinq; 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
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ORDINANCE NO. ��4�
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 construct
not less than
the maximum number oi square feet of gross floor area or dwelling units of any
permitted use under the Agreement given.
3.3 Buildinq Permits and Other Approvals and Permits. Subject to
(a) Developer's (or its assignee's) compliance with this Agreement, the Existing Land
Use Ordinances and the Building Ordinances, and (b) payment of the usual and
customary fees and charges of general application charged for the processing of such
applications, permits and certificates and for any utility connection, or similar fees and
charges of general application, the City shall process and issue to Developer or its
assignee promptly upon application therefore all necessary use permits, building permits,
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ORDINANCE NO. 1141
occupancy certificates, and other required permits for the construction, use and
occupancy of the Project, or any portion thereof, as applied for, including connection to
all utility systems under the City's jurisdiction and control (to the extent that such
connections are physically feasible and that such utility systems are capable of
adequately servicing the Project).
3.4 Procedures and Standards. The standards for granting or
withholding permits or approvals required hereunder in connection with the
development of the Project shall be governed as provided herein by the standards, terms
and conditions of this Agreement and the Development Plan, and to the extent not
inconsistent therewith, the Existing Land Use Ordinances, but the procedures for
processing applications for such permits or approvals (including the usual and
customary fees of general application charged for such processing) shall be governed
by such ordinances and regulations as may then be applicable and which are consistent
with the Agreements
3.5 Effects of Aqreement. This Agreement shall constitute a part of
the Enacting Ordinance, as if incorporated by reference therein in full. The parties
acknowledge that this Agreement is intended to grant Developer the right to develop the
Project pursuant to specified and known criteria and rules as set forth in the
Development Plan and the Existing Land Use Ordinances, and to grant the City and the
residents of the City certain benefits which they otherwise would not receive.
This Agreement shall be binding upon the City and its successors in accordance
with and subject to its terms and conditions notwithstanding any subsequent action of
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ORDINANCE NO. 1141
the City, whether taken by ordinance or resolution of the City Council, by referenda,
initiative, or otherwise. The parties acknowledge and agree that by entering into this
Agreement and relying thereupon, the Developer has obtained, subject to the terms and
conditions of this Agreement, a vested right to proceed with its development of the
Project in accordance with the proposed uses of the Property, the density and intensity
of development of the Property and the requirements and guidelines for the construction
or provision of on-site and off-site improvements as set forth in the Plan and the Existing
Land Use Ordinances, and the timing provisions of Section 3.2, and the City has
entered into this Agreement in order to secure the public benefits conferred upon it
hereunder which are essential to alleviate current and potential problems in the City and
to protect public health, safety and welfare of the City and its residents, and this
Agreement is an essential element in the achievement of those goals.
3.6 Operatinq Memoranda. Developer and City acknowledge that
the provisions of this Agreement require a close degree of cooperation between
Developer and City, and that refinements and further development of the Project may
demonstrate that changes or additional provisions are appropriate with respect to the
details of performance of the parties under this Agreement in order to effectuate the
purpose of this Agreement and the intent of the parties with respect thereto. If and when,
from time to time, the parties find that such changes or additional provisions are necessary
or appropriate, and subject to the provisions of the next succeeding sentence, they shall
effectuate such changes or provide for such additional provisions through operating
memoranda to be approved in good faith by the parties, which, after execution, shall be
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ORDINANCE NO. 114�
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.
4. Periodic Review of Comaliance. In accordance with Govt. Code Section
65865.1, the City Council shall review this Agreement at least each calendar year
during the term of this Agreement. At such periodic reviews, Developer must
demonstrate its good faith compliance with the terms of this Agreement. Developer
agrees to furnish such evidence of good faith compliance as the Cit, and after
reasonable exercise of its discretion and after reasonable notice to Developer, may
require.
5. Permitted Delays: Supersedure bv Subsequent Laws.
5.1 Permitted Delays. In addition to any other provisions of this
Agreement with respect to delay, Developer and City shall be excused from
performance of their obligations hereunder during any period of delay caused by acts
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ORDINANCE NO. 114�
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.
5.2 Supercedure of Subsequent Laws or Judicial Action. The
provisions of this Agreement shall, to the extent feasible, be modified or suspended as
may be necessary to comply with any new Law or decision issued by a court of
competent jurisdiction (a "Decision"), enacted or made after the Effective Date which
prevents or precludes compliance with one or more provisions of this Agreement.
Promptly after enactment of any such new Law, or issuance of such Decision, the
parties shall meet and confer in good faith to determine the feasibility of any such
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ORDINANCE NO. 1141
modification or suspension based on the effect such modification or suspension would
have on the purposes and intent of this Agreement. In addition, Developer and City
shall have the right to challenge the new Law or the Decision preventing compliance with
the terms of this Agreement. In the event that such challenge is successful, this
Agreement shall remain unmodified and in full force and effect, except that the Term
shall be extended, in accordance with Section 5.1 above, for a period of time equal
to the length of time the challenge was pursued.
6. Events of Default; Remedies; Termination.
6.1 Events of Default. Subject to any extensions of time by mutual
consent in writing, and subject to the provisions of Section 5 above regarding permitted
delays, the failure of either party to perform any material term or provision of this
Agreement shall constitute an event of default hereunder ("Event of Default") if such
defaulting pa�ty 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
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ORDINANCE NO. 1141
this Agreement, institution of legal proceedings with respect thereto, or issuance of any
permit, map, certificate of occupancy, approval or entitlement with respect to the
Project.
6.2 Remedies. Upon the occurrence of an Event of Default, the
nondefaulting party shall have such rights and remedies against the defaulting party as
it may have at law or in equity, including, but not limited to, the right to damages and the
right to terminate this Agreement or seek mandamus, specific performance, injunctive or
declaratory relief. Notwithstanding the foregoing and except as otherwise provided in
Section 6.1 hereof, if either Developer or City elects to terminate this Agreement as a
result of the occurrence of an Event of Default, such proceeding of termination shall
constitute such party's exclusive and sole remedy, and with respect to such election and
City and Developer hereby waive, release and relinquish any other right or remedy
otherwise available under this Agreement or at law or equity.
6.3 Waiver: Remedies Cumulative. Failure by a party to insist upon
the strict pertormance 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.
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ORDINANCE NO. 1141
6.4 Effect of Termination. Termination of this Agreement by one
party due to the other party's default, or as a result of the exercise of the right of
termination provided to the Developer under Section 6.2 hereof, shall not affect any
right or duty emanating from any approvals, permits, certificates or other entitlements
with respect to the Property or the Project which were issued, approved or provided by
the City prior to the date of termination of this Agreement. If City terminates this
Agreement because of developer's default, then City shall retain any and all benefits,
including money, land or improvements conveyed to or received by the City prior to the
date of termination of this agreement, subject to any reimbursement obligations of the
City. If developer terminates this agreement because of City's default, or as a result of
the exercise of the right of termination provided to the developer under section 6.2
hereof, then developer shall be entitled to all of the benefits arising out of, or approvals,
permits, certificates or other entitlements on account of, any exactions paid, given or
dedicated to, or received by, City prior to the date of termination of this Agreement.
Except as otherwise provided in this section 6.2, all of the rights, duties and obligations
of the parties hereunder shall othen�vise 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.
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ORDINANCE NO. �141
6.5 Third Partv Actions. Any court action or proceeding brought by
any third party to challenge this agreement or any permit or approval required from City
or any other governmental entity for development or construction of all or any portion of
the project, whether or not developer is a party defendant to or real party defendant in
interest in such action or proceeding, shall constitute a permitted delay under section
5.1.
7. Encumbrances on Propertv.
7.l Discretion to Encumber. The parties hereto agree that
this Agreement shall not prevent or limit Developer, in any manner, at Developer's
sole discretion, from encumbering the Property or any portion thereof or any
improvements thereon with any mortgage, deed of trust or other security device
("Mortgage") securing financing with respect to the Property. The City acknowledges
that the lenders providing such financing may require certain modifications to this
Agreement, and the City agrees upon request, from time-to-time, to meet with Developer
and/or representatives of such lenders to negotiate in good faith any such request for
modification. City further agrees that it will not unreasonably withhold its consent to any
such requested modification. Any Mortgage on the Prope�ty shall include appropriate
provisions for the partial release of said Mortgage to assure that Developer can
convey to the City, free and clear of encumbrances, any portions of the Property
which Developer is conditioned to convey or has otherwise agreed to convey to
the City or its designee.
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ORDINANCE NO. 114�
7.2 Mortqaqe Protection. This Agreement shall be superior and
senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage
made in good faith and for value, and any acquisition or acceptance of title or any right
or interest in or with respect to the Site or any portion thereof by a Mortgagee
(whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure
or otherwise) shall be subject to all of the terms and conditions of this Agreement.
7.3 Mort4aqee Not Obliqated. Notwithstanding the provisions of
Section 7.2, no Mortgagee will have any obligation or duty under this Agreement to
perform the obligations of Developer or other affirmative covenants of Developer
hereunder, or to guarantee such performance, except that to the extent that any covenant
to be performed by Developer is a condition to the performance of a covenant by City,
the performance thereof shall continue to be a condition precedent to City's
performance hereunder.
7.4 Estoppel Certificates. Either party may, at any time, and from
time to time, deliver written notice to the other party requesting such party to certify in
writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and
effect and a binding obligation of the parties, (ii) this Agreement has not been amended
or modified, or if so amended or modified, identifying such amendments or
modifications, and (iii) the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, describing therein the nature and
amount of any such defaults. A party receiving a request hereunder shall execute and
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ORDINANCE NO. 1141
return such certificate within thirty (30) days following the receipt thereof. City
acknowledges that a certificate hereunder may be relied upon by transferees,
assignees and lessees of the Developer and the holders of any Mortgage.
8. Transfers and Assiqnments; Effect of Aqreement on Title.
8.1 Riqhts 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, transferee or assignee
were Developer hereunder.
8.2 Covenants Run with Land.
(i) All of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding upon the parties
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ORDINANCE NO. 1141
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 entiry succeeding to
an interest in such lands.
9. Notices. Any notice to either party shall be in writing and given by
delivering the same to such party in person or by sending the same by registered or
certified mail, return receipt requested, with postage prepaid, to the following addresses:
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ORDINANCE NO. 1 t41
If to City:
City Clerk of Palm Desert
73-510 Fred Waring drive
Palm Desert, California 92260
If to Developer:
Bernard Investment Group
Attention:
Either party may change its mailing address at any time by giving written notice
of such change to the other party in the manner provided herein. All notices under this
agreement shall be deemed given, received, made or communicated on the date
personal delivery is effected or, if mailed, on the delivery date or attempted delivery date
shown on the return receipt.
10. Indemnification: Developer's Obliqation.
10.1 DeveloQer's Wronq-Doinq. 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 of developer.
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ORDINANCE NO. 114�
10.2 Environmental Assurances. Developer shall indemnify and hold
the indemnified parties free and harmless from any liability deriving from the City's
execution or performance of this agreement, based or asserted, upon any act or
omission of developer, its officers, agents, employees, contractors, subcontractors and
independent contractors for any violation of any federal, state or local law, ordinance or
regulation relating to hazardous or toxic materials, industrial hygiene, or environmental
conditions created by developer or its officers, agents or employees, contractors,
subcontractors and independent contractors after the effective date and developer shall
defend, at its expense, including attorneys fees, the indemnified parties in any action
based or asserted upon any such alleged act or omission.
10.3 Challenqes to Aqreement. Developer agrees and shall indemnify,
hold harmless and defend the indemnified parties from any challenge to the validity of
this Agreement, or to the City's implementations of its rights under this agreement.
10.4 Defense bv Counsel Chosen bv Citv. In the event the
indemnified parties are made a party to any action, lawsuit other adversarial proceeding
in any way involving claims arising from this Agreement or Project, developer shall
provide a defense to the indemnified parties, with counsel reasonably acceptable to
Ciry. 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.
10.5 Non-liabilitv of Citv Officers and Emalovees. No official, officer,
employee, agent, or representative of the City, acting in his/her official capacity, shall be
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ORDINANCE NO. 1141
personally liable to developer, or any successor or assign, for any loss, cost, damages,
claim, liability or judgment arising out of or in connection to this agreement, or for any
act or omission on the part of the City.
10.6 Survival. The provisions of these sections 10.1, 10.2, 10.3 and
10.4 shall survive the termination or expiration of this agreement.
ii. Miscellaneous.
ii.i Relationshia of Parties. It is understood that the Project is a
private development, that neither party is acting as the agent of the other in any respect
hereunder, and that each party is an independent contractor. It is further understood
that none of the terms or provisions of this agreement are intended to or shall be
deemed to create a partnership, joint venture or joint enterprise between the parties
hereto.
11.2 Consents. Unless otherwise herein provided, whenever approval,
consent, acceptance or satisfaction (collectively, a "consent") is required of a party
pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless
provision is otherwise specified in this Agreement or otherwise required by law for a
specific time period, consent shall be deemed given within thirty (30) days after receipt
of the written request for consent, and if a party shall neither approve nor disapprove
within such thirty (30) day period, or other time period as may be specified in this
Agreement or otherwise required by laver for consent, that party shall then be deemed
to have given its consent. If a party shall disapprove, the reasons therefor shall be
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ORDINANCE NO. 114�
stated in reasonable detail in writing. This section does not apply to development
approvals by the City.
11.3 Not a Public Dedicatlon. Except as otherwise expressly provided
herein, nothing herein contained shall be deemed to be a gift or dedication of the
Property, or of the project or any portion thereof, to the general public, for the general
public, or for any public use or purpose whatsoever, it being the intention and
understanding of the parties that this Agreement be strictly limited to and for the
purposes herein expressed for the development of the Project as private property.
11.4 Severabilltv. If any term, provision covenant or condition of this
Agreement shall be determined invalid, void or unenforceable by judgment or court
order, the remainder of this Agreement shall remain in full force and effect, unless
enforcement of this Agreement as so invalidated would be unreasonable or grossly
inequitable under all the relevant circumstances or would frustrate the purposes of this
Agreement.
11.5 Exhibits. The exhibits listed in the Table of Contents, to which
reference is made herein, are deemed incorporated into this Agreement in their entirety
by reference thereto.
11.6 Entire Aqreement. 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,
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ORDINANCE NO. 1�41
warranties or representations are superseded in total by this Agreement and Exhibits
hereto.
11.7 Governinq Law: Construction of Aqreement. This Agreement,
and the rights and obligations of the parties, shall be governed by and interpreted in
accordance with the laws of the State of California. The provisions of this Agreement
and the Exhibits hereto shall be construed as a whole according to their common
meaning and not strictly for or against any party and consistent with the provisions
hereof, in order to achieve the objectives and purposes of the parties hereunder. The
captions preceding the text of each Section, subsection and the Table of Contents
hereof are included only for convenience of reference and shall be disregarded in the
construction and interpretation of this Agreement. Wherever required by the context,
the singular shall include the plural and vice versa, and the masculine gender shall
include the feminine or neuter genders, or vice versa.
11.8 Siqnature Paqes. For convenience, the signatures of the parties
of this Agreement may be executed and acknowledged on separate pages which, when
attached to this Agreement, shall constitute this as one complete agreement.
11.9 Time. Time is of the essence of this Agreement and of each and
every term and condition hereof.
11.10 Prevailinq Partv's Attornev's Fees and Costs. If any party to this
Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises
with respect to the meaning or interpretation of any provision hereof or the performance
of the obligations of any party hereto, the defaulting party or the party not prevailing in
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ORDINANCE NO. 1141
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above-written.
DEVELOPER:
BERNARD INVESTMENT GROUP
A California Corporation
By:
By:
CITY:
CITY OF PALM DESERT, CALIFORNIA, a
municipal corporation organized and existing
under the laws of the State of California
By:
Richard S. Kelly, Mayor
Attest:
Rachelle D. Klassen, City Clerk
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ORDINANCE NO. 114t
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , 2007, 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
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ORDINANCE NO. 1141
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[to be attached prior to recording]
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RESOLUTION NO. 07-61
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A PRECISE PLAN /
CONDITIONAL USE PERMIT TO ALLOW THE CONSTRUCTION OF A
12-UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE SOUTH
SIDE OF SANTA ROSA WAY, APPROXIMATELY 262 FEET EAST OF
SAN PASCUAL AVENUE.
CASE NOS. PP/CUP 07-06
WHEREAS, the City Council of the City of Palm Desert, California, did on the g�n
day of August 2007 hold a duly noticed public hearing to consider the request of
Bernard Investment Group / Ken Bernard for the above mentioned project; and
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 17h day of July 2007 hold a duly noticed public hearing to consider the said request
and by its Resolution No. 2449 recommended approval of PP/CUP 07-06; and
WHEREAS, said application has complied with the requirements of the "City of
Palm Desert Procedure for Implementation of the California Environmental Quality Act,
Resolution No. 06-78," in that the Director of Community Development has determined
that the project is a Class 32 categorical exemption; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all interested persons desiring to be heard, said City Council
did find the following facts and reasons to exist to justify approval of PP/CUP 07-06:
1. The proposed location of the precise plan / conditional use is in accord
with the objectives of the Zoning Ordinance and the purpose of the district
in which the site is located.
2. The proposed location of the precise plan / conditional use and the
conditions under which it will be operated and maintained will not be
detrimental to the public health, safety or general welfare, or be materially
injurious to properties or improvements in the vicinity.
3. The proposed precise plan / conditional use will comply with each of the
applicable provisions of this title.
4. The proposed precise plan / conditional use complies with the goals,
objectives, and policies of the city's adopted General Plan.
RESOLUTION NO. 07-6�
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 it does hereby approve Precise Plan / Conditional Use Permit 07-06,
subject to attached conditions
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert
City Council, held on this 9'h day of August, 2007, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHARD KELLY, Mayor
ATTEST:
RACHELLE KLASSEN, City Clerk
City of Palm Desert, California
2
RESOLUTION NO. 07-61
CONDITIONS OF APPROVAL
CASE NOS. PP/CUP 07-06
Department of CommunitY Development:
1. The development of the property shali conform substantially with exhibits on file
with the department of community developmenUpianning, 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 shatl 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 Architectura{ Commission
City Fire Marshal
Public Works Department
Evidence of said permit or clearance from the above agencies shall be presented
to the department of building and safety at the time of issuance of a building
permit for the use contemplated herewith.
5. Access to trash/service areas shall be placed so as not to conflict with parking
areas. Said placement shall be approved by applicable trash company and
Department of Community Development and shall include a recycling program.
6. Project is subject to Art in Public Places program per Palm Desert Municipal
Code Chapter 4.10. Method of compliance shall be established prior to
completion of the Architectural Review Commission process.
7 Applicant agrees to maintain the landscaping required to be installed pursuant to
these conditions. Applicant will enter into an agreement to maintain said
landscaping for the life of the project, which agreement shall be notarized and
which agreement shall be recorded. It is the specific intent of the parties that this
condition and agreement sun 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
3
RESOLUTION NO, o�-bi
pruning for various times of the year for the specific materials to be planted, as
well as periodic replacement of materials. All to be consistent with the Property
Maintenance Ordinance (Ordinance No. 801) and the approved landscape plan.
8. Applicant shall execute and obtain approval of the City Council of the attached
development agreement prior to obtaining a building permit for the project.
Deaartment of Public Works:
1. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal
Code and Pa(m Desert Ordinance Number 653, shall be paid prior to issuance of
a grading permit.
2. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17
and 79-55, shall be paid prior to issuance of a grading permit.
3. 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 p(ans shall be reviewed and approved by the Director of Public
Works and a surety posted to guarantee the installation of all required offsite
improvements prior to issuance of a grading permit. "As-built" plans shall be
submitted to, and approved by, the Director of Public Works prior to the
acceptance of the improvements by the City.
4. All private driveways and parking areas shall be inspected by the engineering
department and a standard inspection fee paid prior to the issuance of a grading
permit.
5. Landscaping maintenance on Santa Rosa Way shall be the responsibility of the
property owner.
6. In accordance with Palm Desert Municipal Code Chapter 27, complete grading
plans and specifications shall be submitted to the Director of Public Works for
checking and approval prior to the issuance of any permits associated with this
project.
7. Size, number and location of driveways shall be to the specifications of the
Department of Public Works with one 24' wide driveway approach to be allowed
to serve this property.
8. Any and ali offsite improvements shall be preceded by the approval of plans by
the Director of Public Works and the issuance of valid encroachment permits by
the Department of Public Works. Trash enclosure doors shall be located so as to
not block sidewalks.
4
RESOLUTION NO. 0�-61
9. 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 the grading permit.
10. Proposed building pad elevations are subject to review and modification in
accordance with Section 27 of the Palm Desert Municipal Code.
11. Applicant shall comply with the provisions of Palm Desert Municipal Code
Section 24.12, Fugitive Dust (PM10) Control.
12. The applicant shall record a 4-foot wide easement along the front property line
for pedestrian access. The length of the easement shall be reviewed and
approved by the Department of Public Works City Engineer.
Riverside Countv Fire Department:
1. With respect to the conditions of approval regarding the above referenced
project, the Fire Department recommends the following fire protection measures
be provided in accordance with City Municipal Codes, NFPA, UFC and UBC, or
any recognized fire protection standards.
The Fire Department is required to set a minimum fire flow for the remodel or
construction of all buildings per UFC article 87.
2. A fire flow of 1500 gpm for a 1-hour duration at 20 psi residual pressure must be
available before any combustible material is placed on the job site.
3. Provide or show there exists a water system capable of providing a gpm fire flow
of 2500 gpm for multifamily dwellings.
4. The required fire flow shall be available from a wet barrel Super Hydrant(s) 4"x2-
1/2"x2-1/2", located not less than 25' nor more than 165 feet from any portion of
a multifamily dwelling measured via vehicular travelway.
5. Water plans must be approved by the Fire Marshal and include verification that
the water system will produce the required fire flow.
6. Install a complete NFPA 13 fire sprinkler system. This applies to all buildings with
a 3000 square foot total cumulative floor area. The Fire Marshal shall approve
the locations of all post indicator valves and fire department connections. All
valves and connections shall not be less than 25' from the building and within 50'
of an approved hydrant. Exempted are one and two family dwellings. (13 R and
attic protector)
5
RESOLUTION NO. a7-61
7. Ali vaives controlling the water suppiy for automatic sprinkier systems and water-
flow switches shall be monitored and alarmed per UBC Chapter 9.
8. Install a fire alarm system as required by the UBC Chapter 3.
9. Install portable fire extinguishers per NFPA 10, but not less than one 2A10BC
extinguisher per 3000 square feet and not over 75' walking distance. A AK@ type
fire extinguisher is required in ail commercial kitchens.
10. Ail 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 sha11 not be
less 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' sha44 be
provided with a minimum 45' radius turn-around 55' in industrial developments.
11. 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".
12. All buildings shall have illuminated addresses of a size approved by the city.
13. RII fire sprinkler systems, fixed fire suppression systems and alarm plans must be
submitted separately to the Fire Marshal for approval prior to construction.
14. Conditions subject to change with adoption of new codes, ordinances, laws or
when building permits are not obtained within 12 months.
6
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CITY OF PALM DESERT
LEGAL NOTICE
CASE NOS. DA 07-01 AND PP/CUP 07-06
NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert
City Council to consider a request by Bemard Investment Group, Inc. for approval of a
precise plan of design, conditional use permit and development agreement to construct a
12-unit senior citizen apartment project located at 73-811 Santa Rosa Way.
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SAID public hearing will be held on Thursday August 9, 2007, at 4:00 p.m. in the Council
Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert,
Cal'rfomia, at which time and place all interested persons are invited to attend and be
heard. Written comments conceming all items covered by this public hearing notice shall
be accepted up to the date of the hearing. Information conceming the proposed project
and/or negative declaration is available for review in the Department of Community
Development at the above address between the hours of 8:00 a.m. and 5:00 p.m.
Monday through Friday. If you challenge the proposed actions in court, you may be
limited to saising on4y those issues you or someone else raised at the public hearing
described in this notice, or in written correspondence delivered to the Planning
Commission (or city council)at,or prior to,the public hearing.
PUBLISH: Desert Sun RACHELLE KLASSEN, City Clerk
July 31,2007 Palm Desert City Council
RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
Attn: Janet Moore, Housing Administrator
[Space Above For Recorder's Use Only]
The undersigned declares that this Housing Agreement is exempt from Recording Fees
pursuant to California Government Code Section 27383.
HOUSING AGREEMENT
By and Between
THE CITY OF PALM DESERT
and
BERNARD INVESTMENT GROUP
DATED AS OF AUGUST 9, 2007
Bernartl Investment�Hous�ng Agreement 09 August 2007 DOC P6402�0001�98822pv2.doc
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INTERPRETATION..................................................1
1.1 Definitions...............................................................................................................1
1 .2 Rules of Construction..............................................................................................2
ARTICLE 2. ONGOING PROJECT OBLIGATIONS.....................................................3
2.1 Allocation of Senior Citizen Low Income Units and Senior Citizen Moderate
IncomeUnits...........................................................................................................3
2.2 Residential Rental Property ....................................................................................3
2.3 Senior Citizen Low Income Households and Senior Citizen Moderate Income
Households.............................................................................................................3
2.4 Allowable Rent........................................................................................................4
2.5 Rent Increases........................................................................................................5
2.6 Increased Income of Occupying Households..........................................................5
2.7 Lease Provisions.....................................................................................................6
2.8 Security Depasits....................................................................................................6
2.9 Additional Information; Books and Records............................................................6
2.10 Specific Enforcement of Affordability Restrictions...................................................6
2.11 City Subsidy Option ................................................................................................7
2.12 Audit........................................................................................................................7
2.13 Management Agent.................................................................................................7
2.14 Binding for Term .....................................................................................................7
ARTICLE 3. TERM AND RECORDATION...................................................................7
3.1 Term of Housing Agreement...................................................................................7
3.2 Agreement to Record..............................................................................................7
3.3 Early Termination of Restrictions ............................................................................7
ARTICLE 4. DEFAULT; REMEDIES............................................................................8
4.1 An Event of Default.................................................................................................8
4.2 City's Option to Lease.............................................................................................9
4.3 Other Remedies......................................................................................................9
4.4 Action at Law; No Remedy Exclusive .....................................................................9
ARTICLE 5. GENERAL PROVISIONS.......................................................................10
5.1 Limitations on Recourse .......................................................................................10
5.2 Maintenance, Repair, Alterations..........................................................................10
5.3 Notice....................................................................................................................10
5.4 RelationshiQ of Parties..........................................................................................11
5.5 No Claims .............................................................................................................11
5.6 Conflict of Interests...............................................................................................11
5.7 No Personal Liability of City or Agency Officials, Employees and Agents.............11
5.8 Unavailable Delay; Extension of Time of Performance.........................................11
5.9 Title of Parts and Sections....................................................................................12
5.10 Hold Harmless ......................................................................................................12
5.11 Rights and Remedies Cumulative.........................................................................12
5.12 Applicable Law......................................................................................................12
5.13 Severability ...........................................................................................................12
5.14 Legal Actions ........................................................................................................12
5.15 Binding Upon Successors.....................................................................................13
5.16 Time of the Essence .............................................................................................13
5.17 Approval by the Ciry..............................................................................................13
5.18 Complete Understanding of the Parties................................................................13
5.19 Burden and Benefit...............................................................................................13
5.20 Counterparts.........................................................................................................14
Bemaid Investment-Hous�ng Agreement 09 August 2007.DOC II P64020001�988220✓2.doc
HOUSING AGREEMENT
THIS HOUSING AGREEMENT (the "Housing AgreemenY') is dated for reference
purposes as of August 9, 2007, and is by and between the CITY OF PALM DESERT, a
municipal corporation organized and existing under the laws of the State of California
(the "City") and BERNARD INVESTMENT GROUP, a California Corporation (the
"Owner").
RECITALS
This Housing Agreement is predicated upon the following facts:
A. 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"). In consideration of the Owner entering into this
Housing Agreement, City has granted approval of increased densities due to a Senior
Housing Overlay, a precise plan, and a conditional use permit to allow construction of
twelve (12) apartments units on 0.53 +/- acres.
B. As a condition of said approval (Resolution No. TBD, Case Nos.
PP/CUP 01-23 and DA 02-01,), City has required, and the Owner has agreed, that two
(2) of the units to be constructed as part of the Project (as hereinafter defined) shall be
set aside and continuously made available for rent at affordable rental rates to senior
citizen households of low and moderate income.
C. The Owner intends to construct a twelve (12) studio unit senior apartment
complex on the Property.
D. The purpose of this Housing Agreement is to establish the conditions,
covenants, restrictions and servitudes in favor of the City upon and subject to which the
Project shall be occupied, leased and rented. The provisions of this Housing
Agreement shall run with title to each and every portion of the Project and shall inure to
and pass with each and every portion thereof and shall apply to and bind all
successors-in-interest of Owner.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the City and the Owner hereby agree as follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following meanings
unless the context in which they are used clearly requires otherwise.
"Agency" means the Palm Desert Redevelopment Agency, a public body,
corporate and politic.
"AMI" shall mean the area median income for Riverside County as published by
Bemard Investment-Housing Agr�ment 09 August 2007 DOC � P6402 0001�988Y20✓2 Goc
the United States Department of Housing and Urban Development, or if such agency
shall cease to publish such an index, then any comparable index published by any other
federal or state agency which is approved by the City. The AMI shall be adjusted for
family size in accordance with the state regu{ations adopted pursuant to California
Health and Safety Code Section 50052.5.
"City" shall mean the City of Palm Desert.
"Project" is the twelve (12) studio unit senior residential apartment complex
described in the Recitals hereto, together with all functionally related ancillary facilities,
equipment, fixtures and furniture owned by the Owner and located on the Property.
"Restricted UniY' is defined in Section 2.1 below.
"Senior Citizen Low Income Household" shall mean a maximum two (2) person
household of which all members are sixty-two (62) years of age or older and whose
income does not exceed the qualifying limits for persons and families of low income set
forth in Caiifornia Health and Safety Code Section 50079.5 and Title 25 of the California
Code of Regulations, Section 6910, et seq., as such statute and regulations may be
amended from time to time.
"Senior Citizen Moderate Income Household" shall mean a maximum two (2)
person household of which all members are sixty-two (62) years of age or older and
whose income does not exceed the qualifying limits for persons and families of
moderate income set forth in California Health and Safety Code Section 50093 and Title
25 of the California Code of Regulations, Section 6910, et seq., as such statute and
regulations may be amended from time to time.
"Subsidy Option Unit" is defined in Section 2.11 below.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.2 Unless otherwise specified, references to Articles, Sections, and
other subdivisions of this Housing Agreement are references to the designated Articles,
Sections, and other subdivisions of this Housing Agreement as originally executed. The
words "hereof," "herein," "hereunder," and words of similar import shall refer to this
Housing Agreement as a whole.
1.2.3 All of the terms and provisions hereof shall be construed to
effectuate the purposes set forth in this Housing Agreement and to sustain the validity
hereof.
1.2.4 Headings or titles of the several Articles and Sections hereof and
the table of contents appended to copies hereof shall be solely for convenience of
Bemard Investment-Housmg Agreement 09 August 2007.DOC 2 P6402-0001�.988220v2 tloc
reference and shall not affect the meaning, construction, or effect of the provisions
hereof.
ART{CLE 2. ONGOING PROJECT OBLIGATIONS
2.1 Allocation of Senior Citizen Low Income Units and Senior Citizen Moderate
Income Units. During the entire term of this Housing Agreement, two (2) of the
studio apartment units constructed in the Project shall be allocated for occupancy by
one (1) Senior Citizen Low Income Household and one (1) Senior Citizen Moderate
Income Household (which apartment units are collectively referred to herein as the
"Restricted Units"). At no time during the term of this Agreement will the Restricted
Units be concentrated into one area of the Project.
2.2 Residential Rental Propertv. Owner covenants and agrees to operate the Project
as residential rental property during the entire term of this Housing Agreement.
Restricted Units in the Project will be held and used for the purpose of providing
affordable senior rental housing, and Owner shall own, manage and operate, or cause
the management and operation of, the Project to provide such affordable senior rental
housing. Owner will not knowingly permit any of the Restricted Units in the Project to be
used on a transient basis, and will not rent any Restricted Unit for a period of less than
thirty (30) consecutive days.
2.3 Senior Citizen Low Income Households and Senior Citizen Moderate Income
Households.
2.3.1 Income Qualification. Restricted Units will be exclusively occupied
or, if vacant, made available for occupancy by Senior Citizen Low Income Households
and Senior Citizen Moderate Income Households on a continuous basis. Senior Citizen
Low Income Households and Senior Citizen Moderate Income Households are only
those households which qualify to occupy Restricted Units pursuant to the income
guidelines and limitations established by this Housing Agreement. Owner will advise
the City in writing on an annual or other periodic basis, as reasonably requested by the
City, of occupancy of Restricted Units by Senior Citizen Low Income Households and
Senior Citizen Moderate Income Households by delivery to the City of a certificate in a
form specified by the City. Owner will also obtain and maintain on file Certifications of
Household Eligibiliry in the form attached hereto as Exhibit "B" for each Senior Citizen
Low Income Household and Senior Citizen Moderate Income Household, and shall
provide copies of the same to the City at such times as the City may, from time to time,
require. Owner shall make a good faith effort to verify that the income certification
provided by an applicant is accurate by taking any one or more of the following steps as
part of the verification process:
(i) Obtain a pay stub for the most recent pay period;
(ii) Obtain an income tax return for the most recent tax year;
(iii) Obtain an income verification form from the applicanYs
current employer;
Bemartl Investment-Housing AgreemMt 09 August 2007 DOC �7 P6402-0001�988Y2W2 doC
(iv) Obtain an income verification form from the Social Security
Administration and/or the State Department of Social Services, or its equivalent, if the
applicant receives assistance from either of those agencies;
(v) If the applicant is unemployed and has no tax return, obtain
another form of independent verification; or
(vi) Obtain such other documentation as may be reasonably
acceptable to the City to verify income.
Owner will prepare and submit to the City at such time as the City may, from time
to time require, a Certificate of Continuing Compliance in the form attached hereto as
Exhibit "C" and stating: (i) the number of dwelling units in the Project which were
occupied by Senior Citizen Low Income Households and Senior Citizen Moderate
Income Households or held vacant and available for occupancy by Senior Citizen Low
Income Households and Senior Citizen Moderate Income Households during such
period; and (ii) that to the knowledge of the Owner, no default has occurred under the
provisions of this Housing Agreement.
Owner will also prepare and submit to the City each year for the preceding
calendar year a report, in form and substance reasonably satisfactory to the City,
summarizing the vacancy rate of the Restricted Units and of the Project on a month-to-
month, or other periodic basis as approved by the City, for such calendar year.
2.3.2 Particiqation in Federal Programs. Owner will accept as tenants of
the Project, on the same basis as all other prospective tenants, Senior Citizen Low
Income Households and Senior Citizen Moderate Income Households who are
recipients of Federal certificates and/or vouchers for rent subsidies pursuant to an
existing program under Section 8 of the United States Housing Act of 1937 or its
successor, and shall not apply selection criteria to Section 8 certificate holders that are
more burdensome than the criteria applied to all other prospective tenants.
2.3.3 Citv Option to Subsidize Senior Citizen Low Income Households.
The Ciry shall have the option of requesting that the Owner rent an available Restricted
Unit otherwise allocated to a Senior Citizen Moderate Income Household to a Senior
Citizen Low Income Household, provided that the City agrees to provide a subsidy
equal to the difference between the allowable rent that can be charged to a Senior
Citizen Low Income Household and a Senior Citizen Moderate Income Household as
set forth in Section 2.4 below.
2.4 Allowable Rent. The monthly rent charged (taking into account a reasonable
allowance for utilities) to Senior Citizen Low Income Households occupying a Restricted
Unit shall be no greater than rent calculated in compliance with applicable provisions of
California Health and Safety Code Section 50053(b)(3) and Title 25 of the California
Code of Regulations, Section 6910, et seq., as amended from time to time, and the
monthly rent charged (taking into account or reasonable allowance for utilities) to Senior
Citizen Moderate Income Households occupying a Restricted Unit shall be no greater
Bemartl Investment-Housmg Agreement 09 August 2007 DOC 4 P6aaz�000i�veaz2az.aa
than rent calculated in compliance with applicable provisions of California Health and
Safety Code Section 50053(b)(4) and Title 25 of the California Code of Regulations,
Section 6910, et seq., as amended from time to time (in each case including any
optional requirements set forth in such laws and regulations as may be selected by the
Executive Director of the Agency in his sole and absolute discretion).
2.5 Rent Increases. Rents for continuously occupied Restricted Units may be
increased only once per year. The rents charged following such an increase, or upon a
vacancy and new occupancy by a Senior Citizen Low Income Household or a Senior
Citizen Moderate Income Household, shall not exceed the allowable rent calculated in
compliance with Section 2.4 above. Owner shall give proper written notice to tenants of
all rent increases, and upon written request provide City with reasonable detail
concerning the amount of and rationale for such rent increases.
2.6 Increased Income of Occuqvinp Households.
2.6.1 Annually, on the anniversary date of occupancy of a Restricted Unit
by a qualifying Senior Citizen Low Income Household or Senior Citizen Moderate
Income Household, Owner shall re-certify the financial qualifications of the person or
persons residing within the Restricted Unit.
2.6.2 If, upon recertification pursuant to Section 2.6.1 above, the Owner
determines that the household income of the occupants of a Restricted Unit allocated to
a Senior Citizen Moderate Income Household exceeds the qualifying income limits
established by this Housing Agreement for Senior Citizen Moderate Income
Households, then such Restricted Unit may be redesignated as a market rate unit,
provided there is a unit of equal size and composition to designate as a Restricted Unit
for Senior Citizen Moderate Income Households, and the monthly rent for such market
rate unit shall not be subject to the allowable rent provisions contained in Section 2.4
above.
If, upon recertification pursuant to Section 2.6.1 above, the Owner
determines that the household income of the occupants of a Restricted Unit allocated to
a Senior Citizen Low Income Household exceeds the qualifying income limits
established by this Housing Agreement for Senior Citizen Low Income Households, but
does not exceed the qualifying income limits established by this Housing Agreement for
Senior Citizen Moderate Income Households, then such Restricted Unit may be
redesignated as a Restricted Unit for Senior Citizen Moderate Income Households,
provided there is a unit of equal size and composition to designate as a Restricted Unit
for Senior Citizen Low Income Households, and the monthly rent for such redesignated
unit shall not exceed the allowable rent that may be charged to Senior Citizen Moderate
Income Households pursuant to Section 2.4 above.
If, upon recertification pursuant to Section 2.6.1 above, the Owner
determines that the household income of the occupants of a Restricted Unit allocated to
a Senior Citizen Low Income Household exceeds the qualifying income limits
established by this Housing Agreement for Senior Citizen Moderate Income
BemarC Investment•Housmg Agreement 09 August 2007 DOC �J P6a02-0001�988220v2 doc
Households, then such Restricted Unit may be redesignated as a market rate unit,
provided there is a unit of equal size and composition to designate as a Restricted Unit
for Senior Citizen Low Income Households, and the monthly rent for such market rate
unit shall not be subject to the allowable rent provisions contained in Section 2.4 above.
2.7 Lease Provisions. The form of lease or rental agreement used by the Owner for
the lease or rental of Restricted Units shall be that which is reasonable and customary
in residential leasing. Each lease or rental agreement for a Restricted Unit shall provide
that the tenants of such Restricted Unit shall be subject to annual certification or
recertification of income and subject to rental increases in accordance with Section 2.6
above. The Owner shall include provisions in leases or rental agreements for all
Restricted Units which authorize the Owner to immediately terminate the tenancy of any
Senior Citizen Low Income Household or Senior Citizen Moderate Income Household
occupying a Restricted Unit where one or more members of such Senior Citizen Low
Income Household or Senior Citizen Moderate Income Household have misrepresented
any fact material to the qualification of such an individual or family as a Senior Citizen
Low Income Household or Senior Citizen Moderate Income Household or other
qualification for occupancy of a Restricted Unit. Each lease or rental agreement shall
also provide that the Owner will not discriminate on the basis of race, creed, color, sex,
national origin, ancestry, religion, marital status, disability or receipt of public assistance
or housing assistance in connection with a rental of a Restricted Unit, or in connection
with the employment or application for employment of persons for operation and
management of the Project, and all contracts, applications and leases entered into for
such purposes shall contain similar nondiscriminatory clauses to such effect.
2.8 Securitv Deqosits. The Owner shall not require security deposits on Restricted
Units in excess of one-month's rent for such Restricted Units.
2.9 Additional Information; Books and Records. Owner shall provide any additional
information concerning the Restricted Units reasonably requested by the Ciry. The Ciry
shall have the right to examine and make copies of all books, records or other
documents maintained by Owner or by any of Owner's agents which pertain to any
Restricted Unit.
2.10 S�ecific Enforcement of Affordabilitv Restrictions. Owner hereby agrees that the
Owner's agreement to comply with the provisions of this Article 2 is one of the reasons
for the precise plan, conditional use permit and density bonus granted by the City and
described in the Recitals hereof, and that in the event of Owner's breach of any of such
provisions, potential monetary damages to the City, as well as to prospective Senior
Citizen Low Income Households and Senior Citizen Moderate Income Households,
would be difficult, if not impossible, to evaluate and quantify. Therefore, in addition to
any other relief to which the City may be entitled as a consequence of the Owner's
breach hereof, Owner agrees to the imposition of the remedy of specific performance
against it upon the occurrence of any Event of Default by Owner in complying with the
provision of this Article 2.
8ernartl Investment-Hous�ng Agreement 09 August 2007 DOC F P6402-0007\98822pv2.doc
2.11 Citv Subsidy Option. In addition to providing the Restricted Units in accordance
with Section 2.1 above, Owner hereby grants the City an option to request that the
Owner rent one (1) additional unit (the "Subsidy Option UniY') to a Senior Citizen Low
Income Household or a Senior Citizen Moderate Income Household, as designated by
the City, if the City provides a rent subsidy that enables Owner to receive a market rate
rent for the Subsidy Option Unit. The market rate rent shall be calculated reasonably by
the City with reference to a regional market survey of rents. The amount of the Ciry's
subsidy for the Subsidy Option Unit shall be the difference between the amount of rent
that may be charged to the tenant under Section 2.4 above and the market rate rent.
The Owner and City shall enter into an amendment to this Housing Agreement
implementing this Section 2.11 within sixty (60) days of City's exercise of its option with
respect to the Subsidy Option Unit.
2.12 Audit. The City shall have the right to perform an audit of the Project to
determine compliance with the provisions of this Housing Agreement. Such audit shall
not be undertaken more often than once each calendar year. All costs and expenses
associated with the audit shall be paid by the Owner.
2.13 Management Aqent. Owner and/or the management agent (if not the Owner)
shall operate the Project in a manner that will provide decent, safe and sanitary
residential facilities to the occupants thereof, and will comply with the provisions of this
Housing Agreement. Upon the written request of the City, the Owner shall cooperate
with the City in the periodic review of the management practices and status of the
Restricted Units in the Project. Periodic reviews shall be undertaken by the City to
determine if the Restricted Units within the Project are being operated and managed in
accordance with the requirements and standards of this Housing Agreement. Results of
such Ciry review shall be provided to Owner. Periodic reviews shall not be undertaken
more often than twice each calendar year.
2.14 Binding for Term. City and Owner agree that (i) the provisions of this Housing
Agreement shall apply to the Project throughout the entire term hereof, as established in
Section 3.1 below, and (ii) upon the occurrence of an Event of Default by Owner the
City shall be entitled to all relief and remedies provided for herein.
ARTICLE 3. TERM AND RECORDATION
3.1 Term of Housinq Agreement. This Housing Agreement shall remain in full force
and effect for a period of fifty-five (55) years from the date on which the City issues the
final certificate of occupancy for the Project.
3.2 Aqreement to Record. Owner hereby consents to the recordation by the City of
this Housing Agreement in the real property records of Riverside Counry. The Owner
shall pay all fees and charges in connection with any such recordation.
3.3 Early Termination of Restrictions. Notwithstanding anything to the contrary
contained herein, this Housing Agreement and all of the terms and restrictions
contained herein shall terminate and be of no further force and effect in the event of
Bemartl Investment-Housin9 Agreement 09 August 2007.DOC 7 P6402•0001�988220v2 tloc
either (i) foreclosure, or delivery of a deed in lieu of foreclosure, whereby a third party
lender with a lien senior to this Housing Agreement becomes the owner of the Project,
or (ii) involuntary noncompliance as a result of unforeseen events such as fire or act of
God which leaves the entire Project uninhabitable, or a change in a federal or state law
or an action of a governmental entity after the date of recordation hereof that prevents
the City from enforcing the provisions of this Housing Agreement, or a condemnation or
a similar event. Upon termination of this Housing Agreement, the parties hereto or their
successors, as applicable, agree to execute, deliver and record appropriate instruments
of release and discharge of the terms hereof; provided, however, that the execution and
delivery of such instrument shall not be necessary or a prerequisite to termination of this
Housing Agreement in accordance with its terms.
ARTICLE 4. DEFAULT; REMEDIES
4.1 An Event of Default. Each of the following shall constitute an "Event of DefaulY'
by the Owner under this Housing Agreement:
4.1.1 Failure by the Owner to duly perform, comply with and observe any
of the conditions, terms, or covenants of any agreement with the City concerning the
Project, or of this Housing Agreement, if such failure remains uncured thirty (30) days
after written notice of such failure from the Ciry to the Owner in the manner provided
herein or, with respect to a default that cannot be cured within thirty (30) days, if the
Owner fails to commence such cure within such thirty (30) day period or thereafter fails
to diligently and continuously proceed with such cure to completion. Provided, however,
if a different cure period or notice requirement is specified under any other section of
this Housing Agreement, then the specific provision shall control.
4.1.2 Any representation or warranty contained in this Housing
Agreement, or in any application, financial statement, certificate, or report submitted by
Owner to the Ciry, proves to have been incorrect in any material respect when made.
4.1.3 A court having jurisdiction shall have made or rendered a decree or
order (i) adjudging Owner to be bankrupt or insolvent; (ii) approving as properly filed a
petition seeking reorganization of Owner or seeking any arrangement on behalf of the
Owner under the bankruptcy law or any other applicable debtor's relief law or statute of
the United States or of any state or other jurisdiction; (iii) appointing a receiver, trustee,
liquidator, or assignee of the Owner in bankruptcy or insolvency or for any of its
properties; or (iv) directing the winding up or liquidation of the Owner, and any such
decree or order described in any of the foregoing subsections shall not have been
stayed or discharged for a period of ninery (90) days.
4.1.4 The Owner shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment or execution on any substantial part
of its property, unless the property so assigned, sequestered, attached, or executed
upon shall have been returned or released within ninety (90) days after such event
(unless a lesser time period is permitted for cure hereunder) or prior to sale pursuant to
such sequestration, attachment, or execution. If the Owner is diligently working to
Bernard Investment-Housing Agreement 09 August 2007.DOC 8 P6402-0001�988220v2.tloc
obtain a return or release of the property, and the City's interests hereunder are not
imminently threatened in its reasonable judgment, then an Event of Default shall not be
deemed to have occurred under this subsection 4.1.4.
4.1.5 The Owner shall have voluntarily suspended its business or
dissolved.
4.1.6 The condemnation, seizure, or appropriation of all or, in the opinion
of the Ciry, a substantial part of the Project, except for condemnation initiated by the
City.
4.1.7 The occurrence of any default under any document or instrument
relating to any loan made in connection with the Project and which is secured by a deed
of trust or other instrument senior to this Housing Agreement.
4.2 City's Option to Lease. Upon the occurrence of an Event of Default, and to
cause the Project to meet the requirements of this Housing Agreement, Owner hereby
grants to the City the option to lease, at the then current market rental rate in the
Project, up to all of the apartment units in the Project as necessary to achieve
compliance with the provisions of Article 2 of this Housing Agreement and for the
purpose of subleasing such apartment units in accordance with the requirements of this
Housing Agreement. Any rental paid under any such sublease shall be paid to the City
without obligation to pay any such rent to Owner during the pendency of Owner's
default.
4.3 Other Remedies. In addition to the rights and remedies otherwise expressly
provided herein for the benefit of the City upon an Event of Default by the Owner
hereunder, the City shall have the right to mandamus or other suit, action or proceeding
at law or in equity to require the Owner to perform its obligations and covenants under
this Housing Agreement, or to enjoin acts or things which may be unlawful or in violation
of the provisions hereof.
4.4 Action at Law; No Remedv Exclusive. The City may take whatever action at law
or in equity as may be necessary or desirable to enforce performance and observance
of any obligation, agreement or covenant of the Owner under this Housing Agreement.
No remedy herein conferred upon or reserved by the City is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Housing
Agreement or now or hereafter existing at law, in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of such right or power, but any such
right or power may be exercised from time to time and as often as City may deem
expedient. In order to entitle the City to exercise any remedy reserved to it in this
Housing Agreement, it shall not be necessary to give any notice, other than such notice
as may be herein expressly required or required by law to be given.
Bemartl Investment�Hwsing Ag�eement 09 Auyust 2007.DOC 9 Paao2�000��eaazzaz aa
ARTICLE 5. GENERAL PROVISIONS
5.1 Limitations on Recourse. Notwithstanding anything to the contrary contained in
this Housing Agreement, except in the event of fraud, waste, illegal acts or gross
negligence, or with regard to any indemnity obligations imposed upon Owner under the
terms of this Housing Agreement, (i) Owner shall not have, and no officer or director of
Owner (each, an "Owner Affiliate") shall have any direct, indirect or derivative personal
liability for the obligations of Owner under this Housing Agreement, and (ii) the City shall
not exercise any rights or institute any action against the Owner or any Owner Affiliate
directly, indirectly or derivatively for the payment of any sum of money that is or may
become payable hereunder.
5.2 Maintenance. Repair, Alterations. Owner shall maintain and preserve the Project
in good condition and repair and in a prudent and businesslike manner. Owner shall
comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions,
and orders of any governmental authority now or hereafter affecting the conduct or
operation of the Project or of Owner's business on the Project, or any part thereof, or
requiring any alteration or improvement to be made thereon. Owner shall not commit,
suffer, or permit any act to be done in, upon, or to the Project or any part thereof in
violation of any such laws, ordinances, rules, regulations, or orders. Owner hereby
agrees that the City may conduct from time to time through representatives, upon
reasonable notice, on-site inspections and observation of: (i) the maintenance and
repair of the Project, including a review of all maintenance and repair programs and
practices and all reports and records pertaining thereto, including records of
expenditures relating thereto; and (ii) such other facilities, practices, and records of
Owner relating to the Restricted Units of the Project as the City reasonably deems to be
necessary or appropriate in order to monitor Owner's compliance with the provisions of
this Housing Agreement.
5.3 Notice. All notices (other than telephone notices), certificates or other
communications (other than telephone communications) required or permitted
hereunder shall be sufficiently given and shall be deemed given when personally
delivered, when sent by telegram, or when sent by facsimile (if confirmed by sending a
copy of such transmission by mail the same calendar day), or forty-eight (48} hours
following mailing by registered or certified mail, postage prepaid, or twenty-four (24)
hours following transmission of such notice by express mail, Federal Express or similar
commercial carrier, addressed as follows:
If to the City:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
Attn: Janet Moore, Housing Administrator
Fax: (760) 341-6372
8emard Investment�Hous�ng Agr�ement 09 August 2007.DOC 1� P6a02-0001�988220v2.doc
If to the Owner:
Bernard Investment Group
3991 Mac Arthur Blvd, Suite 350
New Port Beach, CA 92660
Attn: Ken Bernard
Fax:
5.4 Relationshiq of Parties. Nothing contained in this Housing Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner or the Owner's agents,
employees or contractors, and the Owner shall at all times be deemed an independent
contractor and shall be wholly responsible for the manner in which it or its agents, or
both, operate the Project and perform the services required of it by the terms of this
Housing Agreement. The Owner has and hereby retains the right to exercise full control
of employment, direction, compensation and discharge of all persons assisting in the
performance of services hereunder. In regards to the on-site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its
employees, including compliance with Social Security, withholding and all other laws
and regulations governing such matters. The Owner agrees to be solely responsible for
its own acts and those of its agents and employees.
5.5 No Claims. Nothing contained in this Housing Agreement shall create or justify
any claim against the Ciry by any person the Owner may have employed or with whom
the Owner may have contracted relative to the purchase of materials, supplies or
equipment, or the furnishing or the performance of any work or services with respect to
the operation of the Project.
5.6 Conflict of Interests. No member, official or employee of the City shall make any
decision relating to this Housing Agreement which affects his or her personal interests
or the interests of any corporation, partnership or association in which he or she is
directly or indirectly interested. No officer or employee of the Owner shall acquire any
interest in conflict with or inimical to the interests of the City.
5.7 No Personal Liabilitv of City or AQencv Officials, Emplovees and Aqents. No
member, official, employee or agent of the City or Agency shall be personally liable to
the Owner, or its successors-in-interest, for any damages, claims, liabilities or costs
incurred by the Owner, or its successors-in-interest, and arising from any event of
default or breach by the City or Agency (in the event the City's obligations are delegated
to the Agency as provided in Section 5.17.3 below) under this Housing Agreement.
5.8 Unavailable Delav; Extension of Time of Performance. The failure of timely
performance by either party hereunder shall not be deemed to be a default when it is
due to an "Unavoidable Delay." "Unavoidable Delay' means a delay due to the
elements (including unseasonable weather), fire, earthquakes or other acts of God,
strikes, labor disputes, lockouts, shortages of construction materials experienced
Bernartl Investment-Hwsing Agreement 09 August 2007 pOC �1 P64p2-pOp1�988720v2 doc
generally in the construction industry in the local area, acts of the public enemy, riots,
insurrections or governmental regulation of the sale or transportation of materials,
supply or labor.
5.9 Title of Parts and Sections. Any titles of the parts, sections or subsections of this
Housing Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
5.10 Hold Harmless. Owner shall indemnify, defend, protect, and hold harmless the
City, the Agency, and their respective agents, employees, officers, directors and council
members, from and against all losses, liabilities, claims, damages, penalties, fines,
forfeitures, costs and expenses (including all reasonable out-of-pocket litigation costs
and reasonable attorney's fees) and demands of any nature whatsoever arising directly
or indirectly from the Owner's ownership or operation of the Project, or the Owner's
performance of its obligations under this Housing Agreement. The indemnification
obligations of the Owner contained in this Section 5.10 shall survive the termination of
this Housing Agreement.
5.11 Ri�hts and Remedies Cumulative. The rights and remedies of the parties are
cumulative, and the exercise or failure to exercise one or more of such rights or
remedies by either party shall not preclude the exercise by it, at the same time or
different times, of any right or remedy for the same default or any other default by the
other party. No waiver of any default or breach by the Owner hereunder shall be
implied from any omission by the Ciry to take action on account of such default if such
default persists or is repeated, and no express waiver shall affect any default other than
the default specified in the waiver, and such wavier shall be operative only for the time
and to the extent therein stated. Waivers of any covenant, term, or condition contained
herein shall not be construed as a waiver of any subsequent breach of the same
covenant, term or condition. The consent or approval by the City to or of any act by the
Owner requiring further consent or approval shall not be deemed to waive or render
unnecessary the consent or approval to or of any subsequent similar act. The exercise
of any right, power, or remedy shall in no event constitute a cure or a waiver of any
default under this Housing Agreement, nor shall it invalidate any act done pursuant to
notice of default, or prejudice the City in the exercise of any right, power, or remedy
hereunder or under any agreements ancillary or related hereto.
5.12 AQplicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Housing Agreement.
5.13 Severabilitv. If any term, provision, covenant or condition of this Housing
Agreement is held in a final disposition by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions shall continue in full force and effect
unless the rights and obligations of the parties have been materially altered or abridged
by such invalidation, voiding or unenforceability.
5.14 LeAal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Housing Agreement, or to collect damages as a result of any
Bemard Investment-Housing Agr�ment 09 Augu512007 DOC �2 P8402�OOp1\gg8220v2 tloc
breach thereof, the party prevailing in any such action shall be entitled to recover
against the party not prevailing all reasonable attorneys' fees and costs incurred in such
action (including all legal fees incurred in any appeal or in any action to enforce any
resulting judgment).
5.15 Bindinq Upon Successors. This Housing Agreement shall be binding upon and
inure to the benefit of the heirs, administrators, executors, successors-in-interest and
assigns of each of the parties, and shall run with the title to each and every portion of
the Property and the Project. Any reference in this Housing Agreement to a specifically
named party shall be deemed to apply to any successor, heir, administrator, executor or
assign of such party who has acquired an interest in compliance with the terms hereof
or under law.
5.16 Time of the Essence. In all matters under this Housing Agreement, time is of the
essence.
5.17 A�proval by the Citv.
5.17.1 Any approvals required under this Housing Agreement shall be
made by the City Manager or his or her designee, and shall not be unreasonably
withheld or delayed, except where it is specifically provided that another standard
applies, in which case the specified standard shall apply.
5.17.2 Except as otherwise provided in this Housing Agreement,
whenever this Housing Agreement calls for approval by the Ciry of a proposed
document to be submitted by the Owner, the City shall notify the Owner of approval or
disapproval thereof within ten (10) business days after receipt of the proposed
document, and failure to respond within said ten (10) business day period shall be
deemed a disapproval of such proposed document.
5.17.3 The City shall have the right, in its sole discretion, to delegate its
rights and or obligations under this Agreement, in whole or in part, to the Agency.
5.18 Complete Understandin4 of the Parties. This Housing Agreement and the
attached Exhibits constitute the entire understanding and agreement of the parties with
respect to the matters described herein.
5.19 Burden and Benefit. The City and the Owner do hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and
concern the Project, in that Owner's legal interest in the Project is rendered less
valuable thereby. The City and the Owner hereby declare their understanding and
intent that the covenants, reservations and restrictions set forth herein directly benefit
the Property and the Project (i) by enhancing and increasing the enjoyment and use of
the Project by certain Senior Citizen Low Income Households and Senior Citizen
Moderate Income Households, (ii) by making possible the obtaining of advantageous
financing for the Project, and (iii) by furthering the public purposes advanced by the
City.
Bernar0 Investment-Hous�ng Apreement 09 AuguSt 2007.DOC �.� P6a02-0001\988220v2 doc
5.20 Counterqarts. This Housing Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which shall constitute one and
the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Berna�d Investment-Housing Agreement 09 August 2007 DOC 14 P6402�0001�988220v2 tlac
WHEREFORE, the undersigned has executed this Housing Agreement as of the
date first-above written.
OWNER:
BERNARD INVESTMENT GROUP,
a California Corporation
By:
Name: Ken Bernard
Its: Owner
By:
Name:
Its:
CITY:
CITY OF PALM DESERT,
A municipal corporation
By:
Name:
Its:
ATTEST:
Bemartl Investment�Housing Agr�¢ment 09 Auqust 2007 DOC 15 P6402�0001\988220v2.tloc
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On _, , before me, , a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized
capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
Natary Public in and for the State of California
(SEAL)
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On _, , before me, , a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized
capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for the State of California
(SEAL)
Bernartl Investment-Housmg Agreement 09 August 2007.DOC �6 P6402-0007�988220v2 doc
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On _, , before me, , a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized
capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for the State of California
(SEAL)
Bemartl Investment�Hausing Agreement 09 August 2007 DOC �7 P6402-OOOlU88220v2.tloc
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
[to be added prior to recording]
APN:
Bemard Investment-Housing Agieement 09 Auqust 2007DOC Exhibit A-1 P6402�0001�998220v2.tice
EXHIBIT B
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
[ATTACHED]
Bernard Investment�Hausing Agreement 09 August 2007.DOC Exhibit B-1 asaoz-000i�sea22az aoc
EXHIBIT C
CERTIFICATE OF CONTINUING COMPLIANCE
[ATTACHED]
Bemard Investment-Hws�ng Agreement 09 Aupust 2007 DOC Exhibit C-1 Psaoz•000��988zzov2.oce
��r �� �
CITY OF �nl �l DESERT
I ]3-510 FRED WARING DRIVE
PAL�t �ESERT, CnL�Fotttvu qzibo—z578
TEL: 760 346-06��
Fnx: 760 34i-7oq8
, info�palm-desert.org
PLANNING COMMISSION MEETING
NOTICE OF ACTION
Date: .luly 18, 2007
Ken Bernard
Bernard Investment Group
3991 MacArthur Blvd, Suite 350
Newport Beach, CA 92660
Re: Case No. PP/CUP 07-06 AND DA 07-01, KEN BERNARD, BERNARD
INVESTMENT GROUP, Applicant
The Planning Commission of the City of Palm Desert has considered your request and
taken the following action at its regular meeting of July 17, 2007:
PLANNING COMMISSION APPROVED CASE NO. PP/CUP 07-06 and DA
07-01 BY ADOPTION OF PLANNING COMMISSION RESOLUTION NO.
2449. MOTION CARRIED 5-0.
Any appeal of the above action may be made in writing to the City Clerk, City of Palm
Desert, within fifteen (15) days of the date of the decision.
Lauri Aylaian, Secretary
Palm Desert Planning Commission
/ii
cc: Coachelfa Valley Water District
Public Works Department
Building & Safety Department
Fire Marshal
,.
;�nrm a nna�run
'1 � �..
�-�-� CITY OF PALM DESERT
� � DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: Recommendation to City Council for approval of a precise
plan/conditional use permit and development agreement to construct
a 12-unit senior citizen apartment project located at 73-811 Santa
Rosa Way.
SUBMITTED BY: Tony Bagato
Principal Planner
APPLICANT: Bemard Investment Group/ Ken Bernard
3991 Mac Arthur Blvd, Suite 350
Newport Beach, CA 92660
CASE NOS: PP/CUP 07-06 AND DA 07-01
DATE: July 17, 2007
I. EXECUTIVE SUMMARY:
Approval of staff's recommendation will allow the applicant to utilize the Senior
Housing Overlay provision to construct 12 studio apartments on a vacant parcel
on the south side of Santa Rosa Way. The action by the Planning Commission is
a recommendation to the City Council.
II. BACKGROUND:
A. PROPERTY DESCRIPTION:
The vacant property totaling 22,336 square feet is located on the south
side of Santa Rosa Way approximately 262 feet east of San Pascual. The
parcel is a flag shaped lot, which has 58.5 feet of frontage on Santa Rosa
. � � r
Staff Report
� PP/CUP 07-06 AND DA 07-01
July 17, 2007
Page 2 of 6
Way (north property line) and widens to 111 feet at the south end. The
property is zoned R-2, S.O. (Senior Overlay) and is designated High
Density, 7-18 units per acre in the City's General Plan.
B. ADJACENT ZONING AND LAND USE:
North: R-3, S.O. / apartments
South: R-2, S.O. / parking for a retirement facility
East: R-2, S.O. / apartments
West: R-2, S.O. / single-family residence
C. SENIOR HOUSING OVERLAY DISTRICT:
The Senior Overlay District (Municipal Code Section 25.52, attached),
allows a density bonus for the number of units based on a people per acre
basis. This property totaling 22,260 square feet (.511 acres) is permitted
up to 15.33 people. The number of units is then determined by the unit
sizes proposed. For example, the code allows 1.25 people per studio unit,
which allows for a maximum of 12 studio units. In addition to density, the
Senior Overlay District allows parking reductions based on age. The
parking requirement is 1.25 spaces for projects restricted to 55 years old
and 1 space per unit for projects restricted to 62 years old.
To grant the density bonus and parking reduction, a portion of the project
shall be reserved and made affordable to low and moderate-income
residents. For projects between ten and ninety-nine units, ten percent of
the units shall be affordable by lower-income residents and ten percent by
moderate-income residents.
D. PP/CUP 01-23 AND DA 02-01:
On March 14, 2002, the City Council approved a precise plan/conditional
use and development agreement for a 12-unit senior citizen apartment
located at this property. On April 17, 2003, the Planning Commission
granted a one-year time extension of the project. No other time extensions
were filed and the project entitlement expired after April of 2004.
In 2006, the property was sold to the current applicant. In April, Mr.
Bernard met with City staff to discuss his development options. After
several discussions, Mr. Bernard purchased the design rights to the
previous approval with the intent of constructing the 12 senior units. Staff
determined that the previous project would have to be approved, as a new
G�Plann�ng\Tony Bagato�Wora F�les�ormats\StaHreports\PP�PP CUP 07-06 DA 07-Ot.eoc
. . ( �.
Staff Report
� PP/CUP 07-06 AND DA 07-01
July 17, 2007
Page 3 of 6
project since the previous property owner did not execute the
development agreement and did not file any other time extensions beyond
2004.
The current application is very similar to the project that was approved in
2002, except for minor site plan changes and a revised development
agreement that is consistent with cur�ent housing law standards and the
Redevelopment Agency.
II. PROJECT DESCRIPTION:
The applicant is requesting approval of a 12-unit senior complex with 16 parking
spaces and outdoor amenities. The project includes a draft development
agreement that will be executed by the applicant to comply with the affordability
requirement of the Senior Housing Overlay District.
A. SITE PLAN:
The site plan is designed with one (1) driveway located on Santa Rosa
Way. The driveway leads to 12 covered parking spaces on the northeast
property line and four (4) visitor parking spaces parallei to the driveway on
the northwest property line. The 12 units are located on the south end of the
property. The project is designed with two (2) buildings totaling six (6) units
each. The six (6) units are located on either side of a common landscape
area, water feature and a covered patio area with a BBQ stand. All of the
units will face the common area of the project. A 6-foot high block wall and
metal steel gate will be instafled 25 feet from the curb on Santa Rosa Way.
B. UNIT DESCRIPTION:
All units are studio size totaling 625 square feet. Each floor plan includes a
great room, kitchen, bathroom, bedroom and walk-in closets. The second
floor units are designed with entry patios that lead to a stairway at each end
of the finro (2) buildings.
C. ARCHITECTURE:
The buildings are finro-stories, 24 feet tall. The design includes tile roof,
recessed windows, verticaf columns, and earthtone stucco colors. On
February 12, 2002, the Architectural Review Commission granted
preliminary approval of the proposed building design. The construction
GWiannmg�Tony Baqato\Watl Fdes�Formats�SlaHrepons\PPtPP CUP 07-06 OA 07�Ot.doc
. . � - �
Staff Report
� PP/CUP 07-06 AND DA 07-01
July 17, 2007
Page4of6
preliminary approval of the proposed building design. The construction
drawings will be presented to the Architectural Review Commission for a
final approval to make sure they are consistent with the preliminary
approval.
III. ANALYSIS:
The following table compares the development standards of the zone with the
proposed project.
STANDARD R2, SO REQUIREMENTS PROJECT
Number of Units 12 Studio Units 12 Studio Units
Minimum Unit Size 450 square feet 625 square feet
Building Coverage 50% 20%
Building Height 24 feet 24 feet
Open Space 300 square feet/du 800 feet/ du
Front Yard Setback 15 feet 155 feet
Rear Yard Setback 20 feet 21 feet
Side Yard Setbacks 14 feet combined / min of 5 feet 7 feet/ 7 feet
Parking 12 16
The proposed project complies with all the development standards of the zone
and complies with all the development standards of the Senior Housing Overlay
zone. The Planning Commission and City Council previously approved this
design in 2002. The new development agreement is consistent with current
housing laws and the Redevelopment Agency.
FINDINGS FOR APPROVAL OF A PRECISE PLAN / CONDITIONAL USE
PERMIT:
A. The proposed location of the precise plan / conditional use is in accord
with the objectives of the Zoning Ordinance and the purpose of the district
in which the site is located.
Response:
The property has been zoned Senior Overlay (S.O.) for many years. The
project complies with all provisions of the base zone (R-2) and the
G.�Piann�ng�Tony Bagato�WorC Fdes�Formats�StaHreports�PP�PP CUP 07•O6 DA 07-01 doc
. . � �
Staff Report
� PP/CUP 07-06 AND DA 07-01
July 17, 2007
Page 5 of 6
provisions of the Senior Overfay. The project is in accord with the
objectives of the Zoning Ordinance.
B. The proposed location of the precise plan / conditional use and the
conditions under which it will be operated and maintained will not be
detrimental to the public health, safety or general welfare, or be materially
injurious to properties or improvements in the vicinity.
Response:
The project will be a new development in an older area of the community
and as such may lead to other properties upgrading. The project wi11 not
be detrimental to the public health, safety or general welfare, or be
materially injurious to properties or improvements in the vicinity.
C. The proposed precise plan / conditional use will comply with each of the
applicable provisions of this title, except for approved variances or
adjustments.
Response:
The property is located in the Senior Housing Overlay District (S.O.) and
the project complies with all provisions of the base zone (R-2) and the
provisions of the Senior Overlay. The project is in accord with the
objectives of the Zoning Ordinance.
D. The proposed precise plan / conditional use complies with the goals,
objectives, and policies of the city's adopted General Plan.
Response:
The project is consistent with the adopted General Plan.
IV. ENVIRONMENTAL REVIEW:
The project is a Class 32, Categorical Exemption for the purpose of CEQA and
no further review is necessary.
G.�Pianning�7ony Bagato�Word Fdes�Formats\StaHreports�PPWP CUP 07-06 DA 07�01 doc
. � �- r
Staff Report `
� PP/CUP 07-06 AND DA 07-01
July 17, 2007
Page 6 of 6
V. RECOMMENDATION:
That Planning Commission adopt Resolution No. recommending to the
City Council approval of Case Nos. PP/CUP 07-06 and DA 07-01, subject to
conditions.
VI. ATTACHMENTS:
A. Draft Resolution
B. Legal Notice
C. Draft Development Agreement Exhibit A
D. Plans and Exhibits
Submitted By:
�7 �
TONY BA ATO
Principal Planner
Approval:
�
LAUR AYL I
Director o Commun' evelopment
H ER CR
ACM, Develo ent Services
G�.�Piannmg\7ony Bagalo�Word Fde5lFormats�Stattreports�PP�PP CUP 07-06 DA 07-Ot.aoc
( (.
PLANNING COMMISSION RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF PALM DESERT, CALIFORNIA,
RECOMMENDING TO THE CITY COUNCIL APPROVAL
OF A PRECISE PLAN / CONDITIONAL USE PERMIT AND
DEVELOPMENT AGREEMENT TO CONSTRUCT A 12-
UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE
SOUTH SIDE OF SANTA ROSA WAY, APPROXIMATELY
262 FEET EAST OF SAN PASCUAL AVENUE.
CASE NOS. PP/CUP 07-06 AND DA 07-01
WHEREAS, the Planning Commission of the City of Palm Desert, Califo�nia, did
on the 17�' of July, 2007, hold a duly noticed public hearing to consider the request of
Bernard Investment Group / Ken Bernard for the above mentioned project; and
WHEREAS, said application has complied with the requirements of the "City of
Palm Desert Procedure for Implementation of the California Environmental Quality Act,
Resolution No. 06-78," in that the Director of Community Development has determined
that the project is a Class 32 categorical exemption; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all interested persons desiring to be heard, said Planning
Commission did find the following facts and reasons to exist to justify recommending
approval of said precise plan / conditional use permit and development agreement:
1. The proposed location of the precise plan / conditional use is in accord
with the objectives of the Zoning Ordinance and the purpose of the district
in which the site is located.
2. The proposed location of the precise plan / conditional use and the
conditions under which it will be operated and maintained will not be
detrimental to the public health, safety or general welfare, or be materially
injurious to properties or improvements in the vicinity.
3. The proposed precise plan / conditional use will comply with each of the
applicable provisions of this title.
4. The proposed precise plan / conditional use complies with the goals,
objectives, and policies of the city's adopted General 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 commission in this case.
PLANNING COMMiSS1t�N RESOLUTION NO. �
2. That approval of Precise Plan / Conditional Use Permit 07-06 and
Development Agreement 07-01, Exhibit A, are hereby recommended to
the City Council, subject to the attached conditions.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert
Planning Commission, held on this 17�' day of July, 2007, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
SONIA M. CAMPBELL, Chairperson
ATTEST:
LAURI AYLAIAN, Secretary
Palm Desert Planning Commission
2
�� (
PLANNING COMMISSION RESOLUTION NO.
CONDITIONS OF APPROVAL
CASE NO. PP/CUP 07-06
Deaartment of Communitv Develoament:
1. The development of the property shaN conform substantially with exhibits on file
with the department of communiry development/planning, as modified by the
following conditions.
2. Construction of a portion of said project shall commence within one year from the
date of final approval unless an extension of time is granted; otherwise said
approval shall become null, void and of no effect whatsoever.
3. The development of the property described herein shall be subject to the
restrictions and limitations set forth herein which are in addition to all municipal
ordinances and state and federal statutes now in force, or which hereafter may
be in force.
4. Prior to issuance of a building permit for construction of any use contemplated by
this approval, the applicant shall first obtain permits and/or clearance from the
following agencies:
Coachella Valley Water District
Palm Desert Architectural Commission
City Fire Marshal
Public Works Department
Evidence of said permit or clearance from the above agencies shall be presented
to the department of building and safety at the time of issuance of a building
permit for the use contemplated herewith.
5. Access to trash/service areas shall be placed so as not to conflict with parking
areas. Said placement shall be approved by applicable trash company and
Department of Community Development and shall include a recycling program.
6. Project is subject to Art in Public Places program per Palm Desert Municipal
Code Chapter 4.10. Method of compliance shall be established prior to
completion of the Architectural Review Commission process.
7 Applicant agrees to maintain the landscaping required to be installed pursuant to
these conditions. Applicant will enter into an agreement to maintain said
landscaping for the life of the project, which agreement shall be notarized and
which agreement shall be recorded. It is the specific intent of the parties that this
condition and agreement run with the land and bind successors and assigns.
The final landscape plan shall include a long-term maintenance program
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PLANNING COMMISSIUN RESOLUTION NO. (
CONDITIONS OF APPROVAL
CASE NO. PP/CUP 07-06
Deaartment of Communitv Development:
1. The development of the property shall conform substantially with exhibits on file
with the department of community developmendplanning, as modified by the
following conditions.
2. Construction of a portion of said project shall commence within one year from the
date of final approval unless an extension of time is granted; otherwise said
approval shall become null, void and of no effect whatsoever.
3. The development of the property described herein shall be subject to the
restrictions and limitations set forth herein which are in addition to all municipal
ordinances and state and federal statutes now in force, or which hereafter may
be in force.
4. Prior to issuance of a building permit for construction of any use contemplated by
this approval, the applicant shall first obtain permits and/or clearance from the
following agencies:
Coachella Valley Water District
Palm Desert Architectural Commission
City Fire Marshal
Public Works Department
Evidence of said permit or clearance from the above agencies shall be presented
to the department of building and safety at the time of issuance of a building
permit for the use contemplated herewith.
5. Access to trash/service areas shall be placed so as not to conflict with parking
areas. Said placement shall be approved by applicable trash company and
Department of Community Development and shall include a recycling program.
6. Project is subject to Art in Public Places program per Palm Desert Municipal
Code Chapter 4.10. Method of compliance shall be established prior to
completion of the Architectural Review Commission process.
7 Applicant agrees to maintain the landscaping required to be installed pursuant to
these conditions. Applicant will enter into an agreement to maintain said
landscaping for the life of the project, which agreement shall be notarized and
which agreement shall be recorded. lt 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
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PLANNING COMMISSIdN RESOLUTION NO.
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 materiats. All to be consistent with the Property
Maintenance Ordinance (Ordinance No. 801) and the approved landscape plan.
8. Applicant shall execute and obtain approval of the City Council of the attached
development agreement prior to obtaining a building permit for the project.
Deaartment of Public Works:
1. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal
Code and Palm Desert Ordinance Number 653, shall be paid prior to issuance of
a grading permit.
2. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17
and 79-55, shall be paid prior to issuance of a grading permit.
3. 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 shall be reviewed and approved by the Director of Public
Works and a surety posted to guarantee the installation of all required offsite
improvements prior to issuance of a grading permit. "As-built" plans shall be
submitted to, and approved by, the Director of Public Works prior to the
acceptance of the improvements by the City.
4. Ali private driveways and parking areas shall be inspected by the engineering
department and a standard inspection fee paid prior to the issuance of a grading
permit.
5. Landscaping maintenance on Santa Rosa Way shall be the responsibility of the
property owner.
6. In accordance with Palm Desert Municipal Code Chapter 27, complete grading
plans and specifications shall be submitted to the Director of Public Works for
checking and approval prior to the issuance of any permits associated with this
project.
7. Size, number and location of driveways shall be to the specifications of the
Department of Public Works with one 24' wide driveway approach to be allowed
to serve this property.
8. Any and all offsite improvements shal! be preceded by the approval of plans by
the Director of Public Works and the issuance of valid encroachment permits by
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PLANNING COMMISSIGN RESOLUTION NO. �
the Department of Public Works. Trash enclosure doors shall be located so as to
not block sidewalks.
9. 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 the grading permit.
10. Proposed building pad elevations are subject to review and modification in
accordance with Section 27 of the Palm Desert Municipal Code.
11. Applicant shall comply with the provisions of Palm Desert Municipal Code
Section 24.12, Fugitive Dust (PM10) Control.
12. The applicant shall record a 4-foot wide easement along the front property line
for pedestrian access. The length of the easement shall be reviewed and
approved by the Department of Public Works City Engineer.
Riverside Countv Flre Department:
1. With respect to the conditions of approval regarding the above referenced
project, the Fire Department recommends the following fire protection measures
be provided in accordance with City Municipal Codes, NFPA, UFC and UBC, or
any recognized fire protection standards.
The Fire Department is required to set a minimum fire flow for the remodel or
construction of all buildings per UFC article 87.
2. A fire flow of 1500 gpm for a 1-hour duration at 20 psi residual pressure must be
available before any combustible material is placed on the job site.
3. Provide or show there exists a water system capable of providing a gpm fire flow
of 2500 gpm for multifamily dwellings.
4. The required fire flow shall be available from a wet barrel Super Hydrant(s) 4"x2-
1/2"x2-1/2", located not less than 25' nor more than 165 feet from any portion of
a multifamily dwelling measured via vehicular travelway.
5. Water plans must be approved by the Fire Marshal and include verification that
the water system will produce the required fire flow.
6. Install a complete NFPA 13 fire sprinkler system. This applies to all buildings with
a 3000 square foot total cumulative floor area. The Fire Marshal shall approve
the locations of all post indicator valves and fire department connections. All
valves and connections shall not be less than 25' from the building and within 50'
of an approved hydrant. Exempted are one and two family dwellings. (13 R and
attic protector)
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PLANNING COMMISSION RESOLUTION NO.
7. All valves controlling the water supply for automatic sprinkler systems and water-
flow switches shall be monitored and alarmed per UBC Chapter 9.
8. Install a fire alarm system as required by the UBC Chapter 3.
9. Install portable fire extinguishers per NFPA 10, but not less than one 2A10BC
extinguisher per 3000 square feet and not over 75' walking distance. A AK� type
fire extinguisher is required in all commercial kitchens.
10. 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 not be
less 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.
11. 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 vertica! clearance of 13'6".
12. All buildings shall have illuminated addresses of a size approved by the city.
13. All fire sprinkler systems, fixed fire suppression systems and alarm plans must be
submitted separately to the Fire Marshal for approval prior to construction.
14. Conditions subject to change with adoption of new codes, ordinances, laws or
when building permits are not obtained within 12 months.
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PLANNING COMMISSIt�N RESOLUTION NO. (
EXHIBIT A
RECORDING REQUESTED BY, AND EXEMPT FROM FILING FEE
WHEN RECORDED, MAIL TO: PURSUANT TO GOVT. CODE §6103
City Clerk's Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
---------------------------------------------------------------------------------------------------------------------
(Space above for Recorder's use Only)
DEVELOPMENT AGREEMENT
Between
THE CITY OF PALM DESERT, CALIFORNIA
and
CALIFORNIA GOLD PROPERTIES, INC.
a California Corporation
Dated: , 2007
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PLANNING COMMISSIt�N RESOLUTION NO.
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered
into as of this day of , 2007, 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 Caiifornia Gold Properties, Inc., a California Corporation
("Developer"), with reference to the following facts, understandings and intentions of the
parties:
RECiTALS
A. These Recitals refer to and utilize certain capitalized terms, which are
defined in this Agreement. The parties intend to refer to those definitions in conjunction
with the use thereof in these Recitals.
B. Government Code Sections 65684 through 65869.5 inclusive (the
"Development Agreement Legislation") authorize the City to enter into development
agreements in connection with the development of real property within its jurisdiction.
On August 11, 1983, the City enacted by Ordinance No. 341, as amended on
December 7, 1989 by Ordinance No. 589 (coilectively, the "Development Agreement
Ordinance"), procedures and requirements for the consideration of development
agreements thereunder pursuant to the Development Agreement Legislation.
C. Developer owns or is purchasing certain property in the City of Palm
Desert California (the "Property"), which Property is more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference.
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PLANNING COMMISSIf�N RESOLUTION NO. (
D. Developer intends to use the Property to develop a Project consisting of
low and moderate-income units for residential development and associated amenities
and public improvements.
E. The City has determined that the development of the Project as
contemplated by this Agreement is consistent with and in furtherance of the
development goals, policies, general land uses and development programs of the City
and is consistent with the existing Senior Housing Overlay District.
F. The Developer has applied for precise plan approval pursuant to Chapter
25.52 of the Zoning Ordinance, senior Housing Overlay District which allow for
significant density increases in return for building specialized housing designed and
restricted to residents over age 62 years;
G. Pursuant to City Codes and as a condition of said approval, City has
required that a specified number of units associated with the project be set aside for
lower and moderate income occupants subject to restrictions necessary to insure the
continued occupancy of said units by lower income and moderate senior citizen
households;
H. Developer has been conditionally granted permission by the City to
construct conventional senior housing rental units on the Project by Precise Plan /
Conditional Use Permit No. . Pursuant to a separate agreement, Developer is
required to set aside affordable units for low and moderate income occupants for the
required period of time also set forth in the separate Affordable Housing Agreement.
Said Housing Agreement is an integral part and condition of this Agreement.
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PLANNING COMMISSIUN RESOLUTION NO.
I. By adopting this Agreement, the City Council has elected to exercise
certain governmental powers at the present time rather than deferring such actions until
an undetermined future date and has done so intending to bind the City and the City
Council and intending to limit the City's future exercise of certain governmental powers,
to the extent permitted by law.
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Legislation, and in consideration of the mutual covenants and promises of
the parties herein contained, the parties agree as follows:
i. Deflnitions.
i.i Defined Terms. Each reference in this Agreement to any of the
following terms shall have the meaning set forth below for each such term.
1.2 AQreement. This Development Agreement.
1.3 Buildina Ordlnances. Those building standards, of general and
uniform application throughout the City and not imposed solely with respect to the
Property, in effect from time to time that govern building and construction standards
within the City, including, without limitation, the City's building, plumbing, electrical,
mechanical, grading, sign, and fire codes.
1.4 Citv Council. The legislative body of the City of Palm Desert.
1.5 Effective Date. The date on which the Enacting Ordinance
becomes effective.
1.6 Enactinq Ordinance. Ordinance , enacted by the City
Council on , 2007, approving this Agreement.
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PLANNING COMMISSIt�N RESOLUTION NO. (
1.7 Existinq 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 poticies of the City, governing the development of the Property,
including but not limited to, the permitted uses of land, the density and intensity of use
of land, and the timing of development, all as applicable to the development of the
Property. Specifically, but without limiting the generality of the foregoing, Land Use
Ordinances shall include the City's General Plan, the City's zoning ordinance and the
City's subdivision code, but shall exclude the Building Ordinances.
1.9 Mortqacte. 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 Pro ect. The low and moderate income residential development
and associated amenities, and on-site and off-site improvements, as permitted under
and described in Precise Plan/Conditional Use Permit No. to be constructed
on the Property, as the same may hereafter be further refined, enhanced or modified
pursuant to the provisions of this Agreement and pursuant to the conditions of approval
imposed on any further land use entitlement applications that may be reasonably
required in order to implement the development of the Project.
i.ii Proaertv. The real property and any improvements thereon which
is described in Exhibit "A" to this Agreement.
2. Term; Amendment.
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PLANNING COMMISSI�N RESOLUTION NO.
2.1 Term. The term of this Agreement (the "Term") shall commence on
the Effective Date and shall terminate on the ten (10) year anniversary date of the
Effective Date, unless sooner terminated or extended as hereinafter provided. The term
of this Agreement shall not modify the Terms of any other Agreement dealing with low
and moderate income households.
2.2 Amendment. The parties to this Agreement at their sole discretion
and by their mutual written consent may from time to time amend the provisions and
terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or
the Exhibits hereto as provided herein shall be effected only upon compliance with the
procedures for amendment, if any, required by the Development Agreement Legislation
and the Development Agreement Ordinance. The City shall, after any such amendment
takes effect, cause an appropriate notice of such amendment to be recorded in the
official records of the County of Riverside.
3. General Develoament of the Proiect.
3.1 Pro ect.
The Project is described in the Precise Plan/Conditional Use Permit No. as the
same may be modified by a separate Affordable Housing Agreement with the City which
is an integral part hereof.
During the Term hereof, Developer shall have the vested right to develop the Project in
accordance with, and development of the Project shall be governed by, the approvals
given by Precise Plan/Conditional Use Permit No. as modified by any other
agreement for affordable housing and the Existing Land Use Ordinances. Developer's
right to develop the Property in accordance with this Section 3.1 shall remain subject to:
12
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PLANNING COMMISSIt�N RESOLUTION NO. �
(i) all ordinances, regulations, rules, laws, plans, policies, and
guidelines of the City and its City Council, Planning Commission, and all other City
boards, commissions, and contained within the Existing Land Use Ordinances;
(ii) all amendments or modifications to Existing Land Use Ordinances
after the Effective Date of this Agreement and all ordinances, reguiations, rules, laws,
plans, policies, and guidelines of the City and its City Council, Planning Commission,
and all other City boards, commissions, and committees enacted or adopted after the
Effective Date of this Agreement (collectively, "New Laws"), except such New Laws
which would prevent or materially impair Developer's ability to develop the Project in
accordance with the Development Plan unless such New Laws are (A) adopted by the
City on a City-wide basis and applied to the Site in a non-discriminatory manner, (B)
required by a non-City entity to be adopted by or applied by the City (or if optional the
failure to adopt or apply such non-City law or regulation would cause City to sustain a
loss of funds or loss of access to funding or other resources), or (C) New Laws the City
reserves the right to apply under this Agreement;
(iii) all subsequent development approvals implementing the Project
and the conditions or approval associated therewith, including but not limited to Project
Tract Maps and building permits,
(iv) the payment of all fees or exactions in the categories and in the
amounts as required at the time such fees are due and payable which may be at the
time of issuance of building permits, or otherwise as specified by applicable law, aw
existing at the time such fees are due and payable, it being understood that this
Agreement shall not prevent the City from establishing any new City fees, including new
13
PLANNING COMMISSION RESOLUTION NO. (
development impact fees, or increasing any existing City fees, and to apply such new or
increased fees to the Project or applicable portion thereof;
(v) the reservation or dedication of land for public purposes or payment
of fees in lieu thereof as required at the time such reservations or dedications or
payments in lieu are required under applicable law to be made or paid;
(vi) Building, electrical, mechanical, fire and similar building codes
based upon uniform codes adopted in, or incorporated by reference into, the Palm
Desert Municipal Code, as existing on the Effective Date of this Agreement or as may
be enacted or amended thereafter, applied to the Project in a nondiscriminatory
manner.
Notwithstanding any condition setting forth the earlier expiration of any of the Tentative
Maps, each of the Tentative Maps shall remain effective for the Term of this Agreement
unless modified with the concurrence of Developer, its successors or assigns.
3.2 Prolect Timin4; Construction Entitlement. The parties
acknowiedge 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
14
PLANNING COMMISSIGN RESOLUTION NO. (
certificates and other land use and development entitlements for its use at any time
provided that such application is made in accordance with the Development Plan and
this Agreement.
Notwithstanding any provisions to the contrary in this Agreement or the Existing
Land Use Ordinances, Developer shall have the right, but not the obligation, to construct
not less than
the maximum number of square feet of gross floor area or dwelling units of any
permitted use under the Agreement given.
3.3 Buildinq Permits and Other Auprovals and Permits. Subject to
(a) Developer's (or its assignee's) compliance with this Agreement, the Existing Land
Use Ordinances and the Building Ordinances, and (b) payment of the usual and
customary fees and charges of general application charged for the processing of such
applications, permits and certificates and for any utility connection, or similar fees and
charges of general application, the City shall process and issue to Developer or its
assignee promptly upon application therefor all necessary use permits, building permits,
occupancy certificates, and other required permits for the construction, use and
occupancy of the Project, or any portion thereof, as applied for, including connection to
all utility systems under the City's jurisdiction and control (to the extent that such
connections are physically feasible and that such utility systems are capable of
adequately servicing the Project).
3.4 Procedures and Standards. The standards for granting or
withholding permits or approvals required hereunder in connection with the
development of the Project shall be governed as provided herein by the standards, terms
15
PLANNING COMMISS�LnI RESOLUTION NO. �
and conditions of this Agreement and the Development Plan, and to the extent not
inconsistent therewith, the Existing Land Use Ordinances, but the procedures for
processing applications for such permits or approvals (including the usual and
customary fees of general application charged for such processing) shall be governed
by such ordinances and regulations as may then be applicable and which are consistent
with the Agreements
3.5 Effects of Aqreement. This Agreement shall constitute a part of
the Enacting Ordinance, as if incorporated by reference therein in fult. The parties
acknowledge that this Agreement is intended to grant Developer the right to develop the
Project pursuant to specified and known criteria and rules as set forth in the
Development Plan and the Existing Land Use Ordinances, and to grant the City and the
residents of the City certain benefits which they otherwise would not receive.
This Agreement shall be binding upon the City and its successors in accordance
with and subject to its terms and conditions notwithstanding any subsequent action of
the City, whether taken by ordinance or resolution of the City Council, by referenda,
initiative, or otherwise. The parties acknowledge and agree that by entering into this
Agreement and relying thereupon, the Developer has obtained, subject to the terms and
conditions of this Agreement, a vested right to proceed with its development of the
Project in accordance with the proposed uses of the Property, the density and intensity
of development of the Property and the requirements and guidelines for the construction
or provision of on-site and off-site improvements as set forth in the Plan and the Existing
Land Use Ordinances, and the timing provisions of Section 3.2, and the City has
entered into this Agreement in order to secure the public benefits conferred upon it
16
PLANNING COMMISSIUN RESOLUTION NO. (
hereunder which are essential to alleviate current and potential problems in the City and
to protect public health, safety and welfare of the City and its residents, and this
Agreement is an essential element in the achievement of those goals.
3.6 Oaeratlnq Memoranda. Developer and City acknowledge that
the provisions of this Agreement require a close degree of cooperation befinreen
Developer and City, and that refinements and further development of the Project may
demonstrate that changes or additional provisions are appropriate with respect to the
details of performance of the parties under this Agreement in order to effectuate the
purpose of this Agreement and the intent of the parties with respect thereto. If and when,
from time to time, the parties find that such changes or additional provisions are necessary
or appropriate, and subject to the provisions of the next succeeding sentence, they shall
effectuate such changes or provide for such additional provisions through operating
memoranda to be approved in good faith by the parties, which, after execution, shall be
attached hereto as addenda and become a part hereof, and may be further changed or
supplemented from time to time as necessary, with further good faith approval of
Developer and City. Upon receipt by the City of an opinion of the City Attorney to the
effect that the subject matter of such operating memoranda does not require the
amendment of this Agreement in the manner provided in Section 65868 of the California
Government Code, then no such operating memoranda shall require prior notice or
hearing, or constitute an amendment to this Agreement; and in the case of the Ciry, 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
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PLANNING COMMISSIi�N RESOLUTION NO. (
to enter into any such operating memoranda shall not affect or abrogate any of the
rights, duties or obligations of the parties hereunder or the provisions of this Agreement.
4. Pertodic Review of Comaliance. In accordance with Govt. Code Section
65865.1, the City Council shall review this Agreement at least each calendar year
during the term of this Agreement. At such periodic reviews, Developer must
demonstrate its good faith compliance with the terms of this Agreement. Developer
agrees to furnish such evidence of good faith compliance as the Cit, and after
reasonable exercise of its discretion and after reasonable notice to Developer, may
require.
5. Permitted Delays; Suaersedure bv Subseauent Laws.
5.1 Permitted Delays. In addition to any other provisions of this
Agreement with respect to delay, Developer and City shall be excused from
performance of their obligations hereunder during any period of delay caused by acts
of mother nature, civil commotion, riots, strikes, picketing, or other labor disputes,
shortage of materiais 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 cornpetent jurisdiction, or any other cause
18
PLANNING COMMISS UN RESOLUTION NO. �
similar or dissimilar to the foregoing beyond the reasonable control of City or
Developer, as applicable. Each party shall promptly notify the other party of any delay
hereunder as soon as possible after the same has been ascertained. The time of
performance of such obligations shall be extended by the period of any delay
hereunder.
5.2 Supercedure of SubseQuent Laws or Judicial Action. The
provisions of this Agreement shall, to the extent feasible, be modified or suspended as
may be necessary to comply with any new Law or decision issued by a court of
competent jurisdiction (a "Decision"), enacted or made after the Effective Date which
prevents or precludes compliance with one or more provisions of this Agreement.
Promptly after enactment of any such new Law, or issuance of such Decision, the
parties shall meet and confer in good faith to determine the feasibility of any such
modification or suspension based on the effect such modification or suspension would
have on the purposes and intent of this Agreement. In addition, Developer and City
shall have the right to challenge the new Law or the Decision preventing compliance with
the terms of this Agreement. In the event that such challenge is successful, this
Agreement shall remain unmodified and in full force and effect, except that the Term
shall be extended, in accordance with Section 5.1 above, for a period of time equal
to the length of time the challenge was pursued.
6. Events of Default: Remedies; Termination.
6.1 Events of Default. Subject to any extensions of time by mutual
consent in writing, and subject to the provisions of Section 5 above regarding permitted
delays, the failure of either party to perform any material term or provision of this
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PLANNING COMMISSIVN RESOLUTION NO. (
Agreement shall constitute an event of default hereunder ("Event of Default") if such
defaulting party does not cure such failure within ninety (90) days following receipt of
written notice of default from the other party; provided, however, that if the nature of the
default is such that it cannot be cured within such ninety (90) day period, the
commencement of the cure within such ninety (90) day period and the diligent
prosecution to completion of the cure shall be deemed to be a cure within such period.
Any notice of default given hereunder shall specify in detail the nature of the alleged
Event of Default and the manner, if any, in which such Event of Default may be
satisfactorily cured in accordance with the terms and conditions of this Agreement.
During the time periods herein specified for cure of a failure of performance, the party
charged therewith shall not be considered to be in default for purposes of termination of
this Agreement, institution of legal proceedings with respect thereto, or issuance of any
permit, map, certificate of occupancy, approval or entitlement with respect to the
Project.
6.2 Remedles. Upon the occurrence of an Event of Default, the
nondefaulting party shall have such rights and remedies against the defaulting party as
it may have at law or in equity, including, but not limited to, the right to damages and the
right to terminate this Agreement or seek mandamus, specific performance, injunctive or
declaratory relief. Notwithstanding the foregoing and except as otherwise provided in
Section 6.1 hereof, if either Developer or City elects to terminate this Agreement as a
result of the occurrence of an Event of Default, such proceeding of termination shall
constitute such party's exclusive and sole remedy, and with respect to such election and
20
PLANNING COMMISSh.�� RESOLUTION NO. �
City and Developer hereby waive, release and relinquish any other right or remedy
otherwise available under this Agreement or at law or equity.
6.3 Waiver: Remedies Cumulative. Failure by a party to insist upon
the strict performance of any of the provisions of this Agreement by the other party shall
not constitute waiver of such party's right to demand strict compliance by such other
party in the future. All waivers must be in writing to be effective or binding upon the
waiving party, and no waiver shall be implied from any omission by a party to take any
action with respect to such Event of Default. No express written waiver of any Event of
Default shall affect any other Event of Default, or cover any other period of time
specified in such express waiver.
6.4 Effect of Terminatlon. Termination of this Agreement by one
party due to the other party's default, or as a result of the exercise of the right of
termination provided to the Developer under Section 6.2 hereof, shall not affect any
right or duty emanating from any approvals, permits, certificates or other entitlements
with respect to the Property or the Project which were issued, approved or provided by
the City prior to the date of termination of this Agreement. If City terminates this
Agreement because of developer's default, then City shall retain any and all benefits,
including money, land or improvements conveyed to or received by the City prior to the
date of termination of this agreement, subject to any reimbursement obligations of the
City. If developer terminates this agreement because of City's default, or as a result of
the exercise of the right of termination provided to the developer under section 6.2
hereof, then developer shall be entitled to all of the benefits arising out of, or approvals,
permits, certificates or other entitlements on account of, any exactions paid, given or
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PLANNING COMMISS�t�N RESOLUTION NO.
dedicated to, or received by, City prior to the date of termination of this Agreement.
Except as otherwise provided in this section 6.2, all of the rights, duties and obligations
of the parties hereunder shall otherwise cease as of the date of the termination of this
Agreement.
If this agreement is terminated pursuant to any provision hereof, then the City
shall, after such action takes effect, cause an appropriate notice of such action to be
recorded in the official records of the county of riverside. The cost of such recordation
shall be borne by the party causing such action.
6.5 Thlyd _Partv Actions. Any court action or proceeding brought by
any third party to challenge this agreement or any permit or approval required from City
or any other governmental entity for development or construction of all or any portion of
the project, whether or not developer is a party defendant to or real party defendant in
interest in such action or proceeding, shall constitute a permitted delay under section
5.1.
7. Encumbrances on Propertv.
7.1 Discretion to Encumber. The parties hereto agree that
this Agreement shall not prevent or limit Developer, in any manner, at Developer's
sole discretion, from encumbering the Property or any portion thereof or any
improvements thereon with any mortgage, deed of trust or other security device
("Mortgage") securing financing with respect to the Property. The City acknowledges
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
22
PLANNING COMMISS LN RESOLUTION NO. �
modification. City further agrees that it will not unreasonably withhold its consent to any
such requested modification. Any Mortgage on the Property shall include appropriate
provisions for the partial release of said Mortgage to assure that Developer can
convey to the City, free and clear of encumbrances, any portions of the Property
which Developer is conditioned to convey or has otherwise agreed to convey to
the City or its designee.
7.2 Morts�a4e Protection. This Agreement shall be superior and
senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage
made in good faith and for value, and any acquisition or acceptance of title or any right
or interest in or with respect to the Site or any portion thereof by a Mortgagee
(whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure
or otherwise) shall be subject to all of the terms and conditions of this Agreement.
7.3 MortaaQee Not Obliqated. Notwithstanding the provisions of
Section 7.2, no Mortgagee will have any obligation or duty under this Agreement to
perform the obligations of Developer or other affirmative covenants of Developer
hereunder, or to guarantee such performance, except that to the extent that any covenant
to be performed by Developer is a condition to the performance of a covenant by City,
the performance thereof shall continue to be a condition precedent to City's
performance hereunder.
7.4 Estoapel Certiflcates. Either party may, at any time, and from
time to time, deliver written notice to the other party requesting such party to certify in
writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and
23
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PLANNING COMMISSIi�N RESOLUTION NO. '
effect and a binding obligation of the parties, (ii) this Agreement has not been amended
or modified, or if so amended or modified, identifying such amendments or
modifications, and (iii) the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, describing therein the nature and
amount of any such defaults. A party receiving a request hereunder shall execute and
return such certificate within thirty (30) days following the receipt thereof. City
acknowledges that a certificate hereunder may be relied upon by transferees,
assignees and lessees of the Developer and the holders of any Mortgage.
8. Transfers and Assictnments; Effect of Aqreement on Title.
8.1 Riqhts and Interests Apaurtenant. 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
foreciosure 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
24
PLANNING COMMISStt�nl RESOLUTION NO. (
terms of this Agreement to the same extent as if the purchaser, transferee or assignee
were Developer hereunder.
8.2 Covenants Run with Land.
(i) All of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding upon the parties
and their respective heirs, successors (by merger, consolidation, or otherwise) and
assigns, devisees, lessees, and all other persons acquiring any rights or interests in the
Property, or any portion thereof, whether by operation of laws or in any manner
whatsoever, and shall inure to the benefit of the parties and their respective heirs,
successors (by merger, consolidation or otherwise) and assigns;
(ii) All of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to
applicable law;
(iii) Each covenant to do or refrain from doing some act on the Property
hereunder (A) is for the benefit of and is a burden upon every portion of the Property,
(B) runs with such lands, and (C) is binding upon each party and each successive
owner during its ownership of the Property or any portions thereof, and shall benefit
each party and its lands hereunder, and each such other person or entity succeeding to
an interest in such lands.
9. Notices. Any notice to either party shalf be in writing and given by
delivering the same to such party in person or by sending the same by registered or
certified mail, return receipt requested, with postage prepaid, to the following addresses:
If to City:
25
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PLANNING COMMISSIdN RESOLUTION NO.
City Clerk of Palm Desert
73-510 Fred Waring drive
Palm Desert, California 92260
If to Developer:
California Gold Properties, Inc.
Attention:
Either party may change its mailing address at any time by giving written notice
of such change to the other party in the manner provided herein. All notices under this
agreement shall be deemed given, received, made or communicated on the date
personal delivery is effected or, if mailed, on the delivery date or attempted delivery date
shown on the return receipt.
10. Indemnificatlon: Developer's Obliqation.
10.1 Develoaer's Wron�t-Doinq. 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 of developer.
10.2 Environmental Assurances. Developer shall indemnify and hold
the indemnified parties free and harmless from any liability deriving from the City's
26
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PLANNING COMMISSIUN RESOLUTION NO. �
execution or performance of this agreement, based or asserted, upon any act or
omission of developer, its officers, agents, employees, contractors, subcontractors and
independent contractors for any violation of any federal, state or local law, ordinance or
regulation relating to hazardous or toxic materials, industrial hygiene, or environmental
conditions created by developer or its officers, agents or employees, contractors,
subcontractors and independent contractors after the effective date and developer shall
defend, at its expense, including attorneys fees, the indemnified parties in any action
based or asserted upon any such alleged act or omission.
10.3 Challenqes to AQreement. Developer agrees and shall indemnify,
hold harmless and defend the indemnified parties from any challenge to the validity of
this Agreement, or to the City's implementations of its rights under this agreement.
10.4 Defense bv Counsel Chosen bv Citv. In the event the
indemnified parties are made a party to any action, lawsuit other adversarial proceeding
in any way involving claims arising from this Agreement or Project, developer shall
provide a defense to the indemnified parties, with counsel reasonably acceptable to
City. Developer shall be obligated to promptly pay all costs of defense, including all
reasonable attorneys' fees, and any final judgment or portion thereof rendered against
the indemnified parties.
10.5 Non-liabilitv of Citv Officers and Emalovees. No official, officer,
employee, agent, or representative of the City, acting in his/her official capacity, shall be
personally liable to developer, or any successor or assign, for any loss, cost, damages,
claim, liability or judgment arising out of or in connection to this agreement, or for any
act or omission on the part of the City.
27
PLANNING COMMISSIUN RESOLUTION NO. �'
10.6 Survival. The provisions of these sections 10.1, 10.2, 10.3 and
10.4 shall survive the termination or expiration of this agreement.
ii. Miscellaneous.
ii.i Relatlonshia of Partles. It is understood that the Project is a
private development, that neither party is acting as the agent of the other in any respect
hereunder, and that each party is an independent contractor. It is further understood
that none of the terms or provisions of this agreement are intended to or shall be
deemed to create a partnership, joint venture or joint enterprise between the parties
hereto.
11.2 Consents. Unless otherwise herein provided, whenever approval,
consent, acceptance or satisfaction (collectively, a "consent") is required of a party
pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless
provision is otherwise specified in this Agreement or otherwise required by law for a
specific time period, consent shall be deemed given within thirty (30) days after receipt
of the written request for consent, and if a party shall neither approve nor disapprove
within such thirty (30) day period, or other time period as may be specified in this
Agreement or otherwise required by laver for consent, that party shall then be deemed
to have given its consent. If a party shall disapprove, the reasons therefor shall be
stated in reasonable detail in writing. This section does not apply to development
approvals by the City.
11.3 Not a Public Dedication. Except as otherwise expressly provided
herein, nothing herein contained shall be deemed to be a gift or dedication of the
Property, or of the project or any portion thereof, to the general public, for the general
28
PLANNING COMMISSION RESOLUTION NO. (
public, or for any public use or purpose whatsoever, it being the intention and
understanding of the parties that this Agreement be strictly limited to and for the
purposes herein expressed for the development of the Project as private property.
11.4 Severabilitv. If any term, provision covenant or condition of this
Agreement shall be determined invalid, void or unenforceable by judgment or court
order, the remainder of this Agreement shall remain in full force and effect, unless
enforcement of this Agreement as so invalidated would be unreasonable or grossly
inequitable under all the relevant circumstances or would frustrate the purposes of this
Agreement.
11.5 Exhibits. The exhibits listed in the Table of Contents, to which
reference is made herein, are deemed incorporated into this Agreement in their entirety
by reference thereto.
11.6 Entire Aqreement. 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.
11.7 Governinq Law; Construction of Aqreement. This Agreement,
and the rights and obligations of the parties, shall be governed by and interpreted in
accordance with the laws of the State of California. The provisions of this Agreement
and the Exhibits hereto shall be construed as a whole according to their common
meaning and not strictly for or against any party and consistent with the provisions
29
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PLANNING COMMISSION RESOLUTION NO.
hereof, in order to achieve the objectives and purposes of the parties hereunder. The
captions preceding the text of each Section, subsection and the Table of Contents
hereof are included only for convenience of reference and shall be disregarded in the
construction and interpretation of this Agreement. Wherever required by the context,
the singular shall include the plural and vice versa, and the masculine gender shall
include the feminine or neuter genders, or vice versa.
11.8 Siqnature Paqes. For convenience, the signatures of the parties
of this Agreement may be executed and acknowledged on separate pages which, when
attached to this Agreement, shall constitute this as one complete agreement.
11.9 Time. Time is of the essence of this Agreement and of each and
every term and condition hereof.
11.10 Prevailina Partv's Attornev's Fees and Costs. If any party to this
Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises
with respect to the meaning or interpretation of any provision hereof or the performance
of the obligations of any party hereto, the defaulting party or the party not prevailing in
such dispute, as the case may be, shall promptly pay any and all costs and expenses
(including without limitation, all court costs and reasonable attorneys' fees and
expenses) incurred by the other party with respect to such to such dispute or in
enforcing or establishing its rights hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above-written.
DEVELOPER:
CALIFORNIA GOLD PROPERTIES, INC.
A California Corporation
30
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PLANNING COMMISSICGN RESOLUTION NO. �
ey:
By:
cirY:
CITY OF PALM DESERT, CALIFORNIA, a
municipal corporation organized and existing
under the laws of the State of California
By:
Richard S. Kelly, Mayor
Attest:
Rachelle D. Klassen, City Clerk
31
, t 5 � /.
l �.
PLANNING COMMISSION RESOLUTION NO.
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , 2007, 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
32
, :� � ,
, PLANNING COMMISSIUN RESOLUTION NO. �
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[to be attached prior to recording]
33
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. �� f1Y Of Pfll �l DES �„ t
7;-5io F��W��uNc D�uvE
PALM DESERT,C�uFoaNi�qs�6o—z578
reu 760 ;�6—o6u
F,vc:760 34�-7oq8
��fa�p+l m-de�ert.o r6
CITY OF PALM DESERT
LEGAL NOTICE
CASE NO. PP/CUP 07-06 AND DA 07-01
NOTICE IS HEREBY GIVEN that a public hearing wili be held before the Palm Desert
Planning Commission to consider a request by Bemard Investment Group, Inc. for
approval of a precise plan of design, conditional use permit and development agreement
to construct a 12-unit senior citizen apartment project located at 73-811 Santa Rosa Way.
C of Pdm D�R M
IREO MMRM1 OR fltl0 WARN6 DR
JANTA ROtA YY4Y � �
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SAID public hearing will be held on Tuesday, July 17, 2007, at 6:00 p.m. in the Council
Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert,
Califomia, at which time and place al{ interested persons are invited to attend and be
heard. Written comments conceming all items covered by this public hearing notice shall
be accepted up to the date of the hearing. InfoRnadon conceming the proposed project
and/or negative deGaration is available for review in the Department of Community
Development at the above address between the hours of 8:00 a.m. and 5:00 p.m.
Monday through Friday. If you challenge the proposed actions in court, you may be
limited to raising only those issues you or someone else raised at the public hearing
described in this notice, or in written coRespondence delivered to the Planning
Commission(or cfty council)at,or prior to,the public hearing.
PUBLISH: Desert Sun �auri Aylaian, Secretary
July 7,2007 Palm Desert Planning Commission
23s�.010
. �p�� due o�4�ased cppo�t�uvity Qot aommo�vpao spsos
• a�d t�plmoio�e�Cieacya aI sda
SRdI01t HOUS�G OVi�iAY D18'i'��C'!
Le�t�a 2.49 aaa 30 P/A
S�eei�e Z3 00 9.9�aaa 40 P/A
=s� r��b���� io.aa+ �so r/w
2'�i.10� D�.w�k�ts��e�a�� ��iP��o�s�bsdividedi�ootw�o.�a
re�o�da�iacatioac SRy-Ara minimum a�d s�ny-
25.:�2.�1� l�epaw, n�o �im�no. Dns �o pa� acoi�►it� lavvb ot s�e
'L�s pacpow d tbs �eaior h� o�l�► (SO) ���P/A shaR be reduoed by
di�t�t h�pc+vd�t optioa�l�asd�oeadva ���Allo�wabis uoit �ea s6si1 ra�► ao-
� t�dar�fopmest d a wids.adsq af�dalt�od
6�0�de�rd aod r�i�ad m�a we�t� �m p�eaos a�s6�eaa ol a aomm�aa p�oje�t
s�s dS!lrQw.Wh�eo�ewt t�s 90 hn bees a�dded�s d��Vq.B�himitstiaRaontsinldE�Laniodudea�
ba�a mo�.t6s appiica�t ms�►�Loow w�atbet a�nss tbs two bu�o�.av��amqh�e�es.sint.ao�n�
optioa�l SO �td�td� a t6�s sta�da=ds ot t6�s ba� sp�oe asd soo�s�e.
ma�e.(Ord.�33�Z(P�art�198�
VYtl�Co■�t�Dlafa� WitrorR
�S..�I.O�f dia pdr�itba b!soP��d P�'�d� � 360 �.SO
pi�s t�d ooaatd�l pt p�k. fJae be��oom S00 600
�P�bf aPP�'a'�R�Pw+�nd coo�
ditioaal n�s p�mit sbaLl bs r�ida�tial tet3remant de- 'I�►o be��000 700 800
ve�opomp aom�tio�oi atta�d�ed ot dsacbed�Eoc
cent oc�ale aod wociaoed rea+estioaal faalitb�aad C Hd�t sad Setbacb.Adjaceat oo R-2 and R-3
�i �i �i� � mPP�� �i'�m�• zoaes. tlre hei�t taorictfoa a�sodated arith ttiosa
��f���li��OaO��' mnessbaUapply. ,
r�itp tfood serrioa aad hsalth atn.(Otd�33�2(patt). �jaoes�t w R 1 mna. tbe follo�vi�s aetbach aad
l� hei�ht limitstiw�hall tPPh�
�'�'� ���' Mid�so Setb�et Hei=6t
Dcyelopmeat atat�rd�s6a11 be ne�able to insu�
eIISdeat the pWu�iai�ad nei�hborhood oompsn'b�7Itp ZO' 18'
aad to teGect t6�s naiqttie requ�tam�aa af�eai�ati- SO' 22'
� 120' 24'
A. DemitY aad Iateasity.Due tv smallcr wait nnd
�otaehoW�za.P�J��+h���P��)� � Tha plaaain� commissioa and archit,xtu�al com-
be dete�mined bp mten�iry(per�od Per aae).s�e and msssioa:haU p�ry spedal amntios to seocnd-storp�vin-
�°��' do*►s tadai the rear yards of R-1 propertia to iasure
�u P�1�P�P+�tion s1�a11 be calalated ao-
oocdin�oo the 6ollowins bctfles: prn�
D. Aaeaa�b�7iry.
SNdio unit 12S person:per uait 1. All seaood-sto:y tmits shall be setved b�► efeva-
tors.
One bedioom 1.75 pa�wm per uait 2 ,�Il ooeoman uess shall be wheekbsir aooestibk
Tlv�o bedroom Z00 pe�sona per unit 3. Handicapped uait desi�n shall meet requin-
menss tor state �tle 24 haadicapped-sooes� ro�ula-
Ia�en�iry shall be equat to populationJ��oes airea, tioat
'[be m�dmum iatemirystullvary�rithptoject sita area. E Pukin�Requirement
Ptojats on luger sita�vill be allo�red�ter iatensiry
412
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��.
r Ap�� . 2.25 per n�it �+alk�wd by�O ar t5s deosit�dia�ed by tbe b�s
� A�6Z dai� L00 p�s mit �oas.'I�appiie�at�1nD bs:aspoo�bis t�a propodaj
. tre�stbod�10�eiiw�eM peo�a�.w�iei ssp
� ��P�i���a�tba baodo�aod the
. �o����������Q� deQ°°ai add[tiooal rnioes peanrided'Itie plaonia�
_ �w� �� � �`� � � oa�mi�■io��haII ti�ne�ttp jt rav�a�d a�
4��d P�'���it q�t bs dem- ����� Defia�d
C ����,��,.�.� ��,,,��.��.���,,,�t�
_ °°m'�iri°`mq:e�oe teqvi�ea�aot�.?S�as pa med[m I�oos�1a�ar iecoa�e,a�9►rm+oent a[me-
mit i[�t bo�dt�or asd demoa�rs�the�e�i- �a�d�modesst�.aaA h+ua�+edpeeeanta[medm a�
� b�o[ooa�oa at�ddte�oa�l:p��oes. �6�awe o�eba heat US.Depasm�est atHausiio�aad
�. At�ondsb�iq A�� � �7 Uebaa as�ms�w�or t5e
� pe+o}�t with oee a��on d�elli�amis a�ll bs rn- ' 8��ac aa otbec ma�s�pecidc I3LJD asa
� Mewd tod asds a�oe�dabl��o�ow aad modents-io- mt�es tot seoior ot�ea�.
oo�ce�idena.Pi�proj�eta batws�a�ea aod� � p�� � oadar t�b ieatjoa mu�t be
- aio�s vo�its.ba peraat ot tbs mies�all bs a�oedable ard �ole� � Msior dtJtee �omion� � special
� �1�oo�e re+�idems aod tia pe[oeat b�asod� aPP�v���bf�7�
- P�ojeets �t� ooe��mdced or mas m�s thaII be L �P'��•�s a ooa�tjoa d a�pswat.wb-
s+eqoie�od m pe�arWs aa addFtjooal�pe�Yat al�osd- mtt�ma�sosbo�d m�e�ct�io�maint�noe
� abie blveq low�l000�e e�sidaaor.�he total aamber o[ 1�a p�iod ai tims�addacoacy oo t�e dr�.(Ord 433;
th�s ooatroUed n�es�aot esoeed tas ad�ttio�al Z��'i�
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