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HomeMy WebLinkAboutOrd 1141A and Res 07-61A DA 07-01 & PP/CUP 07-06 - Bernard Invstmnt GrpREGULAR MEETING OF THE PALM DESERT CITY COUNCIL SEPTEMBER 13, 2007 The following public hearing item was continued from the meeting of August 9, 2007. Substantial changes occurred to the project since that meeting, leading staff to re - advertise the item for public hearing in its amended form on September 13, 2007, which appears as Public Hearing Item B on this Agenda. Therefore, please refer to the Public Hearing B staff report for current status. XVII. PUBLIC HEARINGS A. REQUEST 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, AND APPROVAL OF THE HOUSING AGREEMENT RELATED THERETO Case Nos. DA 07-01 and PP/CUP 07-06 (Bernard Investment Group / Ken Bernard, Applicant) (Continued from the meeting of August 9, 2007). Rec: 1) Waive further reading and pass Ordinance No. 1141 to second reading, approving Development Agreement No. 07-01. 2) Waive further reading and adopt Resolution No. 07-61, approving Precise Plan/Conditional Use Permit No. 07-06, subject to the attached conditions. 3) By Minute Motion, approve the Housing Agreement, substantially as to form, authorize the City Manager to finalize the agreement and the Mayor to execute same. Action: r , CITY OF PALM DESERT a.2 DEPARTMENT OF COMMUNt • t� Ark.";:� STAFF REPORT�aD�°E ,' :; 9 3`''°:••' is i_ ;)NTiNUED TO [ SSED TO 2ND READING `' 07 REQUEST: Approval of a precise plan/conditional use permit and development agreement to construct a 14-unit senior citizen apartment project located at 73-811 Santa Rosa Way. Approval of the housing agreement substantially as to form and authorization of the City Manager to finalize the agreement and the Mayor to execute same. SUBMITTED BY: Tony Bagato Principal Planner APPLICANT: Bernard Investment Group / Ken Bernard 3991 Mac Arthur Boulevard, Suite 350 Newport Beach, CA 92660 CASE NOS: DA 07-01, PP/CUP 07-06, and related Housing Agreement DATE: August 9, 2007 CONTENTS: Recommendation Draft Ordinance No. 11414 Exhibit A Development Agreement 07-01 Draft Resolution No. 07-61A Housing Agreement City Council Staff Report dated August 9, 2007 Planning Commission Staff Report, dated July 17, 2007 Site Plan Recommendation: That the City Council: 1 . Pass Ordinance No. 1141A to second reading approving Development Agreement 07-01; 2. Adopt Resolution No. 07-61Aapproving Precise Plan / Conditional Use Permit 07-06, subject to conditions attached thereto; and Staff Report Case Nos. DA 07-01, PP/CUP 07-06 and related Housing Agreement Page 2 September 13, 2007 3. Approve the Housing Agreement substantially as to form and authorize the City Manager to finalize the Agreement and the Mayor to execute same. Executive Summary: Approval of the staff recommendation will allow the construction of a 14-unit senior rental project on an infill lot in the Palma Village area. This project was continued from the August 9 Council meeting in order to allow the developer and staff to incorporate a higher level of accessibility for all units in the complex to better serve the senior citizens who will live there. The revised plan presented with this staff report increases the number of units from 12 to 14, which bolsters the economics of the project sufficiently to allow the developer to provide elevators to access all second floor units. Background: In 2007, the Bernard Investment Group purchased the plans and design for a two- story 12-unit senior citizen complex on Santa Rosa Way from the previous owner who had completed the design for the site, but had stopped short of getting the project fully entitled. The architecture for the project was approved by the Architectural Review Commission on February 12, 2002, and the Planning Commission unanimously recommended approval of the project and the Development Agreement for the 12 units on July 17, 2007. However, when the project was presented to the City Council on August 9, 2007, Council members expressed concern regarding the accessibility of the units on the second floor. They were particularly concerned because the project is planned for senior residents 62 years old and older. Council continued consideration of this project in order to allow the developer and staff to investigate other site configurations that would provide all units at ground level or provide elevator access to all units above ground level. Staff has met with the developer to study alternative layouts for the site that would place all 12 units at ground level. However, the irregular configuration of the flag- shaped lot and the desire to provide pleasantly landscaped open space as part of the development precludes a one-story project configuration. Additionally, with only 12 units in the project, the cost of providing elevator access to the second floor burdens the proposed project to the point where it is no longer economically viable for the developer. Working collaboratively with the developer, the project is able to be modified to meet both the concerns expressed by the members of the City Council and the economic objectives of the developer. The modifications necessary will construct a W orddocs/tm/citycou ncilstaffreports/pp07-06citycouncilstaffreport Staff Report Case Nos. DA 07-01, PP/CUP 07-06 and related Housing Agreement Page 3 September 13, 2007 7th two-apartment module on the site and a centrally located elevator that will serve all second floor apartment units. The revised configuration is able to be accomplished while still respecting the development standards for the R-2 zone requirements for setbacks, building coverage, building height, open space, and parking. Analysis: The following table compares the development standards of the zone with the proposed project as revised to include 14 units. STANDARD ' R-2, S.O. REQUIREMENTS PROJECT I Number of Units 12 Studio 14 studio Min. Unit Size 450 square feet 625 square feet Building Coverage 50% 20.33% Building Height 24 feet 24 feet Open Space 300 sq.ft. / dwelling unit 573 sq.ft. / dwelling unit Front Yard Setback 15 feet 167.5 feet Rear Yard Setback 20 feet 20 feet Side Yard Setbacks 14 feet combined / min. of 5 feet 7 feet and 7 feet Parking 12 stalls 16 stalls The proposed project as revised complies with all the development standards for the R- 2 zone and provides two more dwelling units than would be provided for with a strict application of the senior housing overlay. The findings required for approval of a Precise Plan and Conditional Use Permit are unchanged from those presented in the August 9, 2007 staff report attached. The Housing Agreement for the revised project has been modified to reflect that 14 rather than 12 units will be provided. Resolution No. 07-61 has been similarly revised and legal notice of the revised project has been posted and advertised in the Desert Sun as is required. W orddocs/tm/citycou ncilstaffreports/pp07-06citycouncilstaffreport Staff Report Case Nos. DA 07-01, PP/CUP 07-06 and related Housing Agreement Page 4 September 13, 2007 Staff recommends approval of the project as revised to include 14 studio apartment units and elevator access to the second story. Submitted By: Department Head: ASV/ Tony Ba ato Lauri Aylaian Principal Planner Director of Community Development Approval: �ITY COUNCIVICTION: APPROVED DENIED Omer L. r RECEIVED �d OTHER icenrc�#�i.,t/o. //�/,q �� A6° . .'Vo. 4?-60) ACM for Dr - opment Services MEETIN D.TE 0-e-. AYES: g'^ 6Y1. __/3/15(I)-7 /-ei .yr y and NOES: A lite ABSENT: Oa Carlos L. Ortega ABSTAIN: Ark /r City Manager VERIFIED BY: 2.041Vm original on File w th City Clerk's Of ficE W orddocs/tm/citycouncilstaffreports/pp07-06citycounci Istaffreport ITV Of Pi1L111 DESuuT ..e, 73-510 FRED WARING DRIVE 2PALM DESERT,CALIFORNIA 92260-2578 • `.JP1 TEL:760 346-0611 FAX:760 341-7098 'ri'• infoc?palm-desert.org 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 Bernard Investment Group, Inc. for approval of a Development Agreement, Precise Plan of design, and a Conditional Use Permit to allow the construction a new 14-unit senior citizen apartment project located at 73-811 Santa Rosa Way. City of Palm Desert M FRED WRING DR FRED WARING DR -- — • SANTA ROSA WA Y • r EFF 0 Z � n ID m s 2 N. eZ l it O - e FI a Js CATALINA WAY • r / • SAID public hearing will be held on Thursday September 13, 2007, at 4:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning 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 raising only 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 September 3,2007 Palm Desert City Council ORDINANCE NO. 1141A 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 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. 1141A 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 13th day of September 2007, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: RICHARD KELLY, Mayor ATTEST: RACHELLE KLASSEN, City Clerk City of Palm Desert, California G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC ORDINANCE NO. 1141A 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 BERNARD INVESTMENT GROUP, INC. a California Corporation Dated: , 2007 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 2 ORDINANCE NO. 1141A 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. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 3 ORDINANCE NO. 1141A 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. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 4 ORDINANCE NO. 1141A 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 Agreement. This Development Agreement. 1.3 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 City Council. The legislative body of the City of Palm Desert. 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enacting Ordinance. Ordinance , enacted by the City Council on , 2007, approving this Agreement. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 5 ORDINANCE NO. 1141A 1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall exclude the Building Ordinances. 1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.10 Project. The 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. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 6 ORDINANCE NO. 1141A 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 Project. 3.1 Project. (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. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 7 ORDINANCE NO. 1141A 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, G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 8 ORDINANCE NO. 1141A (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 Project Timing; Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which parts of the Project will be developed. Such decisions depend upon G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 9 ORDINANCE NO. 1141A 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 of square feet of gross floor area or dwelling units of any permitted use under the Agreement given. 3.3 Building 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, G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 10 ORDINANCE NO. 1141A 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 Agreement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 11 ORDINANCE NO. 1141A 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 Operating Memoranda. Developer and City acknowledge that the provisions of this Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under this Agreement in order to effectuate the purpose of this Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 12 ORDINANCE NO. 1141A 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 Compliance. In accordance with Govt. Code Section 65865.1, the City Council shall review this Agreement at least each calendar year during the term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith compliance with the terms of this Agreement. Developer agrees to furnish such evidence of good faith compliance as the Cit, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 5. Permitted Delays; Supersedure by 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 13 ORDINANCE NO. 1141A 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 14 ORDINANCE NO. 1141A 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 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 15 ORDINANCE NO. 1141A 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 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. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 16 ORDINANCE NO. 1141A 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 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. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 17 ORDINANCE NO. 1141A 6.5 Third Party Actions. Any court action or proceeding brought by any third party to challenge this agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the project, whether or not developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under section 5.1 . 7. Encumbrances on Property. 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 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. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 18 ORDINANCE NO. 1141A 7.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 7.3 Mortgagee Not Obligated. 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 19 ORDINANCE NO. 1141A 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 Assignments; Effect of Agreement on Title. 8.1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 20 ORDINANCE NO. 1141A 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 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: G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 21 ORDINANCE NO. 1141A 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 Obligation. 10.1 Developer's Wrong-Doing. Developer will defend, indemnify and hold the City and its elected officials, officers and employees ("indemnified parties") free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of developer to take any action which he is required to take as provided in this Agreement; (iii) any action taken by developer which he prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of developer. G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 22 ORDINANCE NO. 1141A 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 Challenges to Agreement. Developer agrees and shall indemnify, hold harmless and defend the indemnified parties from any challenge to the validity of this Agreement, or to the City's implementations of its rights under this agreement. 10.4 Defense by Counsel Chosen by City. In the event the indemnified parties are made a party to any action, lawsuit other adversarial proceeding in any way involving claims 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-liability of City Officers and Employees. No official, officer, employee, agent, or representative of the City, acting in his/her official capacity, shall be G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 23 ORDINANCE NO. 1141A 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. 11. Miscellaneous. 11.1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 24 ORDINANCE NO. 1141A 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 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 Severability. 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 Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire Agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 25 ORDINANCE NO. 1141A warranties or representations are superseded in total by this Agreement and Exhibits hereto. 11.7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any 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 Signature Pages. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete agreement. 11.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 11.10 Prevailing Party's Attorney's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 26 ORDINANCE NO. 1141A 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 27 ORDINANCE NO. 1141A 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 28 ORDINANCE NO. 1141A EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY [to be attached prior to recording] G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP 07-06 Ken Bernard\City Council DA Ordinance.DOC 29 RESOLUTION NO. 07-61A A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT _ AGREEMENT AND A PRECISE PLAN / CONDITIONAL USE PERMIT TO ALLOW THE CONSTRUCTION OF A 14-UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE SOUTH SIDE OF SANTA ROSA WAY, APPROXIMATELY 262 FEET EAST OF SAN PASCUAL AVENUE. CASE NOS: DA 07-01, PP/CUP 07-06 WHEREAS, the City Council of the City of Palm Desert, California, did on the 9th day of August 2007, which was continued to September 13 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. 07-61A 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 13th day of September, 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. 07-61A CONDITIONS OF APPROVAL CASE NOS. DA 07-01, PP/CUP 07-06 Department of Community Development: 1. The development of the property shall conform substantially with exhibits on file with the department of community 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 specifying among other matters appropriate watering times, fertilization and 3 RESOLUTION NO. 07-61A 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. Department 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. 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 all 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. 07-61A 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 (PM 10) 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 County 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. 07-61A 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 vertical 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. 6 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 SEPTEMBER 13, 2007 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC P6402- 0001\966220v2.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 Income Units 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 Deposits 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 Relationship 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC I P6402- 0001\988220v2.doc 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 City 13 5.18 Complete Understanding of the Parties 13 5.19 Burden and Benefit 13 5.20 Counterparts 14 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC II P6402- 0001\988220v2.doc HOUSING AGREEMENT THIS HOUSING AGREEMENT (the "Housing Agreement") is dated for reference purposes as of September 13, 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 fourteen (14) 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 fourteen (14) 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 1 P6402- 0001\986220v2.doc 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 regulations adopted pursuant to California Health and Safety Code Section 50052.5. "City" shall mean the City of Palm Desert. "Project" is the fourteen (14) 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 Unit" 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 California 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 2 P6402- 0001\988220v2.doc reference and shall not affect the meaning, construction, or effect of the provisions hereof. ARTICLE 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 Property. 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 Eligibility 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 applicant's current employer; Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 3 P6402- 0001\988220v2.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 Participation 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 City Option to Subsidize Senior Citizen Low Income Households. The City 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 4 P6402- 0001\988220v2.doc 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 Occupying 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 5 P6402- 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 Security Deposits. 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 City. The City 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 Specific Enforcement of Affordability 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. Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 6 P6402- 0001\988220v2.doc 2.11 City 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 Unit") 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 City'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 Agent. 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 City 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 Housing 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 Agreement to Record. Owner hereby consents to the recordation by the City of this Housing Agreement in the real property records of Riverside County. 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 7 P6402- 0001\988220v2.doc 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 Default" 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 City 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 City, 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 ninety (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 13 September 2007 with Exhibits B and C.DOC 8 P6402- 0001\988220v2.doc 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 City, 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 Remedy 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. Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 9 P6402- 0001\988220v2.doc 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 10 P6402- 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 Relationship 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 City 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 Liability of City or Agency Officials, Employees and Agents. 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 Delay; 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 1 1 P6402- 0001\988220v2.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 Rights 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 City 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 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Housing Agreement. 5.13 Severability. 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 Legal 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 Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 1 2 P6402- 0001\988220v2.doc 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 Binding 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 Approval by the City. 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 City 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 Understanding 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. Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 13 P6402- 0001\988220v2.doc 5.20 Counterparts. 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] Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 14 P6402- 0001\988220v2.doc 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: Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 1 5 P6402- 0001\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) 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) Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 1 6 P6402- 0001\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) Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC 1 7 P6402- 0001\988220v2.doc EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY [to be added prior to recording] APN: Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC Exhibit A-1 P6402- 0001\988220v2.doc EXHIBIT B CERTIFICATION OF HOUSEHOLD ELIGIBILITY CERTIFICATION OF HOUSEHOLD ELIGIBILITY REPORT DATE / / FOR YEAR ENDING: PROJECT NAME ADERESS TOTAL If OF UNITS DATE PROJECT PLACED IN SERVICE / / B AFFORDABLE UNITS REQUIRED: PROJECT OWNER(OR MANAGEMENT AGENT) Jnll1 a TENANT :MOVNN 1ROF ':SO FOOT HSE HUD- SPECIAL MOVE-IN OR•MOVE-IN RECERT GROSS MAX ANN % ;M'AIE•OUT'UDDTV-. GROSS TENANT RENT NAME DATE ' BD PER UNIT SIZE ; NEEDS ROD ANN INCOME.%OF AM DATES ANN INCOME HH INCOME OF AM DATE ,ALLOW: RENT RENT SUBSIDY 111 (2) (3) (4) 15) - (6) (7) (6) O) (10) (11) 1121 (13) (14) (15) (16) (171 1161 • • I I • 1 I FORM PREPARED BY: PHONE*: Rev 7.21 o7 PAGE A Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC Exhibit B-1 P6402- 0001\988220v2.doc EXHIBIT C CERTIFICATE OF CONTINUING COMPLIANCE OWNER'S CERTIFICATE OF CONTINUING COMPLIANCE To: City of Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert,CA 92260 Attn: Director of Housing Certification Dates: From: To: Project Name: Project Number: Project Address: Tax Id#of Ownership Entity: The undersigned on behalf of ('the Owner",hereby certifies that: ^i No buildings have been Placed in Service Other 1. The project meets the minimum requirements of: c 2. There has been change/no change for any building in the project: C' NO CHANGE [_i CHANGE If"Change,"please list: 3. The owner has received annual Tenant Income Certification from all low-income households and documentation to support that certification. • YES n NO 4. All low-income units in the project have been rent-restricted under the terms of Agreement No.: ✓ YES ❑ NO 5. All low-income units in the project have been and are being for used by the general public on a non-transient basis: L YES ❑ NO 6. No finding of discrimination under the Fair Housing Act,42 U.S.0 3601-3619, has occurred for this project. A finding of discrimination includes an adverse final decision by the Secretary of Housing and Urban Development(HUD), 24CFR 180.680,an adverse final decision by a substantially equivalent state or local fair housing agency,42 U.S.0 3616a(a)(1), or and adverse judgment from a federal court: Li YES 0 NO List Finding if occurred: Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC Exhibit C-1 P6402- 0001\988220v2.doc 7. Each building and low-income unit in the project is and has been suitable for occupancy,taking into account local health, safety,and building codes(or other habitability standards),and the state or local government unit responsible for making building code inspections did not issue a report of a violation for any building or low-income unit in the project: • YES ❑ NO If"No"state nature of violation: Attach a copy of the violation report as required by 26 CFR 1.42-and any documentation of correction. 6. All tenant facilities, such as swimming pools, other recreational facilities, parking areas, washer/dryer hookups, and appliances were provided on a comparable basis,without charge,to all tenants in the buildings: • YES iii NO 9. If any of the low-income units in the project has been vacant during the year,reasonable attempts were or are being made to rent that unit or the next available unit of comparable size to households having a qualifying income before any units were or will be rented to tenants not having a qualifying income: ❑ YES ❑ NO 10. If the income of a household of a low-income unit in any building increased above the qualifying limit allowed by the Agreement NO. ,the next available unit of comparable size in that building was or will be rented to tenants having a qualifying income: C' YES r:a NO 11. There has been change I no change in the ownership or management of the project: • NO CHANGE a CHANGE If"Change,"attach a copy detailing information of the changes in ownership or management of the project. Note:Failure to complete this form in its entiretywill result in non-compliance with program requirements. In addition,any individual other than an owner or general partner of project is not permitted to sign this form. The project is otherwise in compliance with Agreement No. and all other applicable laws, rules and regulations. This Certification and any attachments are made UNDER PENALTY OF PERJURY of the Laws of the State of California. (Ownership Entry) By: Title: Date: Place: "S,oa,me,ds and Sett,ngslsroV,e:NiocalSettnys\Tamponry'ntemel Fins`0iKi7;Owner's Cert,f,eata of Ccnnnung Program -East C.rrpa Bernard Investment-Housing Agreement 13 September 2007 with Exhibits B and C.DOC Exhibit C-2 P6402- 0001\988220v2.doc �•''� •. .`' CITY OF PALM DESERT min _..;:; DEPARTMENT OF COMM- r if ' ; �� h : STAFF R' P NGDATE R- q -d� S'''•°�r�D��o .��''' CONTINUED TO q 5 - 017 =9.,3,,.•'' ❑ PASSED TO 2ND READING 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. 1141 , Exhibit A Development Agreement Draft Resolution No. 07-61 Housing Agreement Planning Commission Staff Report, dated July 17, 2007 Plans and Exhibits RECOMMENDATION: That the City Council pass Ordinance No. 1141 to second reading approving Development Agreement 07-01. That the City Council adopt Resolution No. 0761 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 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, 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.0.) 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 (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. 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: /17 Tony Bagato Lauri Aylaian Principal Planner Director of Community Development Approval: / ! Homer L. Croy U ACM for Development Services Carlos L. Ortega City Manager ._-.-�-�- ................ CITY OF hiffi DESERT F�1$ 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 if TEL: 760 346-0611 H1✓: FAX: 760 341-7098 A �. info@palm-desert.org PLANNING COMMISSION MEETING NOTICE OF ACTION Date: July 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 cc: Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal eMMf(C LM I((`(.EJ?VII .. : CITY OF PALM DESERT '� DEPARTMENT OF COMMUNITY DEVELOPMENT : "Atli !W&. NA .'t " 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: Bernard 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 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:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP CUP 07-06 DA 07-01.doc 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 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 four (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 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 installed 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 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 G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP1PP CUP 07-06 DA 07-01 doc Staff Report PP/CUP 07-06 AND DA 07-01 July 17, 2007 Page 4 of 6 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 I 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:\Planning\Tony Bagato\Word Files\Formats\Stafreports\PP\PP CUP 07-06 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 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 (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\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP CUP 07-06 DA 07-01.doc 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: TONY BA ATO Principal Planner Approval: LAUR AYLAI Director o Communi evelopment HO ER CR ACM, Develo ent Services G:\Planning\Tony Bagato\Word Files\Formats\Staffreports\PP\PP CUP 07-06 DA 07-01.doc 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, California, did on the 17th 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 COMMISSIVN 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 17th 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 COMMISSivnl RESOLUTION NO. CONDITIONS OF APPROVAL CASE NO. PP/CUP 07-06 Department of Community Development: 1 . The development of the property shall conform substantially with exhibits on file with the department of community 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 3 PLANNING COMMISSION RESOLUTION NO. CONDITIONS OF APPROVAL CASE NO. PP/CUP 07-06 Department of Community Development: 1. The development of the property shall conform substantially with exhibits on file with the department of community 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 3 PLANNING COMMISSION 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 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. Department 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. 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 all offsite improvements shall be preceded by the approval of plans by the Director of Public Works and the issuance of valid encroachment permits by 4 PLANNING COMMISSION 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 County 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 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 2A1OBC 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 vertical 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. 6 PLANNING COMMISSiuN 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 7 PLANNING COMMISSivuJ 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 California 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 (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. 8 PLANNING COMMISSIuN 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. 9 PLANNING COMMISSiuN RESOLUTION NO. 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 Agreement. This Development Agreement. 1.3 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 City Council. The legislative body of the City of Palm Desert. 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enacting Ordinance. Ordinance , enacted by the City Council on , 2007, approving this Agreement. 10 PLANNING COMMISSION RESOLUTION NO. 1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall exclude the Building Ordinances. 1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.10 Project. The 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. 2. Term; Amendment. 11 PLANNING COMMISSION 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 Development of the Project. 3.1 Project. 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 PLANNING COMMISSiun1 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, 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, (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 Project Timing; Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which parts of the Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, City expressly agrees that Developer shall be entitled to apply for precise plans, subdivision maps, building permits, occupancy 14 PLANNING COMMISSiuN 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 Building 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 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.vi4 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 Agreement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to 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 Operating Memoranda. Developer and City acknowledge that the provisions of this Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under this Agreement in order to effectuate the purpose of this Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such changes or provide for such additional provisions through operating memoranda to be approved in good faith by the parties, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of the City, such operating memoranda may be approved and executed by its Community Development Director or City Manager without further action of the City Council. Failure of the parties 17 PLANNING COMMISSiuN 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. Periodic Review of Compliance. In accordance with Govt. Code Section 65865.1 , the City Council shall review this Agreement at least each calendar year during the term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith compliance with the terms of this Agreement. Developer agrees to furnish such evidence of good faith compliance as the Cit, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 5. Permitted Delays; Supersedure by 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 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 18 PLANNING COMMISSiuN 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 19 PLANNING COMMISSIuN 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 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 20 PLANNING COMMISSmA 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 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 21 PLANNING COMMISSiuN 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 Third Party Actions. Any court action or proceeding brought by any third party to challenge this agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the project, whether or not developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under section 5.1. 7. Encumbrances on Property. 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 COMMISSION 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 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 7.3 Mortgagee Not Obligated. 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 23 PLANNING COMMISSIUN 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 Assignments; Effect of Agreement on Title. 8.1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the 24 PLANNING COMMISSiLA 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 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: If to City: 25 PLANNING COMMISSION 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. Indemnification: Developer's Obligation. 10.1 Developer's Wrong-Doing. Developer will defend, indemnify and hold the City and its elected officials, officers and employees ("indemnified parties") free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of developer to take any action which he is required to take as provided in this Agreement; (iii) any action taken by developer which he prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission 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 PLANNING COMMISSION 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 Challenges to Agreement. Developer agrees and shall indemnify, hold harmless and defend the indemnified parties from any challenge to the validity of this Agreement, or to the City's implementations of its rights under this agreement. 10.4 Defense by Counsel Chosen by City. In the event the indemnified parties are made a party to any action, lawsuit other adversarial proceeding in any way involving claims 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-liability of City Officers and Employees. 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. 11. Miscellaneous. 11.1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 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 Severability. 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 Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire Agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 11.7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions 29 • 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 Signature Pages. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete agreement. 11.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 11.10 Prevailing Party's Attorney's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in such dispute, as the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court costs and reasonable attorneys' fees and expenses) incurred by the other party with respect to such to such dispute or in enforcing or establishing its rights hereunder. 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 PLANNING COMMISSiurN RESOLUTION NO. 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 31 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 COMMISSION RESOLUTION NO. EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [to be attached prior to recording] 33 bIIV Of PflUfll DES [ I • 73-510 FRED WARING DRIVE ll! PALM DESERT,CALIFORNIA 92260-2578 TEL:760 346-0611 FAX:760 341-7098 + ..: . .i:• in(o@palm-dcscrr.org CITY OF PALM DESERT LEGAL NOTICE CASE NO. PP/CUP 07-06 AND DA 07-01 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by Bernard 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. City of Palm Desert Map rr IL _ 1 FRED HIRING DR FRED WARING DR • SANTA ROSA WAYco D N 5-1FFF Z — s ID co D , 2 y lZ m 8 /n \ �l / CATALINA WRY• r / ,r 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, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning 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 raising only 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 Lauri Aylaian, Secretary July 7,2007 Palm Desert Planning Commission 25.52.010 Chapter 2532 due to increased opportunity for common open space and site planning efficiencies of scale. SENIOR HOUSING OVERLAY DISTRICT Lem than 249 acres 30 P/A Section= 25 to 9.99 acres 40 P/A 2532A10 Purpose. 10 acres+ 50 P/A 25. 2.020 Uses permitted by approved predse plan and conditional use permit. Senior horsing projects shall be divided into two age 2532.936 Development standards. restriction classifications:My-five minimum and sixty. 25.52311 Purpose. two minimum. Due to greater activity levels of age The purpose of the senior housing overlay (SO) fifty-five projects, allowable P/A shall be reduced by district is to provide optional standards and incentives even ve Percent nit Sixes. Allowable unit sizes shall varyno- for the development of a wide variety of specialized housing designed and restricted to residents over the cording to presence or absence of a common Project age of fifty-five.Whenever the SO has been added to a dining fatality.Each unit shall contain kitchen including base zone,the applicant may choose whether to use the two burners,oven,refrigerator/freezer, sink, counter optional SO standards or the standards of the base space and storage. zone.(Ord.433*2(part),1985) With Common Dining Without 2532.020 Uses permitted by approved pradse plan and conditional use permit. Studio 360 450 Uses permitted by approved precise plan and con- One bedroom 500 600 ditional use permit shall be residential retirement de- Two bedroom 700 800 velopmenta consisting of attached or detached units for rent or sale and associated recreational facilities and C. Height and Setbacks.Adjacent to R-2 and R-3 involving varying degrees of support arrangements, zones, the height restriction associated with those ranging from completely independent living to commu- zones shall apply. nity food service and health care.(Ord.433 3 2(part), Adjacent to R-1 zones, the following setback and 1985) height limitation shall apply: 25-52.030 Development standard& Minimum Setback Height Development standards shall be flexible to insure efficient site planning and neighborhood compatibility 20' 18' and to reflect the unique requirements of senior citi- 50' 22' zees. 120' 24' A. Density and Intensity. Due to smaller unit and household sizes, project density(units per acre)shall The planning commiccion and architectural com- bo deed by intensity(persons per sae).age and mission shall pay special attention to second-story win- pro Overall project population shall be calculated ac- ject area. dog facing the rear yards of R-1 properties to insure cording to the following factors: privacy. D. Accessibility. Studio unit 125 1. All second-story units shall be served by eleva- pe per unit tors. One bedroom 1.75 persons per unit 2. All common areas shall be wheelchair accessible. Two bedroom 2.00 persons per unit 3. Handicapped unit design shall meet require- ments for state Title 24 handicapped-access regula- Intensity shall be equal to population/gross area. Lions. The maximum intensity shall vary with project site area. E. Parking Requirement Projects on larger sites will be allowed greater intensity 412 I25_52.030 units allowed by SO or the density allowed by the base Age SS minimum 1.25 per unit zone.The applicant shall be responsible for proposing Age 62 minimum 1.00 per unit the methods to achieve the program goal,which may vary depending upon the nature of the housing and the degree of additional services provided.The planning I Ytejecb which'by theirgn.app design' to age sate- cm:minion shall have flexibility in reviewing and ap- gorier significantly older than age dxty-two may re- proving innovative proposals. quest reduced parking requirements if it can be deco- O. very Low,Lower,Moderate-Income Defined. Lmutated that less demand will be generated.Planning very low income shall be equivalent to fifty peraat of comminion may reduce requirement to.75 spaces per median income;loans income,eighty percent of me- unit if applicant bonds for and demonstrates the feasi- dim and moderate,one hundred percent of median as biity of construction of additional spaces shown on the latest U.S.Department of Housing and F. Affordability Requirements. A portion of any Urban Development estimates for the RiversidelSan pcojeet with tea or more dwelling units shall be re- Bernardino area or on other more specific HUD esti- I served and made affordable to low and moderate-in- mates for senior citizens. name residents.For projects between ten and ninety- H. pmj� app�red under this section must be nine units,ten percent of the units shall be affordable used so>ely for senior citizen housing unless special l by lower-income residents and ten percent by moder- anal granted by city councl ate-income residents. L Applicant shall,as a condition of approval,sub- Projects with one hundred or more units shall be mit a maintenance bond to insure exterior maintenance inquired to provide an additional five percent afford- fora P of time satisfactory to the city.(Ord.433 3 table by very low-income residents.The total number of 2(> z lgg5) these controlled units shall not exceed the additional IL 11 IF 1 I L L • L It 413 1