The URL can be used to link to this page

Home My WebLink AboutOrd 1165 and Res 08-08 DA, PP/CUP 08-50 Bernard Investment Group 08-28-2008 MEETING D14TE—. (� " ��' l._-�g ❑ COM7INUED TO�.,,._�,______ CITY OF PALM DESE T�ASSE�TO 2ND REAOING G • �� " � `.. DEPARTMENT OF COMMUNITY STAFF REPORT REQUEST: Approval of a development agreement, precise plan, and conditional use permit to allow construction of a 20-unit senior citizen apartment project. Subject property is located at 73-582 Catalina Way. APN: 627-111-011 SUBMITTED BY: Kevin Swartz Assistant Planner APPLICANT: Bernard Investment Group/ Ken Bernard 3991 Mac Arthur Blvd, Suite 350 Newport Beach, CA 92660 CASE NOS: DA, PP/CUP 08-50 DATE: August 28, 2008 CONTENTS: Draft Ordinance No. 11�� Draft Resolution No. os-ss Legal Notice Planning Commission Minutes for Case Nos. DA, PP/CUP 08-50 Planning Commission Resolution No. 2479 Planning Commission Staff Report dated July 1, 2008 Comments from other departments ARC Minutes Plans and Exhibits Recommendation: That the City Council waive further reading, and: 1) Pass Ordinance NO. 1165 to second reading approving Development Agreement 08-50. 2) Adopt Resolution No. os-ss approving Precise Plan and Conditional Use Permit 08-50, subject to conditions attached. Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 2 of 9 Executive Summary: Approval of the staff recommendation will approve a development agreement, a precise plan of design, and Conditional Use Permit to allow the applicant to utilize the Senior Housing Overlay provisions of the municipal code to construct 20 studio apartments on an existing parcel on the north side of Catalina Way. Discussion: I. BACKGROUND: A. PROPERTY DESCRIPTION: The project is located at 73-582 Catalina Way, east of San Pablo and west of Portola Avenue. The properly, totaling approximately .81 of an acre, is a relatively flat, rectangular shaped lot and is surrounded by residentially zoned properties. The lot has 114.65 feet of frontage and is 311 feet in length. The applicant is currently in the process of demolishing the existing residential home located on the property. Access is from Catalina Way. B. ZONING AND GENERAL PLAN DESIGNATION: 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. C. ADJACENT ZONING AND LAND USE: North: R-3, S.O. / Single Family South: R-2, S.O. / Single Family East: R-2, S.O. / Catalina Gardens Apartments West: R-3, S.O. / Catalina Palms Apartments D. SENIOR HOUSING OVERLAY DISTRICT: The Senior Overlay District (Municipal Code Section 25.52, allows a density bonus for the number of units based on a person per acre basis. This property, with 35,283 square feet (.81 acres), is permitted up to 24 people per acre. 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 20 studio units. In addition to density, the Senior Overlay District allows parking reductions based on age. The parking G:�PlanningAKevin Swartz\Word�DA,CUP,PP OS-50 CntxlinaVCC report Cat 8-8.doc Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 3 of 9 requirement is 1.25 spaces for projects restricted to 55 years and older and one space per unit for project restricted to 62 years and older. To grant the density bonus and parking reduction, a portion of the project must be reserved and made affordable to low and moderate-income residents. For projects between ten and 99 units, ten percent of the units must be affordable by lower-income residents, and ten percent by moderate-income residents. E. PLANNING COMMISSION: The proposed project was presented to the Planning Commission on July 1, 2008. The Commissioners stated that the proposed project is consistent with the surrounding area and that the architecture will enhance the area; the Commission recommended approval of the project on a 4-0 vote. II. PROJECT DESCRIPTION: The applicant is requesting approval of a 20-unit senior complex. There are two proposed buildings located in the rear of the property totaling 12,500 square feet with ten units per building. Parking for the project is located in the front, with 21 carports covered with alum-wood trellises above. The site also features outdoor amenities. The project includes a development agreement that will be executed by the applicant to comply with the affordability requirements of the Senior Housing Overlay District. A. Site Plan: The site plan is designed with two driveways located on Catalina Way. The main driveway has full egress and ingress with a width of 21 feet. The second driveway is exit only with a width of fourteen feet. Directly in the middle of the proposed driveways is a landscape median approximately 90 feet long with an ADA compliant path of travel that connects to the sidewalk. The main driveway leads to 10 covered parking spaces on the southeast side circling around the landscape median to 11 covered parking spaces that lead to the second driveway. The 20 units are located on the north end of the property. The project is designed with two buildings totaling 10 units each. The 10 units are located on either side of a common landscape area, elevator and stairwell, water feature and a covered patio area with a BBQ stand. Alt of the units C:�Planning\Kevin Swurtz\Word�DA,CUP,PP OR-50 Ca[alina\CC repurt Cat 8-8.doc Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 4 of 9 will face the common area of the project. The property will be surrounded by a six-foot high block wall. B. Building Description: The proposal is for 20 units in two buildings that are two-stories high, measuring 24 feet to the highest point. Roofline heights vary on the buildings and range in height from the predominant building line of 20 feet high. A condition of approval has been placed on the project requiring all roof mounted equipment to be screened from public view. The buildings offer an elevator or stairs to get from the first floor to the second floor. All of the 625 square foot units are studios. Each floor pfan includes a great room, kitchen, bathroom, bedroom and a walk-in closet. The second floqr units are designed with a rail outside of each unit. The buildings consist of a series of defined modulations including multiple planed facades (recessed entries, trellis, and pop-outs), gable roof pitch, and entry ways. This style is not found in the immediate area, but is a style that will enhance the surrounding neighborhood. The buildings' proposed architecture is described in detail in the following section. The project is requiring that all roof mounted equipment to be screened from public view. The building offers residents and visitors either an elevator or stairs to get from the first floor to the second floor. C. Architecture: The project will incorporate a Modern architectural style utilizing concrete tile roof with Belardo blend, earth-toned colors, recessed windows, vertical columns and multiple planed facades (recessed entries and pop-outs). Surface finishes consist of smooth and rough plaster and stucco, stone veneer and river rock earth blend. The exterior paint will be Bauer "Oak Tone" for the main color and Bauer "Bisque" for accent color. The doors and trim will be Sherman Williams "Mesquite". The pavers and stamped concrete for the walkways are "Country Store" and "Oatmeal". At its meeting of May 16, 2008 the Architectural Review Commission (ARC) reviewed the project. The Commission generally supported the concept and offered comments. The Commission granted preliminary approval subject to the submittal of a site plan, materials board, landscape plans, construction plans and clarification of details. The construction G:�Planning\Kevin Swurtz\Word�DA,CUP,PP 08-50 Catalina\CC report Cat 8-8.doc Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 5 of 9 drawings will be presented to the ARC for a final approval to make sure they are consistent with the preliminary approval. The Commission agreed that the project architects have provided a well designed project, and the project was approved on a 5-0-0-1 vote, with Commissioner Hanson absent. D. Landscaping: The landscape palette will focus on a desert theme, with plants requiring minimal water usage. The project exceeds landscape requirements in regards to proposed landscape percentage. Preliminary approval from the City's Landscape Specialist has not been granted at this time. A condition of approval has been placed on the project that all lighting for the facility will be strictly on site and will not intrude onto surrounding properties. Another condition has been placed that the plant selection is in conformance with the City's Landscape Maintenance Guide and recommendations. E. LAND USE COMPATIBILITY: The proposed 20-unit senior complex is located in an R-2, S.O. zone. The Residential Single Family, Senior Overlay zone allows flexibility with a variety of types of dwellings at a medium range of population densities, and also provides optional standards and incentives for the development of a wide variety of specialized housing designed for and restricted to residents over the age of 55. The proposed project is surrounded by residentially zoned properties. To the north and south are existing single family residents, and to the east and west are existing multi-family apartments. This demonstrates that the proposed use is compatible with the other residential uses in the surrounding area. G:�Planning\Kevin Swartz\Wurd�DA,CUP,PP OS-50 Catalina\CC report Cat R-N.doc Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 6 of 9 II1. ANALYSIS: A. Project Data: The following table compares the development standards of the zone with the proposed project. STANDARD R2,SO REQUIREMENTS PROJECT Number of Units 20 Studios 20 studios Minim um Unit Size 450 square feet 625 square feet Building Coverage 50% 19.45% 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 20 feet Side Yard Setbacks 14 feet combined/min. of 5 feet 7'-6", 7'-6" Parking 2� 21 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 development agreement is consistent with current housing laws and requirements of the Redevelopment Agency. B. Findings of Approval for Precise Plan and Conditional Use Permit: 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. The proposed project is zoned R-2, with a Senior Housing Overlay and the districf allows flexibility with a variety of types of dwellings at a medium range of popu/ation densities, and a/so to provide optional standards and incentives for the deve/opment of a wide variety of specia/ized housing designed and restricted to residents over the age of 55. The proposed project is a 20-unit affordab/e, infill senior complex for residents over the age of 55, which is in accord with the objectives of the Zoning Ordinance and is consistent with the uses outlined in section 25.38.030 Conditional uses. G:�Planning\Kevin Swxrtz\Word�DA,CUP,PP OS-50 Cxtalina\CC report Cat R-8.doc � Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 7 of 9 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. The project will be a new development in an older area of the community and as such may /ead to other properties upgrading. The proposed project as conditioned will comply with current building and safety codes, Fire Department regulations, and wil/be reviewed by the City's Engineering Department for compliance with City ordinances. The use of the 20-unit senior complex is permitted within the R-2, Senior Overlay zone subject to a Conditiona/ Use Permit (for the land use) and is consistent with the intent of the City's Zoning Ordinance as described in the staff report. The site meets setbacks, lot coverage, building height, land use, and parking requirements such that it will not be detrimental to the public interest, hea/th, safety, welfare and will not be materially injurious to properties or improvements in the vicinity as described in more detail in the staff report. A condition of approva/ has been p/aced on the project which will require the project proponent to construct all necessary on and off-site infrastructure to provide utilities to the proposed project prior to the issuance of building permits. Water, sanitation and public utilities and services are available in Catalina Way, a public street. 3. The proposed precise plan / conditional use will comply with each of the applicable provisions of this title, except for approved variances or adjustments. The property is /ocated 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. Additionally, conditions have been added to the project to ensure that a/l the minimum requirements of the Palm Desert Municipal Code are met, including Building, Landscaping, Public Works, and the Fire Department conditions. The project requires no variances or adjustments. G:�Plunning\Kevin Swartz\Word�DA,CUP,PP 08-50 Catalina\CC report Cat S-R.doc Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 8 of 9 4. The proposed precise pian / conditional use complies with the goals, objectives, and policies of the City's adopted General Plan. A primary objective stated in the Land Use Element of the General Plan under Residential Goals, Policies and Programs is Goa/ 1, which states a balanced range of housing types, densities and affordability that accommodate existing and future residents across all socio-economic sectors of the community. Po/icy 3 of the General Plan Land Use Element is that the City shall encourage in-fill deve%pment on /ands located adjacent to or near existing residential areas and utilities to maximize the efficient utilization of /and and infrastructure. Policy 8 of the General Plan Land Use E/ement is /ow income/affordable housing shall not be located within one area of the community, but shaU be dispersed where feasible, appropriate, and compatible with surrounding land uses. This project promotes a land use that is consistent with the goa/s, policies, and programs of the General P/an. The project is consistent with the General Plan because the project proposes a 20-unit affordable, infill senior complex, which is compatible with the existing uses within the surrounding area, and offers an excel/ent service to the community. IV. ENVIRONMENTAL REVIEW: The project is a Class 32, Categorical Exemption for the purpose of CEQA and no further review is necessary. G:�Planning\Kevin Swartz\Word�DA,CUP,PP OR-50 Ca[alina\CC report Cat 8-8.doc Staff Report DA, PP/CUP 08-50 August 28, 2008 Page 9 of 9 V. CONCLUSION: The proposed 20-unit senior complex conforms to all zoning regulations. The design and layout of the proposed project will not interfere with the use and enjoyment of the existing neighborhood, because the site is consistent with the other surrounding properties to the north and south is existing single family residential properties, and to the east and west are existing multi-family residential apartments. The architecture is a style that will enhance the surrounding neighborhood. It can be concluded that the proposed use would be a favorable addition to the vicinity. Submitted By: Department Head: ^h�� ✓ Kevin Swartz Lauri laian Assistant Planner Director, Community Development Approv : Homer Cro ACM for ev opm t Services �� . �x-Carlos L. Orte City Manager G:�Planning\Kevin Swartz\Word�DA,COP,PP 08-50 Cutnlina\CC report Cat S-R.doc ORDINANCE N0. ii65 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT AS IT RELATES TO CONSTRUCTION FOR A 20-UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE NORTH SIDE OF CATALINA WAY LOCATED AT 73-582 CATALINA WAY, BETWEEN THE CITY OF PALM DESERT, AND BERNARD INVESTMENT GROUP, ATTACHED AS EXHIBIT A. CASE NO. DA 08-50 WHEREAS, the Planning Commission by its Resolution No. 2479 has recommended approval of said project; and WHEREAS, at said public hearings, said City Council heard and considered all testimony and arguments of all interested persons. WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS FOLLOWS: SECTION 1: That the Development Agreement 08-50 by Ordinance No. is hereby approved. SECTION 2: The City Clerk of the City of Palm Desert, California, shall certify to the passage adoption of this Ordinance and shall cause the same to be published once in the Desert Sun, a newspaper of general circulation, circulated within the City of Palm Desert, and the same be in full force and effect thirty (30) days after its adoption. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert City Council, held on this 28th day of August 2008, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: JEAN M. BENSON, Mayor RACHELLE KLASSEN, City Clerk City of Palm Desert, California G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc ORDINANCE NO. 1165 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: , 2008 G:\Planning\Kevin Swartz\Word�DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 2 ORDINANCE N0. 1165 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of this day of , 2008, 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 there under 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\Kevin Swartz\Word�DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 3 ORDINANCE NO. 1165 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 pubtic 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 al�ow 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. 08-50. 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 atso set forth in the separate Affordable Housing Agreement. Said Housing Agreement is an integral part and condition of this Agreement. G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 4 ORDINANCE NO. .�_ I• By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 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 Apreement. This Development Agreement. 1.3 Buildinq Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 Citv Council. The legislative body of the City of Palm Desert. 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enactinq Ordinance. Ordinance , enacted by the City Council on , 2008, approving this Agreement. G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 5 ORDINANCE NO. 1165 1.7 Existinq Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall exclude the Building Ordinances. 1.9 Mortqaqe. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which atl or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.10 Proiect. The low and moderate income residential development and associated amenities, and on-site and off-site improvements, as permitted under and described in Precise Plan/Conditional Use Permit No. 08-50 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 Propertv. The real property and any improvements thereon which is described in Exhibit "A" to this Agreement. G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 6 ORDINANCE NO. 1165 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 dea�ing with low and moderate income households. 2.2 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as provided herein shall be effected only upon compliance with the procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. 3. General Development of the Proiect 3.1 Proiect• (a) The Project is described in the Precise Plan/Conditional Use Permit No. 08-50 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 sha�l have the vested right to develop the Project in accordance with, and development of the Project shalt be governed by, the approvals given by Precise Plan/Conditional Use Permit No. 08-50 as G:\Planning\Kevin Swartz\Word\DA,CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 7 ORDINANCE NO. 1165 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 (coltectively, "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\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc $ ORDINANCE NO. 1165 (iv) the payment of ail fees or exactions in the categories and in the amounts as required at the time such fees are due and payable which may be at the time of issuance of building permits, or otherwise as specified by applicable law, aw existing at the time such fees are due and payable, it being understood that this Agreement shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, and to apply such new or increased fees to the Project or applicable portion thereof; (v) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid; (vi) Building, electrical, mechanical, fire and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal Code, as existing on the Effective Date of this Agreement or as may be enacted or amended thereafter, applied to the Project in a nondiscriminatory manner. (c) Notwithstanding any condition setting forth the earlier expiration of any of the Tentative Maps, each of the Tentative Maps shall remain effective for the Term of this Agreement unless modified with the concurrence of Developer, its successors or assigns. 3.2 Proiect Timinq; Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which parts of the Project will be devefoped. Such decisions depend upon G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 9 ORDINANCE NO. 1165 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 dwelfing units of any permitted use under the Agreement given. 3.3 Buildinq Permits and Other Approvals and Permits Subject to (a) Developer's (or its assignee's) compliance with this Agreement, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and customary fees and charges of generat 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\Kevin Swartz\Word�DA,CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 10 ORDINANCE NO. 1165 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 Aareement. 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\Kevin Swartz\Word�DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 11 ORDINANCE NO. 1165 the City, whether taken by ordinance or resolution of the City Council, by referenda, initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the density and intensity of development of the Property and the requirements and guidelines for the construction or provision of on-site and off-site improvements as set forth in the Plan and the Existing Land Use Ordinances, and the timing provisions of Section 3.2, and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. 3.6 OperatinQ Memoranda. Developer and City acknowledge that the provisions of this Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under this Agreement in order to effectuate the purpose of this Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such changes or provide for such additional provisions through operating memoranda to be approved in good faith by the parties, which, after execution, shall be G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 12 ORDINANCE NO. 1165 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 bv Subsequent Laws 5.1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts G:\Planning\Kevin Swartz\Word�DA,CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 13 ORDINANCE NO. 1165 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 Subseauent 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\Kevin Swartz\Word\DA,CUP, PP OS-50 Catalina\City Council DA Ordinance.doc 14 ORDINANCE NO. 1165 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 Defauft") 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 shatl 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 pertormance, the party charged therewith shall not be considered to be in default for purposes of termination of G:\Planning\Kevin Swartz\Word�DA,CUP, PP OS-50 Catalina\City Council DA Ordinance.doc 15 ORDINANCE NO. 1165 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 Re_ medies. 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\Kevin Swartz\Word�DA,CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 16 ORDINANCE NO. 1165 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\Kevin Swartz\Word�DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 17 ORDINANCE NO. 1165 6.5 Third Partv Actions. Any court action or proceeding brought by any third party to challenge this agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the project, whether or not developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under section 5.1. 7. Encumbrances on Propertv 7.1 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\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 18 ORDINANCE N0. 1165 7.2 Mortqaqe Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 7.3 Mortqaqee Not Obliqated. Notwithstanding the provisions of Section 7.2, no Mortgagee will have any obligation or duty under this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. 7.4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and G:\Planning\Kevin Swartz\Word�DA,CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 19 ORDINANCE NO. 1165 return such certificate within thirty (30) days following the receipt thereof. City acknowtedges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and the holders of any Mortgage. 8. Transfers and Assiqnments• Effect of Aqreement on Title 8.1 Riqhts and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, transferee or assignee were Developer hereunder. 8.2 Covenants Run with Land. (i) All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 2� ORDINANCE NO. 1165 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 taws 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\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 21 ORDINANCE NO. 1165 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 detivery date shown on the return receipt. 10. Indemnification: Developer's Obliqation 10.1 Developer's Wronq-Doinq. Developer will defend, indemnify and hold the City and its elected officials, officers and employees ("indemnified parties") free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, incfuding 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\Kevin Swartz\Word�DA,CUP,PP OS-50 Catalina\City Council DA Ordinance.doc 22 ORDINANCE NO. 1165 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 regu�ation relating to hazardous or toxic materials, industrial hygiene, or environmental conditions created by developer or its officers, agents or employees, contractors, subcontractors and independent contractors after the effective date and developer shall defend, at its expense, including attorneys fees, the indemnified parties in any action based or asserted upon any such alleged act or omission. 10.3 Challenqes to Aqreement. Developer agrees and shall indemnify, hold harmless and defend the indemnified parties from any challenge to the validity of this Agreement, or to the City's implementations of its rights under this agreement. 10.4 Defense bv Counsel Chosen bv Citv. In the event the indemnified parties are made a party to any action, lawsuit other adversarial proceeding in any way involving claims arising from this Agreement or Project, developer shalt provide a defense to the indemnified parties, with counset reasonably acceptable to City. Developer shall be obligated to promptly pay all costs of defense, including all reasonable attorneys' fees, and any final judgment or portion thereof rendered against the indemnified parties. 10.5 Non-liabilitv of Citv Officers and Emplovees. No official, officer, employee, agent, or representative of the City, acting in his/her official capacity, shall be G:\Planning\Kevin Swartz\Word\DA,CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 23 ORDINANCE NO. 1165 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. il. 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\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 24 ORDINANCE NO. 1165 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 Severabilitv. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 11.5 Exhibits. The exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 11.6 Entire Aqreement. This written Agreement and the Exhibits hereto contain all the representations and the entire Agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 25 ORDINANCE NO. 1165 warranties or representations are superseded in total by this Agreement and Exhibits hereto. 11.7 Governina Law: Construction of Aqreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 11.8 Siqnature Paqes. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete agreement. 11.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 11.10 Prevailina Partv's Attornev's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 26 ORDINANCE NO. 1165 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 estabfishing 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: sy: CITY: CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: Jean Benson, Mayor Attest: Rachelle D. Klassen, City Clerk G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 2� ORDINANCE NO. 1165 STATE OF CALIFORNIA ) ) ss COUNTY OF � On , 2008, before me, , a notary public in and for said State, personally appeared , personaily 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\Kevin SwartzlWordlDA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 28 ORDINANCE NO. 1165 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY (to be attached prior to recording] G:\Planning\Kevin Swartz\Word\DA,CUP,PP 08-50 Catalina\City Council DA Ordinance.doc 29 RESOLUTION NO. o8-ss A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING, A DEVELOPMENT AGREEMENT, A PRECISE PLAN OF DESIGN AND A CONDITIONAL USE PERMIT TO ALLOW CONSTRUCTION OF A 20-UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE NORTH SIDE OF CATALINA WAY. SUBJECT PROPERTY IS LOCATED AT 73-582 CATALINA WAY. CASE NOS. DA, PP/CUP 08-50 WHEREAS, the City Council of the City of Palm Desert, California, did on the 2g'n day of August 2008, hold a duly noticed public hearing to consider the request by Bernard Investment Group/ Ken Bernard, for approval of the above noted; and WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1St day of July 2008, hold a duly noticed public hearing to consider the said request and by its Resolution No. 2479 approved DA, PP/CUP 08-50; 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, 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 the approval of said request: Precise Plan/Conditional Use Permit: 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. The proposed project is zoned R-2, with a Senior Housing Over/ay and the district allows f/exibility with a variety of types of dwellings at a medium range of population densities, and a/so to provide optional standards and incentives for the development of a wide variety of specialized housing designed and restricted to residents over the age of 55. The proposed project is a 20-unit affordable, infill senior comp/ex for residents over the age of 55, which is in accord with the objectives of the Zoning Ordinance and is consistent with the uses outlined in section 25.38.030 Conditional uses. 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. CITY COUNCIL RESOLUTION NO. os-8s The project will be a new development in an o/der area of the community and as such may lead to other properties upgrading, The proposed project as conditioned will comply with current building and safety codes, Fire Department regulations, and wil/be reviewed by the City's Engineering Department for compliance with City ordinances. The use of the 20-unit senior comp/ex is permitted within the R-2, Senior Overlay zone subject to a Conditiona/ Use Permit (for the land use) and is consistent with the intent of the City's Zoning Ordinance as described in the staff report The site meets setbacks, lot coverage, building height, land use, and parking requirements such that it will not be detrimenta/ to the public interest, health, safety, welfare and wil/ not be materially injurious to properties or improvements in the vicinity as described in more detail in the staff report. A condition of approval has been placed on the project which will require the projecf proponent to construct all necessary on and off-site infrastructure to provide utilities to the proposed pro%ect prior to the issuance of building permits. Water, sanitation and public utilities and services are available in Catalina Way, a public street. 3. The proposed precise plan / conditional use will comply with each of the applicable provisions of this title, except for approved variances or adjustments. The properly is /ocated in the Senior Housing Over/ay District (S.O.) and the project complies with alI 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. Additionally, conditions have been added to the project to ensure that a/l the minimum requirements of the Palm Desert Municipal Code are met, inc/uding Building, Landscaping, Public Works, and the Fire Department conditions. The project requires no variances or adjustments. 4. The proposed precise plan / conditional use complies with the goals, objectives, and policies of the City's adopted General Plan. A primary objective stated in the Land Use Element of the General Plan under Residential Goals, Policies and Programs is Goal 1, which states a balanced range of housing types, densities and affordability that accommodate existing and future residents across all socio-economic sectors of the community. Policy 3 of the General Plan Land Use Element is that the City shall encourage in-fill development on lands /ocated adjacent to or near existing residential areas and utilities to maximize the efficient utilization of/and and CITY COUNCIL RESOLUTION NO. os-ss infrastructure. Policy 8 of the General Plan Land Use E/ement is /ow income/affordable housing sha/l not be located within one area of the community, but shall be dispersed where feasible, appropriate, and compatib/e with surrounding land uses. This project promotes a /and use that is consistent with the goals, policies, and programs of the General Plan. The project is consistent with the General P/an because the project proposes a 20-unit affordable, infill senior complex, which is compatible with the existing uses within the surrounding area, and offers an excellent service to the community. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows 1. That the above recitations are true and correct and constitute the findings of the City Council in this case. 2. That the City Council does hereby approve DA, PP/CUP 08-50 subject to conditions attached (Exhibit "A") PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert City Council, held on this 28th day of August 2008, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: JEAN M. BENSON, Mayor ATTEST: RACHELLE KLASSEN, City Clerk City of Palm Desert, California CITY COUNCIL RESOLUTION NO. os-8s CONDITIONS OF APPROVAL CASE NOS. DA, PP/CUP 08-50 Department of Communitv Development: 1. The development of the property shall conform substantially with exhibits on file with the department of community developmenUplanning, 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 CITY COUNCIL RESOLUTION NO. 08-88 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. All landscape maintenance shall be performed by the property owner and the applicant shall enter into a landscape maintenance agreement with the city for the life of the project, consistent with the Municipal Code provisions and the approved landscaped plan. 2. A complete preliminary soils investigation, conducted by a registered soils engineer, shall be submitted to, and approved by, the Department of Public Works prior to the issuance of a grading permit. 3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55, shall be paid prior to issuance of grading permit. 4. The project shall be subject to Transportation Uniform Mitigation Fees (TUMF) Payment of said fees shall be at the time of building permit issuance. 5. A standard inspection fee shall be paid prior to issuance of grading permits. 6. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code shall be paid prior to issuance of grading permits. 7. Storm drain design and construction shall be contingent upon a drainage study prepared by a registered civil engineer that is reviewed and approved by the Department of Public Works prior to start of construction. 8. Complete grading and improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval prior to issuance of any permits. 9. Any and all offsite improvements shall be preceded by the approval of plans and the issuance of valid encroachment permits by the Department of Public Works. 10. Pad elevations are subject to review and modification in accordance with Chapter 26 of the Palm Desert Municipal Code. CITY COIINCIL RESOI.DTION NO. 08-88 11. Landscape installation shall be drought tolerant in nature and in accordance with the City's Water Efficient Landscape Ordinance (24.04). 12. Landscape plans shall be submitted for review concurrently with grading plans. 13. Full public improvements, as required by Section 26 of the Palm Desert Municipal Code, shall be installed in accordance with City standards including: Installation of 6' sidewalk with dedication or easement rights-of-way necessary for the installation of the above referenced improvements shall be dedicated to the city prior to the issuance of any permits associated with this project. 14. All public and private improvements shall be inspected by the Department of Public Works and no occupancy permit shall be granted until the improvements have been completed. 15. Applicant shall comply with provisions of Palm Desert Municipal Code Section 24.12, Fugitive Dust Control as well as Section 24.20, Storm water Management and Discharge Control. 16. Prior to the start of construction, the applicant shall submit satisfactory evidence to the Director of Public Works of intended compliance with the National Pollutant Discharge Elimination System (NPDES) General Construction Permit for storm water discharges associated with construction. Developer must contact Riverside County Flood Control District for informational materials. 17. Westernmost driveway shall be narrowed to 12' and signed as "Exit Only" Riverside Countv Fire Department: 1. With respect to the conditions of approval regarding the above referenced project, the Fire Department recommends the following fire protection measures be provided in accordance with City Municipal Codes, NFPA, UFC and UBC, or any recognized fire protection standards. The Fire Department is required to set a minimum fire flow for the remodel or construction of all buildings per UFC article 87. 2. A fire flow of 1500 gpm for one-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. CITY COUNCIL RESOLUTION NO. os-88 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 travel way. 5. Water plans must be approved by the Fire Marshal and include verification that the water system will produce the required fire flow. 6. Install a complete NFPA 13R 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) 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 "K" type fire extinguisher is required in all commercial kitchens, mount CU exterior of building. 10. All buildings shall have illuminated addresses of a size approved by the city. 11. All fire sprinkler systems, fixed fire suppression systems and alarm plans must be submitted separately to the Fire Marshal for approval prior to construction. 12. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. Buildinq and Safetv Department: 1. Project must conform to the current State of California Codes adopted at the time of plan check submittal. The following are the codes enforced at this time: 2007 CALIFORNIA BUILDING CODE (Based on 2006 IBC) 2007 CALIFORNIA MECHANICAL CODE (Based on 2006 UMC) 2007 CALIFORNIA PLUMBING CODE (Based on 2006 UPC) 2007 CALIFORNIA ELECTRICAL CODE (Based on 2005 NEC) 2007 CALIFORNIA ENERGY CODE 2007 CALIFORNIA BUILDING STANDARDS ADMINISTRATIVE CODE 2007 CALIFORNIA FIRE CODE 2. An approved automatic fire sprinkler system shall be installed as required per the City of Palm Desert Code Adoption Ordinance 1145. 7 CITY COUNCIL RESOLUTION NO. nR_$8 3. Compliance with Ordinance 1124, Local Energy Efficiency Standards. The requirements are more restrictive than the 2007 California Energy Code. Please obtain a copy of the Ordinance for further information. 4. A disabled access overlay of the precise grading plan is required to be submitted to the Dept of Building and Safety for plan review of the site accessibility requirements as per 2007 CBC Chapters 11 A & B (as applicable) and Chapter 10. 5. All exits must provide an accessible path of travel to the public way. (CBC 1024.6 & 1127B.1) 6. Detectable warnings shall be provided where required per CBC 1133B.8 and 1127B.5 (7). The designer is also required to meet all ADA requirements. Where an ADA requirement is more restrictive than the State of California, the ADA requirement shall supercede the State requirement. 7. Provide an accessible path of travel to the trash enclosure. The trash enclosure is required to be accessible. Please obtain a detail from the Dept of Building and Safety. 8. All contractors and subcontractors shall have a current City of Palm Desert Business License prior to permit issuance per Palm desert Municipal Code, Title 5. 9. All contractors and/or owner-builders must submit a valid Certificate of Worker's Compensation Insurance coverage prior to the issuance of a building permit per California Labor Code, Section 3700. 10. Address numerals shall comply with Palm Desert Ordinance No. 1006 (Palm Desert Municipal Code 15.04.110 through 15.04.160). Compliance with Ordinance 1006 regarding street address location, dimension, stroke of line, distance from street, height from grade, height from street, etc. shall be shown on all architectural building elevations in detail. Any possible obstructions, shadows, lighting, landscaping, backgrounds or other reasons that may render the building address unreadable shall be addressed during the plan review process. You may request a copy of Ordinance 1006 from the Department of Building and Safety counter staff. 8 RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 Attn: Housing Division [Space Above For Recorder's Use Only] The undersigned declares that this Housing Agreement is exempt from Recording Fees pursuant to California Gove�nment Code Section 27383. HOUSING AGREEMENT By and Between THE CITY OF PALM DESERT and BERNARD INVESTMENT GROUP DATED AS OF , 2008 Bernard Investment-Housing�Agreemant 2008(4 Units) P6402-0001\988220v2.doc TABLE OF CONTENTS ARTICLE 1. DEFINITIONS AND INTERPRETATION................................................. 1 1.1 Definitions .............................................................................................................. 1 1.2 Rules of Construction.............................................................................................2 ARTICLE 2. ONGOING PROJECT OBLIGATIONS ....................................................3 2.1 Allocation of Senior Citizen Low Income Units and Senior Citizen Moderate IncomeUnits ..........................................................................................................3 2.2 Residential Rental Property....................................................................................3 2.3 Senior Citizen Low Income Households and Senior Citizen Moderate Income Households ............................................................................................................ 3 2.4 Allowable Rent .......................................................................................................4 2.5 Rent Increases.......................................................................................................5 2.6 Increased Income of Occupying Households.........................................................5 2.7 Lease Provisions....................................................................................................6 2.8 Security 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 Barnard Investment-Housing Agreament 2008(4 Units) 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 ExhibitA ......................................................................................................................A-1 ExhibitB ......................................................................................................................B-1 ExhibitC ..................................................................................................................... C-1 ExhibitD ..................................................................................................................... D-1 Bernard Investmenl-Housing Agreement 2008(4 Units) II P6402-00011988220v2.dx HOUSING AGREEMENT THIS HOUSING AGREEMENT (the "Housing Agreement") is dated for reference purposes as of , 2008, and is by and between the CITY OF F�ALM 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 finrenty (20) apartments units on +/- acres. B. As a condition of said approval (Resolution No. , Case Nos. PP/CUP 08-50 and DA ), City has required, and the Owner has agreed, that four (4) 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 finrenty (20) 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 2008(4 Units) � P6402-0001\988220v2.doc the California Department of Housing and Community Development ("HCD") , 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 twenty (20) 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 �5 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 2008(4 Units) 2 P6402-00011988220v2.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, four (4) of the studio apartment units constructed in the Project shall be allocated for occupancy by two (2) Senior Citizen Low Income Households and two (2) Senior Citizen Moderate Income Households (which apartment units are collectively referred to herein as the "Restricted Units"). At no time during the term of this Agreement will the Restricted Units be concentrated into one area of the Project. 2.2 Residential Rental Propertv. Owner covenants and agrees to operate the Project as residential rental property during the entire term of this Housing Agreement. Restricted Units in the Project will be held and used for the purpose of providing affordable senior rental housing, and Owner shall own, manage and operate, or cause the management and operation of, the Project to provide such affordable senior rental housing. Owner will not knowingly permit any of the Restricted Units in the Project to be used on a transient basis, and will not rent any Restricted Unit for a period of less than thirty (30) consecutive days. 2.3 Senior Citizen Low Income Households and Senior Citizen Moderate Income Households. 2.3.1 Income Qualification. Restricted Units will be exclusively occupied ar, 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 2008(4 Units) .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 a report in the form attached hereto as Exhibit "D" or 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 Proarams. Owner will accept as tenants of the Project, on the same basis as all other prospective tenants, Senior Citizen Low Ir��come Households and Senior Citizen Moderate Income Households who are recipients of Federal certificates and/or vouchers for rent subsidies pursuant to an existing program under Section 8 of the United States Housing Act of 1937 or its successor, and shall not apply selection criteria to Section 8 certificate holders that are more burdensome than the criteria applied to all other prospective tenants. 2.3.3 Citv Option to Subsidize Senior Citizen Low Income Households. The 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 2008(4 Units) 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 Occupvinq 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 2008(4 Units) .5 P6402-00011988220v2.doc Households, then such Restricted Unit may be redesignated as a market rate unit, provided there is a unit of equal size and composition to designate as a Restricted Unit for Senior Citizen Low Income Households, and the monthly rent for such market rate unit shall not be subject to the allowable rent provisions contained in Section 2.4 above. 2.7 Lease Provisions. The form of lease or rental agreement used by the Owner for the lease or rental of Restricted Units shall be that which is reasonable and customary in residential leasing. Each lease or rental agreement for a Restricted Unit shall provide that the tenants of such Restricted Unit shall be subject to annual certification or recertification of income and subject to rental increases in accordance with Section 2.6 above. The Owner shall include provisions in leases or rental agreements for all Restricted Units which authorize the Owner to immediately terminate the tenancy of any Senior Citizen Low Income Household or Senior Citizen Moderate Income Household occupying a Restricted Unit where one or more members of such Senior Citizen Low Income Household or Senior Citizen Moderate Income Household have misrepresented any fact material to the qualification of such an individual or family as a Senior Citizen Low Income Household or Senior Citizen Moderate Income Household or other qualification for occupancy of a Restricted Unit. Each lease or rental agreement shall also provide that the Owner will not discriminate on the basis of race, creed, color, sex, national origin, ancestry, religion, marital status, disability or receipt of public assistance or housing assistance in connection with a rental of a Restricted Unit, or in connection with the employment or application for employment of persons for operation and management of the Project, and all contracts, applications and leases entered into for such purposes shall contain similar nondiscriminatory clauses to such effect. 2.8 Securitv 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 ciescribed 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 Agreament 2008(4 Units) 6 P6402-00011988220v2.doc 2.11 Citv Subsidv 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 tncome Household or a Senior Citizen Moderate Income Household, as designated by fit�� 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 Mana ement A ent. 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 Bindinq for Term. City and Owner agree that (i) the provisions of this Housing Agreement shall apply to the Project throughout the entire term hereof, as established in Section 3.1 below, and (ii) upon the occurrence of an Event of Default by Owner the City shall be entitled to all relief and remedies provided for herein. ARTICLE 3. TERM AND RECORDATION 3.1 Term of Housinq Aqreement. This Housing Agreement shall remain in full force and effect for a period of fifty-five (55) years from the date on which the City issues the final certificate of occupancy for the Project. 3.2 Aqreement to Record. Owner hereby consents to the recordation by the City of this Housing Agreement in the real property records of Riverside County. The Owner shall pay all fees and charges in connection with any such recordation. 3.3 Earlv Termination of Restrictions. Nofinrithstanding 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 Bernardlnvestment-Housing Agreement2008(4 Units) 7 P6402-00011988220v2.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 pertorm, 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, certi�cate, 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 Agreament 2008(4 Units) 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 Citv's Option to Lease. Upon the occurrence of an Event of Default, and to cause the Project to meet the requirements of this Housing Agreement, Owner hereby grants to the City the option to lease, at the then current market rental rate in the Project, up to all of the apartment units in the Project as necessary to achieve compliance with the provisions of Article 2 of this Housing Agreement and for the purpose of subleasing such apartment units in accordance with the requirements of this Housing Agreement. Any rental paid under any such sublease shall be paid to the City without obligation to pay any such rent to Owner during the pendency of Owner's default. 4.3 Other Remedies. In addition to the rights and remedies otherwise expressly provided herein for the benefit of the City upon an Event of Default by the Owner hereunder, the City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require the Owner to perform its obligations and covenants under this Housing Agreement, or to enjoin acts or things which may be unlawful or in violation of the provisions hereof. 4.4 Action at Law: No Remedv Exclusive. The City may take whatever action at law or in equity as may be necessary or desirable to enforce pertormance 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 2008(4 Units) 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 Reqair 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 finrenty-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, Director of Housing Fax: (760) 341-6372 Bernard Investment-Housing Agreement 2008(4 Units) �� P6402-00011988220v2.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 befinreen 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 pertormance 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 Citv or Aqencv Officials Emplovees and Aaents. No member, official, employee or agent of the City or Agency shall be personally liable to the Owner, or its successors-in-interest, for any damages, claims, liabilities or costs incurred by the Owner, or its successors-in-interest, and arising from any event of default or breach by the City or Agency (in the event the City's obligations are delegated to the Agency as provided in Section 5.17.3 below) under this Housing Agreement. 5.8 Unavailable Delav• Extension of Time of Performance. The failure of timely perFormance by either party hereunder shall not be deemed to be a default when it is due to an "Unavoidable Delay." "Unavoidable Delay' means a delay due to the elements (including unseasonable weather), fire, earthquakes or other acts of God, strikes, labor disputes, lockouts, shortages of construction materials experienced Barnard Investment-Housing Agreement 2008(4 Units) 11 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 �r 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 Riqhts 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 Leaal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Housing Agreement, or to collect damages as a result of any Bernard Investment-Housing Agreement 2008(4 Units) �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 Bindinq Upon Successors. This Housing Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors-in-interest and assigns of each of the parties, and shall run with the title to each and every portion of the Property and the Project. Any reference in this Housing Agreement to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired an interest in compliance with the terms hereof or under law. 5.16 Time of the Essence. In all matters under this Housing Agreement, time is of the essence. 5.17 Approval bv the Citv. 5.17.1 Any approvals required under this Housing Agreement shall be made by the City Manager or his or her designee, and shall not be unreasonably withheld or delayed, except where it is specifically provided that another standard applies, in which case the specified standard shall apply. 5.17.2 Except as otherwise provided in this Housing Agreement, whenever this Housing Agreement calls for approval by the City of a proposed document to be submitted by the Owner, the City shall notify the Owner of approva� 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. �.18 Complete Understandinq 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 Inveslment-Housing Agreement 2008(4 Unils) 13 P6402-0001\988220v2.doc 5.20 Counterparts. This Housing Agreement may be executed in finro or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGEj Bernard Investment-Housing Agreement 2008(4 Units) 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 2008(4 Units) 15 P6402-00011988220v2.doc State of California }SS County of } On , 20 , before me, a Notary Public, personally appeared ' who 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. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California }SS County of } On , 20 , before me, Notary Public, personally appeared ' a who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Bernard Investment-Housing Agreement 2008(4 Units) 16 P6402-00011988220v2.doc State of California }SS County of } On , 20 , before me, a Notary Public, personally appeared ' who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Bernard Investment-Housing Agreement 2008(4 Units) �7 P6402-00011988220v2.doc EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY [to be added prior to recording] APN: Bernard Investment-Housing Agraemant 2008(4 Units) Exhibit A-1 P6402-0001\988220v2.doc EXHIBIT B CERTIFICATION OF HOUSEHOLD ELIGIBILITY HOUSEHOLD INCOME GERTIFIGATION Ett°��veDete: � Mwe In�ate: u initial Certification _ Recertifica#ion _Other ��D�r� --- Property name: Address; Unit No. #Bedrooms: Pursuant to e Housing Agreement with the Gity of Palm Desert Pelm Desert Redevelapment Agancy,a the Hausing furthority,Progrem Eligibility and Aftwdability verifications for Low end Moderate Incoma Househdds shalt be perfortncd'as required by Titla 25 subJact to eligihAity venficetion proceduros and requirements 4escribed thercin, and as emeoded from time to time.The tdlaxinp ouNines 6ow ennual incame is celculeted to detsrmine househdd income eligibility,which is required prfa to the housandd residing in an aftadeble housing u and every year thereafter for the canplie�ce periqd. � The fWlowing�questloas will assist :�� you in canpkting.tfie HOUSEHOLD INCOMECERTIFICATION.Whe ering tha questions answer"Yes^if any oF the informetion requested or incane souroa perteins to eny tenant,co-tenent,a adutt ind��d bar of the,�usehold(individuals 18 years and dder)duringthe 12 matths fdlowing the dflte oTths certfication or recedification. �� ,' INCOME INFORMATION E � � YES NO (altSources are to be disclosed below unless otFlerwise excluded by THLY Q ROSS I�ICOME Title263ectionj � � � " LJ �..J ��we am self employed.(List nature of self employmentJ (use nei' e �b siness} $ , �� .. U U TAve have a job and receive wages,salary overti /` ission�`� � tips,bonuses,and/or other compensation List '' usi ess d/or �� ° companies that pay you: � � Name of Employer; ross income;amount 1) � �'� `�orean a deductions ��,�.3' � YPY ) 9� TOTAL CSME(BOX A) x � ��, 's � r1 Ilwe receive periodic social security pay � ��"'' rr� �`� �' $ �� I/we receive Supple('��tal Security Income�Slp. ��^ $ ��f��'� � TOTpL INCOME(BOX B) �— � ��'�� n n IJwe rec�ive cash contributi' �of gifts'in � nt or utility payments,on an on��basis from perso ; t Irvmg wnth m�s, $ �� I/we rec��Assistance In ,e Other._,�� Pleas I 1 $ �'�E�� a�' � �� 3� � �� TOTAL INCOME{BOX C): $ LJ �...g � �;� � �/we receroe u��nployment benefits. $ ❑ '� � Ihv� eroe Vet��n's Administration.GI Bi11,orNational GuardlMilit�ry �� ,.;� me .,.. $ � U U The house re�ves uneamed income from family members age 17 or under(exar�e Soeiaf Security,foster care,etc.} $ '�! �--� U Ilytte rp ^ periodic disability oi death benefits other than Social 8ecurity. $ n n Uw�e m entitled to receive child support payments,but am not currenHy receiwng paymants. L.I LJ ��am currentiy rece'rying child supportpayments. If yes,from how many p�rsans do you receive support? g U U Ihxe receive alimony/spousal support payments $ �j U I/vre receive periodic payments from trusts,annudies;inheriqnce,retirement funds or pensions,insurance policies,wo�kers compensation and severance;interest and dividends,or lottary winnings. If yes,list sources: 1) $ RHv sneizooa Bernardlnvestment-HousingAgraemant2008(4Units) Exhibit B-1 P6402-00011988220v2.dx HOUSEHOLD INCOME CERTIFICATION PAGE20F3 U U �Iwe receive income from rental,real or personal property. g � � Any othet income? Describe soutce: $ TOTAL INCdME(BaX D) $ � YES NO ASSET INFORMATI4N CASH VALUE U U I/we have a checking aCcount If yes,listbank 1) � ❑ � Ihve have a savings aceount If yes,list bank 1) � ,,,... U U f/we have a revocable trust �i �;,, ' If yes,Iist bank �� `� �.a a 1) � �� , � S n n Ilwz awn real estate: ' ', � If yes,provide description � �;,. � �; �� , ❑ ❑ �/we own stocks,bonds;or Treasury��s �" If yes,listsourceslbanknam�s �� ;� �� *',y>.N ��,,-- $ IJ U Vwe have Certificates of Deposit(CD)or ey 'N��ACcount�;;� Ifyes,listsource�banknarrres �; `�� 1)� ��"i�� a�. $ ;� n I/we have an IRAlLump S��ensioc" ounU401 K If yes,list bank � x�� <:� y �. �� i �L� Ma�; $ ❑ ❑ IlWe h�ve�whole'�' �nce po � If yes t�many �� R � $ � r�� ❑ ��::; I/we have d assets(i e g"ave away money/assets)for less than � the fairmark e in the past 2 years If yes,list R�and date tlispnsed: � ;,, $ n ��'� I/we recei "; the� ms of capitaf investments. If yes,desa' source: $ YES NCJ S7�JD �TATUS ��\ n n Does the household consist of persons who are all f I-tim students (Examples:CollegelUniversity,trade school,etc.) I� n Js student receiving financial aid(public or private,not including student loans) $ n n Is student married and filing a joint 1a�c return U U Is student asingis parent witli a dependent child or child�en and neither you nor your chi(d(ren)are dependent of another individual TOTAL INCOME(BOX F) I$ � R9u vzanooa Bernard Investment-Housing Agreement 2008(4 Units) Exhibit B-2 P6402-00011988220v2.doc HOUSEHOLD INCOME CERTIFICATION PAGE 3 OF 3 PART I.HOUSEHt3LD COMPOSITION'' HH Last Name F'rrst Neme Reletiwshipto Dete of Bidh F� Sociel Secunty Mbr# &Middle Inid81 Heed of Househdd (MfD/YWY} ��t or qjien Req.No Seif � TOTALHOUS DMEIY�, ; # PART fl.OROSS ANNUAL INCQME{USE ANNUAL AMAUNTSj HH tA) (B) fp� , Mbr# Emplaymenl or Weges Sociel Sacurity/Pensions Pu61ic " nce Othar I�te 1. �� , �x z� �.i �;. ;� ..�,.; Add totals rough(�), TOTAt INCOME: (E) PART Ill-INCOiNE FROM ASSETS ' HH `�) (G} ., (H} Mbr# 7ype of ;� (I) CA ,< esh Vaiue of Asset Annual Incame hom Asset ALL $5000 Asset Waivar ��.;; �p ��:� +� `a�''F>, "�� rw �.. �+ � °?�° TCITALS: Enter��n�H)Total s� If�r$5,000 $� X 10.00% = Imputed Income �� Er��thetdal of cd �y� or imp�Q Incame(J),whichever is greetnr. TOTAL INCOME FROM ASSEF3: (K) ��"" �� ;p otal Annuaf Household Ineome irom all Sources[Adtl(E}+(K)]: (L) HpU$EHUL�GERTIFIGATION$F�ONpTURES The iniamation qn this fam wil used to determine me�amum income eifpiWllly.I/we heve provlded each person(s)set tarth in Part I acceptable verification of eurrent�ticiq nnual income.IM�.e agree to notify the landlord immediately upon eny member of the fi�ousehold mwing out aF the unit or e�y new „ 'v�ng in.IAve egree to notify tha lendlord immediately upon eny mem6er tiecaning a flull-time student. Untler penelty of per�ury of theJews of the Stete of Celtiornla,IH✓e certiry thet the iniormatlon pmsented in the Certfficetion is truo-end eccureta to the 6est of my/our know�edge end tielief:The undersigned further undarstands that providing talse representetion5 hercin constitutes an ect of fraud.Felse�,misleeding a incanplete informetion mey result in tAe terminetion of�the leese�agreement. � Signeture Date Signeture — Date Signature pmte Signeture Date �iav 2%:A/?OU° Bernard Investment-Housing Agreement2008(4 Units) Exhibit B-3 P6402-0001\988220v2.doc EXHIBIT C CERTIFICATE OF CONTINUING COMPLIANCE OWNER'S CERTIFICATE OF CQNTINUINC3 COMPLIANCE To: City of Pelm Desert Redevelopment Agency 73-510 Fred Waring Drive Pelm Desert,CA 92260 Attn Director of Housing Certification Dates: From: To Project Name: Project Number: Project Address: Tax Id#af(7wnership Entity, The undersigned on behalf oT ("the Uwner",hereby certlfies that: �-�No buildings have been Placed in Servioe �dther 1. The project meets the minimum requirements of: ❑ n 2. There has been change/na change for any building in the project: � NO GHANGE n CWANGE If��Change,°'please list: 3. The owner has received annUal Tenant Inaome Certifioation from all low-income households and dacumentation to support that certification. � YES ci NO 4. All low-income units in#he praject have been rent-restricTed under the terms af Agreement Na.: i� YES r:a 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: � YE5 ❑ NO 6, No finding of discrimination under the Fair Housing Act,4Z U,SrC 3601-3619, has accurred for#his project. A finding of discriminatian inciudes an adverse final decision by the Sec�etary of h-Iousing and Urban qevelopment(Hl1D}, 24CFR 180.680, an adverse final decision by a substantially equivalerct state or local fair housing agency, 42 U.S.0 3616a{a)(1),or and adverse judgment from a federal court: u YES �r NO List Finding if occurred: Bernard Investment-Housing Agreement 2008(4 Units) Exhibit C-1 P6402-0001\988220v2.doc CERTIFICATE OF CONTINUING COMPLIANCE Page 2 of 2 7• Each building and low-income unif in the project is and has been suitable for occupancy, taking irrto account local health,safety,and building codea(qr other habitability skandards),and khe state or Ipcal govemment unit responsible Por making building code inspections did not issue a repart of a vialation for any building or low-income unit in the prqjecY � YES ❑ NO If "No" state nature of violation Attach a copy of the violation report as required by 26 CFR 1_42-and any documerrtation of correotion. 6. All tenant facilities, such as swimming pools, other recreational facilities, parking areas, washeddryer hookups, and sppliances were provided on a compareble basie,without charge,ta all tenarrts in the buildings: ❑ YES ❑ NO 9. If any of the low-income units in the project has been vacarrk during the year, reasanable attempts were or are being rnade to rerrt that unit ar the next available unit of compa�able size to households having a qualifying income beFore any units were or wilt be rented ta tenarrts not having a qualifying income; � YES ❑ �p �0. If the income of a household of a low-income unit in any building increased above the qualifying limit allowed by the Agreement Nc7. the ne�ct available unit oi comparable size in that building was or will be rented to tenai�ts having a qualifying income: o YES r� �p 1'I. There has been change/na change i�the ownership or management of the project: � NQ CHANGE u CHANGE If"Change,"attach a copy detailing irrtormation af the changes in ownership ar management of the praJect. Note:Failure to complete this farm in its eirtlrety wlll resuft in non-compliance with ptogram requfrements. In addition, any Individual other than an owner nr general partner M project Is not permitted to sign this form. The projeot is atherwise in campliance with Agreement No. and all other applicabis laws, rules and regulations. This Certification and any attachments are made UNDER PENALTY OF PERJURY of the L.awe of the State of Califomia. (Ownership EntrY) By: Tltle: Date: Place: Barnard Investment-Housing Agreement 2008(4 Units) Exhibit C-2 P6402-0001\988220v2.doc EXHIBIT D ANNUAL COMPLIANCE REPORT ;��a��. �F,s+-�,= � J . _ ��c r��p:g;;;e FFC._i;T:J4:A'c �V�SY. . . CA:'-_Yt&1eN�r'R"'.:�.R7�' F;F�9�...AAI TG^TA:.t'0:Vt31T51N k �f'Y?l7� �..�, 5 F..'�RiEr'a'c / � . . A 4Ff f.RCaSEti'Jtll;S��q+.'.;,^,ET* r.�AFir?it FF�;��T 7r':fiE� � iMdflAtiE7rh'?AUENF Lc.$e�3 N"�.BZS ?iyyo FT�m �iNt t�» l�Jfhr, .... ..... ithMdt:...... ��Ns,cih _eX�E M, Ea05:H�38P1�d'f��.�4F.N . .. ....... ..... . ..... ..... �" �. ..-riS[Nii yyEHl� ,s:FtiHNt'-R % ,$R0+'6 ErkR"= Y�Wi( FE5' fA li 6:'.k..�Y V(FCF£,+lf��. Y � �F[�is YAtk� �. �Rf . tMJAp 4KUri� ,....4 kV.'Gx� :fA.S,�,G b.C'E 9IE Rf0.blttl:QPE � 6FUi � e�' A�1;W� .M' ��:ziCflpY :�A... -C'•.asxirc. ?uc . ;i. (.4 ' :�U . . � �3 � FWi 'E:i tfT, 'IC ' (15i � fiG t1A3 . (3s � S 3 1 � 3 E r � i � � � � 1 E � � J .'v-.4L P1..N��'.r.�}�l.Vfi�-V:GIP:E�' . .C?:4L N':tdB:R r.F�FST.IC'_-iz U�i!T_rC��::P�1�, �-v u�,�ne��e.->v�<-;,v��.�>a�aew.�ecas:�Fr::,�a��e �rn,rrat�,€�o,,.„xz,��rz.�n�,PU;s�Heu r�� ,r�r.xio�i�1�;�, ani�y�emrur etr��eu.lx-aran: :r�e:Fla:�u��^�nt; F,Q. .;...m�h'um;Y ntwe .a;e rrai�.erxac N�i:�rY.t.A Bernardlnvestment-HousingAgreement2008(4Units) Exhibit D-1 P6402-0001\988220v2.doc � � r � � � � � � � ��e � � � � �� 73-5io Fxen W�KiN�, Diaiv��: PAL�7 PFtiERT,�,A1.IfORNIA�2260-257$ TEL:]60 346-06�� FAX:]60 34i-7oq8 in(uF?palm-dcsert.urg CITY OF PALM DESERT LEGAL NOTICE CASE NO. DAIPP/CUP 08-50 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 precise plan of design, conditional use permit and development agreement to construct a 20-unit senior citizen apartment project located at 73-582 Catalina Way. i ,� I � J � �`�� + �___BbMCtfQgQ� < IT�I i I MO � ` 'I i I I�LJ o d $� < y�FREO WARING OR FRED N6{RM6 QR . � I SAMTi3 ROSA_W9Y R � SAUlfTA B NNY � � i 'a ` v . SANNlCMOGASdV � � � � �� m — I � D z r, y� � carau,va wav � ... . ... - ATALtlMA�N6{ -_.... �. A � '� GUADAf.UPE AVE ' f y 1 4� x ROYAL PALMDR .� I O . �'u�141C�_ -rn—� �. ,r,,pY ��y.WAY~ '`. //.��]f '"+`� . �� ..r.CiN�"1 � r�"`�i.. ...�.,... //l J�.'�!'`�y�\/'� SAID public hearing will be held on Thursday, August 28, 2008, 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 befinreen 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 City Council at, or prior to,the public hearing. PUBLISH: Desert Sun RACHELLE KLASSEN, City Clerk August 18,2008 Palm Desert City Council � , � �� .. MINUTES PALM DESERT PLANNING COMMISSI�N JULY 1 g Commissioner Limont asked how many palm-frond towers were in the city. Mr. Bagato guessed approximately 15. Commissioner Limont thought Palm Desert did a great job of hiding them, especially compared to those seen when traveling to Orange County or L.A., where there was some sort of a fir tree with spikes sticking out. She thought Palm Desert did a good job. Chairperson Tanner o ened the public hearing and for anyone who wished to speak regarding this item to come forward. MR. PETE SHUBIN of Secoy Deployment Services, representing Omnipoint Communications, the applicant on the project, stated that they reviewed the draft conditions of approval and accepted them as presented. He was present to answer any additional questions. There were no questions for the applicant. Chairperson Tanner asked if anyone else wished to address the Commission in FAVOR or OPPOSITION to the proposal. There was no one and the public hearing was closed. Action: It was moved by Commissioner Campbell, seconded by Commissioner Limont, approving the findings as presented by staff. Motion carried 4-0. It was moved by Commissioner Campbell, seconded by Commissioner Limont, adopting Planning Commission Resolution No. 2478, approving Case No. CUP 08-228, subject to conditions. Motion carried 4-0. """'� B. Case No. DA/PP/CUP 08-50 — BERNARD INVESTMENT GROUP / KEN BERNARD, Applicant Request for a recommendation to City Council for approval of a Precise Plan/Conditional Use Permit and Development Agreement to construct a 20-unit senior citizen apartment project located at 73-582 Catalina Way. Mr. Swartz reviewed the staff report. He noted that the exit-only driveway was shown at 14 feet by the applicant, but the Department Public Works placed a condition on it to reduce it to 12 feet; the applicant was aware of that condition and concurred. Mr. Swartz informed Commission that the applicant conducted a meeting with the neighborhood. Mr. Swartz stated that the project would be compatible with the existing surrounding 3 . MINUTES PALM DESERT PLAhI�:";G COMMI�SION J li v � neighborhood and all findings of approval couid be made. It was a Class 32 Categorical Exemption for environmental purposes. He also stated that the project would conform to all zoning regulations, there was adequate parking provided, the design and layout would not interfere with the existing neighborhood, and the architecture would enhance the surrounding neighborhood. He recommended adoption of the findings and the draft resolution recommending to City Council approval, subject to the conditions. Commissioner Campbell asked if the project would be gated. Mr. Swartz said no. Commissioner Limont asked if this still had to go back to the Architectural Review Commission and the Landscape Committee. Mr. Swartz said yes and confirmed that they had preliminary approval. Chairperson Tanner asked when the applicant conducted conversations with the neighbors, if there were any complaints that were presented at that time. Mr. Swartz said no. There were no other questions. Chairperson Tanner o ened the public hearing and asked the applicant to address the Commission. MR. KEN BERNARD, the applicant, stated that he read the conditions and was in agreement with them. He had also read the proposed development agreement and housing agreement and was in agreement with those as well, as tentatively done. Chairperson Tanner asked for any testimony in FAVOR or OPPOSITION to the proposed project. There was none and Chairperson Tanner closed the public hearing and asked for Commission comments. Commissioner Limont said she had one comment, and it went back to some things going on with Landscape Beautification, CVAG and other groups in the valley, and that is that water has become an incredibly important issue. She looked for guidance, but thought they needed to start looking to new developments and new projects with the thought of fountains not being the right way to go. They were looking at the issue of becoming a drought state and if that happened, it was better not to have to turn off the fountain. She also thought he had done a beautiful job, it was a tough lot, and it looked great, but encouraged him to do something other than the fountain if he could. 4 d I.. � MINUTES `� ��. PALM DESFRT PLANNING COMMISS�ON �"' " 1 200A Mr. Bernard stated that in speaking with the Department of Public Works, the proposal of grass and the fountain, and he was just finishing a similar project on Santa Rosa and that project, and because of the drought situation, they cut out all of the grass and the water feature on that project, and would probably do the same with this project, depending on Public Works' input. Commissioner Limont appreciated it. Commissioner Campbell thought the project was very nicely done and had great architecture. She thought it would do well on that street. She remembered Mr. Bernard's other work and was in favor of approval. Action: It was moved by Commissioner Campbell, seconded by Commissioner Limont, approving the findings as presented by staff. Motion carried 4-0. It was moved by Commissioner Campbell, seconded by Commissioner Limont, adopting Planning Commission Resolution No. 2479, recommending to City Council approval of Case No. DA/ PP/CUP 08-50, subject to conditions. Motion carried 4-0. �X• MISCELLANEOUS A. CASE NO. HPR/Pp pg_25g _ BRUCE KUYKENDALL, BARRACUDA, LLC, Applicant Request for approval of a preliminary building site for a five- acre parcel of land in the Hillside Planned Residential zone pursuant to the requirements of Section 25.15.130 (Optional Preliminary Approval) of the Palm Desert Municipal Code. Said request does not qualify as a project under CEQA guidelines; no environmental studies shall be required at this time. Property is located west of the Palm Valley Storm Channel on Upper Way West, APN: 628-130-015). Ms. Schrader stated that approval of this request would recommend an appropriate building site for a single family residential home on a five-acre lot within the Hillside Planned Residential zone. As background, she said that currently the Hillside Planned Residential (HPR) zone code does not allow development on ridges. She provided a vicinity map to familiarize them with the site. She pointed out the project site, stating that the project site was west of Highway 74, to the west of the channel, and was accessed by an existing road, Upper Way West, for which there are 5 _._ _ , ` �, PLANNING COMMISSION RESOLUTION NO. 2479 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 20- UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE NORTH SIDE OF CATALINA WAY LOCATED AT 73-582 CATALINA WAY. CASE NOS. DA/PP/CUP 08-50 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1 of July, 2008, 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 /conditionaf use permit and development agreement: Precise Plan/Conditional Use Permit: 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. The proposed project is zoned R-2, with a Senior Housing Overlay and the district allows flexibility with a variety of types of dwellings at a medium range of population densities, and also to provide optional standards and incentives for the development of a wide variety of specialized housing designed and restricted to residents over the age of 55, The proposed project is a 20-unit affordable, infill senior complex for residents over the age of 55, which is in accord with the objectives of the Zoning Ordinance and is consistent with the uses outlined in section 25.38.030 Conditional uses. 2. The proposed location of the precise ptan / 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. PLANNING COMMISS�ti1N RESOLUTION NO. 2479 ( - The project will be a new development in an older area of the community and as such may/ead to other properties upgrading. The proposed project as conditioned will comply with current Building and Safety Codes, Fire Department and Reviewed by the City's Engineering Department for compliance with City Oidinance. The use of the 20-unit senior comp/ex is permitted within the R-2, Senior Overlay zone subject to a Conditional Use Permit (for the land use) and is consistent with the intent of the City's Zoning Ordinance as described in the staff report. The site meets setbacks, lot coverage, building height, land use, and parking such that it will not be detrimental to the public interest, health, safety, welfare and will not be materially injurious to properties or improvements in the vicinity as described in more detail in the Staff report A condition of approva!has been placed on the pro%ect which will require the project proponent to construct all necessary on and off-site infrastructure to provide utilities to the proposed project prior to the issuance of Building Permits. Water, sanitation and public utilities and services are available in Catalina Way, a public street. 3. The proposed precise plan / conditional use will compiy with each of the applicable provisions of this title, except for approved variances or adjustments. 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. Additionally, conditions have been added to the project to ensure that all the minimum requirements of the Palm Desert Municipal Code are met, including building, landscaping, public works, and the fire department conditions. The project requires no variances or adjustments. 4. The proposed precise plan / conditional use complies with the goals, objectives, and policies of the city's adopted General Plan. A primary objective stated in the Land Use Element of the General Plan under Residential Goals, Policies and Programs is Goal 1, which states a balanced range of housing types, densities and affordabilities that accommodate existing and future residents across all socio-economic sectors of the community. Policy 3 of the General Plan Land Use E/ement is that the City shall encourage in-fill development on lands located adjacent to or near existing residential areas and utilities to maximize the efficient utilization of land and infrastructure. Policy 8 of the General P/an Land Use E/ement is /ow income/affordable housing shall not be located within one area of the community, but shall be dispersed where feasib/e, appropriate, and compatible with surrounding land uses. 2 , ___ _ . j�� - �-, PLANNING COMMISSI�ry RESOLUTION NO. 2479 This project promotes a /and use that is consistent with the goa/s, po/icies, and programs of the Genera/ P/an. The project is consistent with the General Plan because the project proposes a 20-unit affon�►ab/e, infil!senior complex, which is compatib/e with the existing uses within the surrounding area, and offers an excellent service b the community. 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. 2. That approval of Development Agreement� Precise Plan / Conditional Use Permit 08-50, is 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 1st day of July, 2008, by the following vote, to wit: AYES: CAMPBELL, LIMONT, SCHMIDT, TANNER NOES: NONE ABSENT: NONE ABSTAIN: NONE � VAN G. TANNER, Chairperson ATTEST: i�i'��' G URI AYLAIAN, Secretary Palm Desert Planning Commission 3 % PLANNING COMMIS��.�N RESOLUTION NO. 2479 � CONDITIONS OF APPROVAL CASE NOS. DA/PP/CUP 08-50 Deaartment of Communitv Develoament: 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 4 _ .. �' PLANNING COMMISSIdN RESOLUTION NO. 2479 � � 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 agreernent prior to obtaining a building permit for the project. Deaartment of Public Works: 1. AI! landscape maintenance shall be pertormed by the property owner and the applicant shall enter into a landscape maintenance agreement with the city for the life of the project, consistent with the Municipal Code provisions and the approved landscaped plan. 2. A complete preliminary soils investigation, conducted by a registered soils engineer, shall be submitted to, and approved by, the Department of Public Works prior to the issuance of a grading permit. 3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55, shall be paid prior to issuance of grading permit. 4. The project shall be subject to Transportation Uniform Mitigation Fees (TUMF)Payment of said fees shall be at the time of building permit issuance. 5. A standard inspection fee shall be paid prior to issuance of grading permits. 6. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code shall be paid prior to issuance of grading permits. 7. Storm drain design and construction shall be contingent upon a drainage study prepared by a registered civil engineer that is reviewed and approved by the Department of Public Works prior to start of construction. 8. Complete grading and improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval prior to issuance of any permits. 9. Any and all offsite improvements shall be preceded by the approval of plans and the issuance of valid encroachment permits by the Department of Public Works. 10. Pad elevations are subject to review and modification in accordance with Chapter 26 of the Palm Desert Municipal Code. 11. Landscape installation shall be drought tolerant in nature and in accordance with the City's Water Efficient Landscape Ordinance (24.04). 5 ( , PLANNING COMMIS��vN RESOLUTION NO. 2479 • 12. Landscape plans shall be submitted for review concurrently with grading plans. 13. Full public improvements, as required by Section 26 of the Palm Desert Municipal Code, shall be installed in accordance with City standards including: Installation of 6' sidewalk with dedication or easement. Rights-of-way necessary for the installation of the above referenced improvements shall be dedicated to the city prior to the issuance of any permits associated with this project. 14. All public and private improvements shall be inspected by the Department of Public Works and no occupancy permit shall be granted until the improvements have been completed. 15. Applicant shall comply with provisions of Palm Desert Municipal Code Section 24.12, Fugitive Dust Control as well as Section 24.20, Storm water Management and Discharge Control. 16. Prior to the start of construction, the applicant shall submit satisfactory evidence to the Director of Public Works of intended compliance with the National Pollutant Discharge Elimination System (NPDES) General Construction Permit for storm water discharges associated with construction. Developer must contact Riverside County Flood Control District for informational materials. 17. Westernmost driveway shall be narrowed to 12' and signed as "Exit Only". Riverside Countv Fire Department: 1. With respect to the conditions of approval regarding the above referenced project, the Fire Department recommends the following fire protection measures be provided in accordance with City Municipal Codes, NFPA, UFC and UBC, or any recognized fire protection standards. The Fire Department is required to set a minimum fire flow for the remodel or construction of all buildings per UFC article 87. 2. A fire flow of 1500 gpm for a 1-hour duration at 20 psi residual pressure must be available before any combustible material is placed on the job site. 3. Provide or show there exists a water system capable of providing a gpm fire flow of 2500 gpm for multifamily dwellings. 6 � � PLANNING COMMISSION RESOLUTION NO. 2479 � 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 13R 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 dweltings. (13 R and attic protector) 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 2A108C extinguisher per 3000 square feet and not over 75' walking distance. A "K" type fire extinguisher is required in all commercial kitchens, mount CU exterior of building. 10. All buildings shall have illuminated addresses of a size approved by the city. 11. All fire sprinkler systems, fixed fire suppression systems and alarm ptans must be submitted separately to the Fire Marshal for approval prior to construction. 12. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. Buildinq and Safetv Department: 1. Project must conform to the current State of California Codes adopted at the time of plan check submittal. The following are the codes enforced at this time: 2007 CALIFORNIA BUILDING CODE (Based on 2006 IBC) 2007 CALtFORNIA MECHANICAL CODE (Based on 2006 UMC) 2007 CALIFORNIA PLUMBING CODE (Based on 2006 UPC) 2007 CALIFORNIA ELECTRICAL CODE (Based on 2005 NEC) 2007 CALIFORNIA ENERGY CODE 2007 CALIFORNIA BUILDING STANDARDS ADMINISTRATIVE CODE 2007 CALIFORNIA FIRE CODE 7 I PLANNING COMMIS��JN RESOLUTION NO. 2479 - 2. An approved automatic fire sprinkler system shall be installed as required per the City of Palm Desert Code Adoption Ordinance 1145. 3. Compliance with Ordinance 1124, Local Energy Efficiency Standards. The requirements are more restrictive than the 2007 California Energy Code. Please obtain a copy of the Ordinance for further information. 4. A disabled access overlay of the precise grading plan is required to be submitted to the Dept of Building and Safety for plan review of the site accessibility requirements as per 2007 CBC Chapters 11 A & B (as applicable) and Chapter 10. 5. All exits must provide an accessible path of travel to the public way. (CBC 1024.6 & 1127B.1) 6. Detectable warnings shall be provided where required per CBC 11336.8 and 11278.5 (7). The designer is also required to meet all ADA requirements. Where an ADA requirement is more restrictive than the State of California, the ADA requirement shall supercede the State requirement. 7. Provide an accessible path of travel to the trash enclosure. The trash enclosure is required to be accessible. Please obtain a detail from the Dept of Building and Safety. 8. All contractors and subcontractors shall have a current City of Palm Desert Business License prior to permit issuance per Palm desert Municipal Code, Title 5. 9. All contractors and/or owner-builders must submit a valid Certificate of Worker's Compensation Insurance coverage prior to the issuance of a building permit per California Labor Code, Section 3700. 10. Address numerals shall comply with Palm Desert Ordinance No. 1006 (Palm Desert Municipal Code 15.04.110 through 15.04.160). Compliance with Ordinance 1006 regarding street address location, dimension, stroke of line, distance from street, height from grade, height from street, etc. shall be shown on all architectural building elevations in detail. Any possible obstructions, shadows, lighting, landscaping, backgrounds or other reasons that may render the building address unreadable shall be addressed during the plan review process. You may request a copy of Ordinance 1006 from the Department of Building and Safety counter staff. // 8 �� , � CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT REQUEST: Recommendation to City Council for approval of a Precise Plan/Conditional Use Permit and Development Agreement to construct a 20-unit senior citizen apartment project located at 73-582 Catalina Way. SUBMITTED BY: Kevin Swartz Assistant Planner APPLICANT: Bernard Investment Group/ Ken Bernard 3991 Mac Arthur Blvd, Suite 350 Newport Beach, CA 92660 CASE NO: DA, PP/CUP/ 08-50 DATE: July 1, 2008 I. EXECUTIVE SUMMARY: Approval of staff's recommendation will allow the applicant to utilize the Senior Housing Overlay provisions to construct 20 studio apartments on a vacant parcel on the north side of Catalina Way. The action by the Planning Commission is a recommendation to the City Council. II. BACKGROUND: A. PROPERTY DESCRIPTION: The project is located at 73-582 Catalina Way, east of San Pablo and west of Portola Avenue. The property, totaling approximately .81 of an acre, is a relatively flat rectangular shape lot and is surrounded by residentially zoned properties. The lot has 114.65 feet of frontage and is 311 feet in length. The applicant is currently in the process of demolishing the existing residential home located on the property. Access is from Catalina Way. B. Zoning and General Plan Designation: 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. . � STAFF REPORT DA, PP/CUP 08-50 July 1, 2008 Page 2 of 8 C. ADJACENT ZONING AND LAND USE: North: R-3, S.O. / Single Family South: R-2, S.O. / Singie Family East: R-2, S.O. / Catalina Gardens Apartments West: R-3, S.O. /Catalina Palms Apartments D. 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 person per acre basis. This property, with 35,283 square feet (.81 acres), is permitted up to 24 people per acre. 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 20 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 one space per unit for project restricted to 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 residents. For projects between ten and 99 units, ten percent of the units must be affordable by lower-income residents and ten percent by moderate-income residents. III. PROJECT DESCRIPTION: The applicant is requesting approval of a 20-unit senior complex. There are two proposed buildings located in the rear of the properry totaling 12,500 square feet with ten units per building. Parking for the project is located in the front, with 21 carports covered with alum-wood trellises above. The site also features outdoor amenities. The project includes a draft development agreement that will be executed by the applicant to comply with the affordability requirements of the Senior Housing Overlay District. A. SITE PLAN: The site plan is designed with two driveways located on Catalina Way. The main driveway has full egress and ingress with a width of 21 feet. The second driveway is exit only with a width of fourteen feet. Directly in the middle of the proposed driveways is a landscape median approximately 90 feet long with a path of travel that connects to the sidewalk that is ADA (� � STAFF REPORT DA, PP/CUP 08-50 July 1, 2008 Page 3 of 8 compliant. The main driveway leads to 10 covered parking spaces on the southeast side circling around the landscape median to 11 covered parking spaces that lead to the second driveway. The 20 units are located on the north end of the property. The project is designed with two buildings totaling 10 units each. The 10 units are located on either side of a common landscape area, elevator and stairwell, water feature and a covered patio area with a BBQ stand. All of the units will face the common area of the project. The property will be surrounded by a six- foot high block wall. B. BUILDING DESCRIPTION: The proposal is for 20 units in two buildings that are two-stories high, measuring 24 feet to the highest point. Roofline heights vary on the buildings and range in height from the predominant building line of twenty feet high. A condition of approval has been placed on the project requiring all roof mounted equipment to be screened from public view. The buildings offer an etevator or stairs to get from the first floor to the second floor. All of the 625 square foot units are studios. Each floor plan includes a great room, kitchen, bathroom, bedroom and a walk-in closet. The second floor units are designed with a rail outside of each unit. The buildings consist of a series of defined modulations including multiple planed facades (recessed entries, trellis, and pop-outs), gable roof pitch, and entry ways. This style is not found in the immediate area, but is a style that will enhance the surrounding neighborhood. The buildings proposed architecture is described in detail in the following section. C. ARCHITECTURE: The project will incorporate a Modern architectural style utilizing concrete tile roof with Belardo blend, earth-toned colors, recessed windows, vertical columns and multiple planed facades (recessed entries and pop-outs). Surface finishes consist of smooth and rough plaster and stucco, stone veneer and river rock earth blend. The exterior paint will be Bauer "Oak Tone" for the main color and Bauer "Bisque" for accent color. The doors and trim will be Sherman Williams "Mesquite". The pavers and stamped concrete for the walkways are "Country Store" and "Oatmeal". � STAFF REPORT DA, PP/GUP 08-50 July 1, 2008 Page 4 of 8 At its meeting of May 16, 2008 the Architectural Review Commission (ARC) reviewed the project. The Commission generally supported the concept and offered comments. The Commission granted preliminary approval subject to the submittal of a site plan, materials board, landscape plans, construction plans and clarification of details. The construction drawings will be presented to the ARC for a final approval to make sure they are consistent with the preliminary approval. The Commission agreed that the project architects have provided a well designed project, and the project was approved on a 5-0-0-1 vote, with Commissioner Hanson absent. D. Landscaping: The landscape palette will focus on a desert theme, with plants requiring minimal water usage. The project exceeds landscape requirements in regards to proposed landscape percentage. Preliminary approval from the City's Landscape Specialist has not been approved at this time. A condition of approval has been placed on the project that all lighting for the facility will be strictly on site and will not intrude onto surrounding properties. Another condition has been placed that the plant selection is in conformance with the City's Landscape Maintenance Guide and recommendations. E. LAND USE COMPATIBILITY: The proposed 20-unit senior complex is located in an R-2, S.O. zone. The Residential Single Family, Senior Overlay zone allows flexibility with a variety of types of dwellings at a medium range of population densities, and also to provide optional standards and incentives for the development of a wide variety of specialized housing designed and restricted to residents over the age of 55. The proposed project is surrounded by residentially zoned properties. To the north and south are existing single family residents, and to the east and west are existing multi-family apartments. It has been shown that the proposed use is compatible with the other residential uses in the surrounding area. , ( I �� STAFF REPORT DA, PP/CUP 08-50 July 1, 2008 Page 5 of 8 IV. ANALYSIS: The following table cornpares the development standards of the zone with the proposed project. STANDARD R2, SO REQUIREMENTS PROJECT Number of Units 20 Studios 20 studios Minimum Unit Size 450 square feet 625 square feet Building Coverage 50% 19.45% 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 20 feet Side Yard Setbacks 14 feet combined/ min. of 5 feet 7'-6", 7'-6" Parking 20 21 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 development agreement is consistent with current housing laws and requirements of the Redevelopment Agency. FINDINGS FOR APPROVAL OF A PRECISE PLAN / CONDITIONAL USE PERMIT: 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. The proposed project is zoned R-2, with a Senior Housing Overlay and the district allows flexibility with a variety of types of dwellings at a medium range of population densities, and also to provide optional standards and incentives for the development of a wide variety of specialized housing designed and restricted to residents over the age of 55. The proposed project is a 20-unit affordable, infill senior complex for residents over the age of 55, which is in accord with the objectives of the Zoning Ordinance and is consistent with the uses outlined in section 25.38.030 Conditional uses. ( , STAFF REPORT DA, PP/CUP 08-50 July 1, 2008 Page 6 of 8 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. The project will be a new development in an older area of the community and as such may lead to other properties upgrading. The proposed project as conditioned will comply with current Building and Safety Codes, Fire Department and Reviewed by the City's Engineering Department for compliance with City Ordinance. The use of the 20-unit senior comp/ex is permitted within the R-2, Senior Overlay zone subject to a Conditional Use Permit (for the land use) and is consistent with the intent of the City's Zoning Ordinance as described in the staff report. The site meets setbacks, lot coverage, building height, land use, and parking such that it will not be detrimental to the public interest, health, safety, welfare and will not be materially injurious to properties or improvements in the vicinity as described in more detail in the Staff report. A condition of approval has been placed on the project which will require the project proponent to construct all necessary on and off-site infrastructure to provide utilities to the proposed project prior to the issuance of Building Permits. Water, sanitation and public utilities and services are available in Catalina Way, a public street. � 3. The proposed precise plan / conditional use will comply with each of the applicable provisions of this title, except for approved variances or adjustments. 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. Addifionally, conditions have been added to the project to ensure thaf all the minimum requirements of the Palm Desert Municipal Code are met, including building, landscaping, public works, and fhe fire department conditions. The project requires no variances or adjustments. 4. The proposed precise plan / conditional use complies with the goals, objectives, and policies of the city's adopted General Plan. A primary objective stated in the Land Use Element of the General Plan under Residential Goals, Policies and Programs is Goal 1, which states a balanced range of housing rypes, densities and affordabilities that accommodate existing and future residents across a/l socio-economic � �- STAFF REPORT � DA, PP/CUP 08-50 July 1, 2008 Page 7 of 8 sectors of the community. Policy 3 of the General Plan Land Use Element is that the City shal!encourage in-fill development on lands located adjacent to or near existing residential areas and utilities to maximize the efficient utilization of land and infrastructure. Policy 8 of the General Plan Land Use Element is low income/affordable housing shall not be located within one area of the community, but shall be dispersed where feasible, appropriate, and compatible with surrounding land uses. This project promotes a land use that is consistent with the goals, policies, and programs of the Genera/ P/an. The project is consistent with the General Plan because the projecf proposes a 20-unit affordable, infill senior comp/ex, which is compatible with the existing uses within the surrounding area, and offers an excellent service to the community. V. CONCLUSION: The proposed 20-unit senior complex conforms to all zoning regulations. The design and layout of the proposed project will not interfere with the use and enjoyment of the existing neighborhood, because the site is consistent with the other surrounding properties to the north and south is existing single family residential properties, and to the east and west are existing multi-family residential apartments. The architecture is a style that will enhance the surrounding neighborhood. It can be concluded that the proposed use would be a favorable addition to the vicinity. VI. ENVIRONMENTAL REVIEW: The project is a Class 32, Categorical Exemption for the purpose of CEQA and no further review is necessary. VII. RECOMMENDATION: That the Planning Commission adopt the findings and adopt Planning Commission Resolution No. , recommending to City Council approval of Case No. DA, PP/CUP 08-50, subject to conditions attached. � STAFF REPORT DA, PP/CUP 08-50 July 1, 2008 Page 8 of 8 VIII. ATTACHMENTS: A. Draft Resolution B. Legal Notice C. Draft Development Agreement D. Draft Housing Element E. Architectural Review Commission Notice of Action and Minutes F. Plans and Exhibits Submitted By: Department Head: Kevin Swartz Lauri Aylaian Assistant Planner Director, Community Development Approval: Homer Croy ACM, Develo ment Services �� CITY OF PALM DESERT INTEROFFICE MEMORANDUM TO: Department of Community Development/Planning Attention: Kevin Swartz FROM: Phil Joy, Associate Transportation Planner SUBJECT: PP 8-50 Bernard Catalina Apts Conditions of Approval DATE: June 17, 2008 GENERAL REQUIREMENTS 1. All landscape maintenance shall be performed by the property owner and the applicant shall enter into a landscape maintenance agreement with the city for the life of the project, consistent with the Municipal Code provisions and the approved landscaped plan. 2. A complete preliminary soils investigation, conducted by a registered soils engineer, shall be submitted to, and approved by, the Department of Public Works prior to the issuance of a grading permit. BONDS AND FEES 3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55, shall be paid prior to issuance of grading permit. 4. The project shall be subject to Transportation Uniform Mitigation Fees ( TUMF� Payment of said fees shall be at the time of building permit issuance. 5. A standard inspection fee shall be paid prior to issuance of grading permits. 6. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code shall be paid prior to issuance of grading permits. DESIGN REQUIREMENTS 7. Storm drain design and construction shall be contingent upon a drainage study prepared by a registered civil engineer that is reviewed and approved by the Department of Public Works prior to start of construction. 8. Complete grading and improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval prior to issuance of any permits. 9. Any and all offsite improvements shall be preceded by the approval of plans and the issuance of valid encroachment permits by the Department of Public Works. 10. Pad elevations are subject to review and modification in accordance with Chapter 26 of the Palm Desert Municipal Code. �� 11. Landscape installation shall be drought tolerant in nature and in accordance with the City_s Water Efficient Landscape Ordinance ( 24.04) . 12. Landscape plans shall be submitted for review concurrently with grading plans. 13. Full public improvements, as required by Section 26 of the Palm Desert Municipal Code, shall be installed in accordance with City standards including: . Installation of 6' sidewalk with dedication or easement • Rights-of-way necessary for the installation of the above referenced improvements shall be dedicated to the city prior to the issuance of any permits associated with this project. CONSTRUCTION REQUIREMENTS 14. All public and private improvements shall be inspected by the Department of Public Works and no occupancy permit shall be granted until the improvements have been completed. 15. Applicant shall comply with provisions of Palm Desert Municipal Code Section 24.12, Fugitive Dust Control as well as Section 24.20, Storm water Management and Discharge Control. 16. Prior to the start of construction, the applicant shall submit satisfactory evidence to the Director of Public Works of intended compliance with the National Pollutant Discharge Elimination System ( NPDES) General Construction Permit for storm water discharges associated with construction. Developer must contact Riverside County Flood Control District for informational materials. SPECIAL CONDITIONS 17. Westernmost driveway shall be narrowed to 12' and signed as "Exit Only" � Phil Joy i � �'`f ``".�"� Patm D ' � ^ �"�� rx � esert Flre Department �� Fire Prevention Bureau � In cooperation�rith Ri�•erside Counth�Fire Department 73710 Fred Wanng Dr. Suite !02 Palm Ik,�ert Ca 92260 760-346-187O Fa��(�O-779_1959 Pa1m Desert Fire Marshal's Office 73710 Fred Waring Drive#102 Palm Desert CA 92260 (760)346-1870 TO: �-2v i 1� t�,�7�L.t.L DATE: Zt Ip�I,C� REF: T.�►� ��l G�c� (�S'�.�0 If circled. conditions aanlv to nroiect � With respect to the conditions of approval regarding the above referenced project, the fire department recommends the foqawing fire protection measures be provided in accordance with City Municipal Code,NFPA, CFC, and CBC or any recognized Fire Protection Standards: The Fire Department is required to set a minimum fire flow for the remod i or construction of 1 buildin er I7FC arti le 87. A fire flow of 1500 gpm for a 1-hour duration at 20 psi residual pressure mast be available before any combustible materiat is placed on the iob site. - Provide vr shvw there e.rists a ivater system cupable af providing a gpni floiU c f• 3. 1500 gpm for single family dwellings � 2500 gpm for multifamily dwellings 5 3000_gpm for commercial buildin�s The required flre flow shall be available from a wet barrel Super Hydrant(s)4"g 2 '/x"a 2 Y", located not less than 25' nor more than: 6. 200' from any portion of a single famity dwelling measured via vehicular travelway 0 165' from any portion of a rnultifamity dwelling measured via vehicular travelway 8. 150' from any portion of a commercial building measured via vehicular travelwav � Water Plans must be approved by the Fire Marsha! and include verification that the water system wili nroduce the reauired fire flow 10. Please be advised the proposed project may not be feasible since the existing water mains will not meet the reauired fire flow. � (,� .. r.:: t � �3'R �. Install a complete NFPA�3-fire sprinkler system. This applies to all buildings with a 3000 square foot totat cumutative tloor area. The Fire Marshal shall apprnved 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 h drant. Eaem ted are on and two fami dwellin . All valves controlling the water supply for automatic sprinkler systems and Water-flow switches shall be monitored and alarmed per CBC Chaoter 9. � Install a tire alarm system as reauired bv the UBC Cha�ter,_3_ i� Install portable fire eatinguis6ers per NFPA 10, but not leas than one 2AlOBC egtinguis6er per 3000 square feet and not over 75' walking distance.A "K" type fire eatinguisher is required in all commercial kitchens. � 15.. Instali a Hood/Duct automatic fire eatinguishing system per A 96 in ail public and private cooking operations eacept singl�family residential usage. 16. Install a dust collecting system per CFC Chapter 76 if conducting an _ ooeration that uroduces airborne narticles 17. All building shall be accessible by an aA-weather roadway eztending to within 150' of all portions of the exterior walls of the first story, The roadway shall aot be leas than 24' of unobstructed widt6 and 13' 6"of vertical clearance. W6ere p�rallel 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 tu�rnn-around 55' in industrial develooments. ,__ 18. Whenever access into private property is controlled through use of gates, barriers or other means provisions shall be made to install a "Knoz Boa" key over-ride system to allow for emergency ve6icle access. Minimum gate width shaU be 16"with a minimum vertical clearance Qf 13'6". 19. A dead end single access over 500' will require a secondary access, sprinklers or other mitigative measures approved by the Fire Marshal. Under no circumstance shal! a dead end over 1300' 6e acceoted. 20. A second access is required. This can be accomplished by two main access points from a main roadway or an emergency gate from an __ adioininQ devetonment 21. This project may require licensing by a state or county agency, to f . ,'" �� , � facilitate plan review the applicant shall prepare and submit to the Fire Marshal a tetter of intent detailing the proposed usage and occu an e. 2 All buitdings shall have illuminated addresses of a size approved by the ci . 2 All fire sprinkler systems, fiaed fire suppression systems and alarm plans must be submitted separately to the Fire Marshal for approval ri r to constru tion. 4 Conditions subject to change with adoption of new codes, ordinances, laws, or when building permits are not obtained within twelve months. All questions regarding the meaning of these conditions should be referred to the Fire Marshal's Office at(760)346-1870 in Palm Deser� Location: 73-710 Fred Waring Drive#102.Palm Desert CA 92260 Other; 3c., ►J ��sov`� �Sg 1 Q�.�,� �� i � �u.�► a 1 l2 ��c.7 - �_. Uu ��•�'�sn� Sincerely, Jorge Rodriguez Fire Marshal f� ,. /��"� CITY OF PALM DESERT / � BUILDING & SAFETY DEPARTMENT INTEROFFICE MEMORANDUM To: Kevin Swartz, Assistant Planner From: Sam Szymanski, Senior Plans Examiner Date: June 18, 2008 Subject: DA, PP/CUP 08-50/Bernard investment Group I have reviewed the information provided and have the following comments: 1. Project must conform to the current State of California Codes adopted at the time of plan check submittal. The following are the codes enforced at this time: 2007 CALIFORNIA BUILDING CODE (Based on 2006 IBC) 2007 CALIFORNIA MECHANICAL CODE (Based on 2006 UMC) 2007 CALIFORNIA PLUMBING CODE (Based on 2006 UPC) 2007 CALIFORNIA ELECTRICAL CODE (Based on 2005 NEC) 2007 CALIFORNIA ENERGY CODE 2007 CALIFORNIA BUILDING STANDARDS ADMINISTRATIVE CODE 2007 CALIFORNIA FIRE CODE 2. An approved automatic fire sprinkler system shall be installed as required per the City of Palm Desert Code Adoption Ordinance 1145. 3. Compliance with Ordinance 1124, Local Energy Efficiency Standards. The requirements are more restrictive than the 2007 California Energy Code. Please obtain a copy of the Ordinance for further information. 4. A disabled access overlay of the precise grading plan is required to be submitted to the Dept of Building and Safety for plan review of the site accessibility requirements as per 2007 CBC Chapters 11 A & B (as applicable) and Chapter 10. 5. All exits must provide an accessible path of travel to the public way. (CBC 1024.6 & 1127B.1) G:\Planning\Kevin Swartz\Word1DA,CUP,PP OS-50 Catalina\building conditions.dce 4 � 6. Detectable warnings shall be provided where required per CBC 11338.8 and 1127B.5 (7). The designer is also required to meet all ADA requirements. Where an ADA requirement is more restrictive than the State of California, the ADA requirement shall supercede the State requirement. 7. Provide an accessible path of travel to the trash enclosure. The trash enclosure is required to be accessible. Please obtain a detail from the Dept of Building and Safety. 8. All contractors and subcontractors shall have a current City of Palm Desert Business License prior to permit issuance per Palm desert Municipal Code, Title 5. 9. All contractors and/or owner-builders must submit a valid Certificate of Worker's Compensation Insurance coverage prior to the issuance of a building permit per California Labor Code, Section 3700. 10. Address numerals shall comply with Palm Desert Ordinance No. 1006 (Palm Desert Municipal Code 15.04.110 through 15.04.160). Compliance with Ordinance 1006 regarding street address location, dimension, stroke of line, distance from street, height from grade, height from street, etc. shall be shown on all architectural building elevations in detail. Any possible obstructions, shadows, lighting, landscaping, backgrounds or other reasons that may render the building address unreadable shall be addressed during the plan review process. You may request a copy of Ordinance 1006 from the Department of Building and Safety counter staff. 11 . Please contact Debbie Le Blanc, Land Management Specialist, at the Department of Building and Safety (760-776-6420) regarding the addressing of all buildings and/or suites. G:\Planning\Kevin Swartz\Word1DA,CUP,PP 08-50 Catalina\building conditions.doc ( � ARCHITECTURAL R�VIEW COMMISSION � . MINUTES MAY 13, 2008 B. Preliminary Plans: 1. CASE NO: DA/PP/CUP 08-50 APPLICANT (AND ADDRESS): BERNARD INVESTMENT GROUP INC., 3991 MacArthur Bivd. #340, Newport Beach, CA 92660 NATURE OF PROJECT/APPROVAL SOUGHT: Preliminary approval to develop and construct 20 studio senior citizen apartments. LOCATION: 73-582 Catalina Way ZONE: R3 SO Mr. Swartz presented the project and stated that the applicant was present to explain the changes made since the previous meeting. Mr. Ken Bernard, owner, stated that they have tried to address the Commission's concerns from the previous meeting. On the rear patios they put a slanted roof that would also match the roof above allowing five feet of coverage. They added additional punch outs and explained that each unit has a tremendous amount of sheer. He informed the Commission that after checking with their engineer they were unable to penetrate the sheer wall. Wherever there are punch outs they will be putting in either a large 16 x 16 piece of slate or travertine stone that will add additional color. They have added additional pop outs where the green is and different stucco types; smooth, sprayed, raked, and pebbled. Also where the green is there would be six inch pop outs with a slant to make it a little more contemporary. Mr. Bernard stated that at the previous meeting the Commission had concerns with the air conditioning units requesting that they fit within the parapets. He indicated that they found a ductless heat pump unit that is only eight inches high. The actual size is 8 inches high x 30 inches deep x 24 inches wide and can be laid horizontally on the roof. They wanted to keep from putting condensers down below because of the noise and trying to hide them and found this ductless air conditioning and heating system. G:1PlanninglJanine Judy\Word FilesWRC Minutes120081AR080513.min.doc Page 11 of 15 1 ' ARCHITECTURAL REVIEW COMMISSION �/ � MINUTES MAY 13, 2008 The Commission discussed the ductless system. Mr. Bernard stated that there would be finro units for each apartment. Commissioner Vuksic asked what type of base this unit required. Mr. Bernard answered that it would be a 2 x 2 angle iron base. He also stated that it was a heat pump system and instead of having a split system where you have a furnace with cooling coils and a fan this is all encased in a 8 inch high x 24 inch deep x 24 inch wide ceiling mounted system. Commissioner DeLuna complimented Mr. Bernard on his attention to detail and stated that it made a huge difference from what was submitted the first time. She asked if there were amenities offered with this project, like a manager's office and an activity pool. Mr. Bernard stated that there wasn't an onsite manager's office or a pool, but there was a BBQ area and a sitting area. Commissioner DeLuna suggested having a �circuit training walkway around the exterior edge available to the tenants to avoid having them walk right through the driveway after being dropped off by a senior vehicle. Mr. Bernard believed that they could do that because they have five feet available to them with this project. Ms. Lauri Aylaian, Director of Community Development stated that by doing that they would lose five feet of landscaping around the perimeter. Mr. Felipe Gonzalez, Design Manager, stated that they would have to check with the landscape specialist. Mr. Bernard stated that that was one of the issues that they had on the Santa Rosa project, but Building and Safety indicated that they do a sidewalk on the exterior perimeter so the tenants wouldn't have to come up through the center. Mr. Bagato stated that a meeting will be scheduled with Public Works, Building and Safety, Fire and Mr. Bernard because there were issues with the dual driveways and the placement of a fire hydrant. The issue of the circuit walkway could be discussed at that time as well as the loss of landscape. The Commission discussed the finro single loaded parking areas and making it more efficient. Commissioner DeLuna stated that she would like to see some type of an activity pool and some sort of a meanderin g pathway throughout the project so the tenants would have some sort of activity. Mr. Bernard stated that the complex is about 200 feet from the Joslyn Senior Center and the Catalina Gardens. Ms. Aylaian stated that in reference to amenities we would get more involved if this was going to be owned and operated by the City, but for private G:�PlanningWanine Judy\Wortl Files�ARC Minutes120081AR080513.min.doc Page 12 of 15 r ; ` ARCHITECTURAL REVIEW COMMISSION � MINUTES MAY 13, 2008 developers coming in and proposing new projects, the Architectural Review Commission (ARC) would take a look at the aesthetics and architecture. If there were amenities that needed to be addressed it would be a Planning Commission issue. So the focus at ARC would be more on the architecture. Commissioner Lambell stated that with these current changes this is a much more interesting looking building than the previous submittal. She asked what the horizontal green area was. Mr. Bernard stated that was the new rake look because they were trying to have different textures to give it more definition; raked, sprayed, smooth and pebbled. The green is also a pop out coming out six inches and the different colors will delineate the three dimensional aspect to it along with each unit being set back five feet from the other. Commissioner Gregory asked if the windows were set in so they weren't flush with the bui�ding. Mr. Bernard answered that they provided a six by around the window for them to pop out all the way around. Commissioner Vuksic had concerns with the depth represented on the floor plan, the different plaster textures, different planes and the columns. He wanted to st�te for the record that this will be a real problem with marrying all these materials and thought they will be rnaking decisions in the field just to get it done He felt that they will end up with pretty odd relationships with the materials. Commissioner Van Vliet stated that unless it is drawn on the plans it is not going to happen in the field. Commissioner Vuksic stated that it was approvable but felt that it was poorly detailed. Mr. Bagato asked if those were details that they wou�d see on construction drawings. Commissioner Vuksic stated that thEy could check the drawings and point these items out on the construction drawings but right now it looks like they are not sure what the answers are even in the design drawings. He explained that he has seen this many times where the decisions are being made in the field by the framer and the subs and the project ends up being not what you would expect. Commissioner Van Vliet had concerns with the veneer and the two inch aluminum fry reglet and stated that those were the kind of details that needed to be addressed now and not in the field. G:�PlanrnngWanine Jutly�Word Files�ARC Minules12008WR080513.min.doc Page 13 of 15 f - 1 ` ARCHITECTURAL REVIEW COMMISSION � MINUTES MAY 13, 2008 Commissioner Gregory stated that the applicant has done an unusually good job with coming back with an approved plan pursuant to the Commission's request and suggested that this be continued subject to bringing back material samples, and to show some of the details that the Commission can feel comfortable with before moving forward. Mr. Bernard stated that he didn't realize that at this stage they needed such detail, but he informed the Commission that the construction drawings would include all the detail that was being requested. Mr. Bagato stated that construction drawing details aside, the floor plan should reflect how the building will come together. Commissioner Vuksic expressed to Mr. Bernard that he follow through on what they were representing on the floor plan and really make sure how they are marrying all these materials together. The floor plan should reflect the changes in the plane so the Commission can see that they thought about it and made decisions about it. Mr. Bernard stated that at this stage they were trying to be conceptual. Commissioner Gregory stated that it was easier to have any misunderstandings clarified now so that when they go into working drawings hopefully it's a rubber stamp at that point. Com�missioner Gregory asked the Commission if the building design in terms of a preliminary submittal was okay. The Commission agreed that it was. Commissioner Vuksic stated that he was okay with it going to working drawings and felt that the Commission voiced their concerns that the applicant needed to work out the details. He informed the applicant to be aware of that when he is making their working drawing submittal so they follow through on this design that they so obviously worked very hard on. Action: It was moved by Commissioner Hanson and seconded by Commissioner Lambell, to grant preliminary approval subject to the submittal of a site plan, materials board, landscape plans, construction plans and clarification of details. Motion carried 5-0-0-1, with Commissioner Hanson absent. G:\Planning\JaNne Judy\Word FilesWRC Minutes�2008V+ROB0513.min.doc Page 14 of 15 - ARCHITECTURAL R�viEW COMMISSION � * MINUTES APRIL 22, 2008 Action• It was moved by Commissioner Hanson and seconded by Commissioner DeLuna, to grant an approval subject to landscape review by Landscape Specialist. Nlotion carried 6-0. 3. CASE NO: DA/PP/CUP 08-50 APPLICANT (AND ADDRESSI: BERNARD INVESTMENT GROUP INC., 3991 MacArthur Blvd. #340, Newport Beach, CA 92660 NATURE OF PROJECT/APPROVAL SOUGHT: Preliminary approval to develop and construct 20 studio "senior citizen" apartments. LOCATION: 73-582 Catalina Way ZONE: R3 SO Mr. Swartz presented and summarized the project. This plan will eventually go for a conditional use permit to Planning Commission and to the Council. He indicated that the applicant had to change the site plan because they had only one entrance and the Fire Department wanted them to have two. The architect was in attendance to discuss the project with the Commission. Mr. Ken Bernard, Developer, stated that the only change that has been made from the previous plans, which were approved several years ago, was the addition of the elevator. The Commission reviewed and discussed the roof height, access to the roof, the safety of the roof ladder, the parapet heights, and the screening of the mechanical equipment. The Commission was concerned with the height of the ladder and suggested making the vertical element taller. They were also concerned with the mechanicals being visible from the second floors of neighboring properties and requested that the equipment be below the top of the parapet. Commissioner Vuksic felt that the architecture was marginal and expressed that if details like having units not properly screened or that are visible, then it's not an acceptable project. He stated that the Commission had to be comfortable with that aspect of the project. He indicated that they may have to extend the height of the parapets to cover the mechanicals. G:\PlanninglJanine JudylWord FileslARC Minule512008�AR080422.min.doc Page 9 of 11 ; ARCHITECTURAL RE�►�rW COMMISSION � , MINUTES APRIL 22, 2008 Commissioner DeLuna felt that it didn't have a lot of relief and appeared almost like a railroad car; a motel more or less. Mr. Bernard stated that each unit was set back five feet from the other one. The Commission discussed the windows on the units and suggested having more attention to detail; more stonework and more interest. Commissioner Hanson discussed the plans with the architect, Mr. Felipe Gonzalez, and made several suggestions. The Commission reviewed what appeared to be little windows with glass block. Mr. Gonzalez indicated that they were foam punch-outs. Commissioner Hanson suggested that it be glass block so that there could be natural light coming into the closet area. Mr. Bernard discussed keeping the cost down on the units because these were affordable senior apartments. Commissioner Gregory stated that if they were going to have the pop outs that it be something that would have a feeling of purpose to it. Commissioner Vuksic discussed the floor plan with the applicant and stated that with the staggered floor plan each of these boxes were on their own to some extent, as far as shear; so you may need some of those walls to give you that shear resistance. Mr. Bernard stated that these were 600 square foot units with only 24 feet of wall and only eight feet of wall that is not sheared. Every other wall is double sheered in order for all of this to be structurafly sound. Commissioner Vuksic stated they would have to have an understanding of what they would be getting into structurally to keep things economical. The challenge is trying to take the same basic materials and things, and arranging them in a way that is aesthetically pleasing, Action: It was moved by Commissioner Vuksic and seconded by Commissioner Van Vliet, to grant a continuance subject to comments made by the Commission. Motion carried 6-0. G:1PlanronglJanine Judy\Word FdeSURC Minutes\200BWR080422.rtvn.doc Page 10 of 11