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HomeMy WebLinkAboutRes 2012-67 Ord 1251 DA 11-516 PP 98-21 Amend 2 and TTM 36404 Villa Portofiono - VP Builders LLCCITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT REQUEST: CONSIDERATION OF MODIFICATIONS TO THE PRIOR APPROVALS FOR VILLA PORTOFINO (SOUTHWEST CORNER OF PORTOLA AVENUE AND COUNTRY CLUB DRIVE) INCLUDING: A CONDITIONAL CERTIFICATE OF COMPLIANNCE TO CONFIRM THE PRIOR SUBDIVISION OF A PORTION OF THE PROPERTY; A TENTATIVE TRACT MAP; A MODIFIED PRECISE PLAN; AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT; AND ARCHITECTURAL ELEVATIONS FOR 72 NEW CONDOMINIUM / VILLA UNITS ON LOT NO. 5 OF THE PROPOSED MAP SUBMITTED BY: Kevin Swartz, Assistant Planner APPLICANT: VP Builders, LLC Rudy Herrera, Family Development 76081 Fred Waring Drive Palm Desert, CA 92260 Country Club Drive Investors, LLC Jerry Robinson 28071 Las Brisas Del Mar San Juan Capistrano, CA 92695 CASE NOS: DA 11-516, PP 98-21 Amendment No. 2, and TTM 36404 DATE: October 11, 2012 CONTENTS: Draft Ordinance Exhibit A, Development Agreement Draft Resolution Certificate of Compliance Legal Notice Planning Commission Minutes Dated September 18, 2012 Environmental Assessment & Initial Study Letters from Casablanca Dated August 29, 2012 Letters from the Public Plans and Photo Exhibits Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 2 of 16 October 11, 2012 Recommendation Waive further reading and: Pursuant to Section 25.37.050 of the Palm Desert Municipal Code, find that the Development Agreement is consistent with the General Plan as described in the findings of the City Council Resolution No. 2012_67 , and pass Ordinance No. 1251 to second reading approving Development Agreement 11-516; and 2. Adopt Resolution No.?n19_67 approving modifications to Precise Plan 98-21, a Conditional Certificate of Compliance, Tentative Tract Map 36404, and architectural elevations for 72 new condominium/villa units, subject to conditions attached. Executive Summary On February 25, 1999, the City Council approved Ordinance No. 907 for a Senior Housing Development Agreement, a General Plan Amendment, a Change of Zone, and Precise Plan 98-21, for a Health and Wellness Resort known as Villa Portofino. The project consisted of: a 161-bed skilled nursing facility; a 150-bed assisted living facility; 288 villa units; and 182 casita units. On February 25, 1999, the City Council amended the project by Ordinance No. 1075, to reduce the minimum age limit set forth in the Senior Housing Development from 62 years of age to 55 years of age. In 2008, the original developer/property owner Royce International filed bankruptcy, and left the project with multiple issues. Today there are three different owners, two of whom are requesting to bring the property back into compliance by: amending the Development Agreement and Precise Plan 98-21; submitting a Certificate of Compliance to approve prior subdivisions of the property that don't comply with the Subdivision Map Act; and submitting a new tentative tract map that includes the dedication of Portola Avenue right-of-way, and legalizes parcels that were created without City approval. The original entitlements in regards to density, unit count, setbacks, building height, and parking will remain the same as previously approved. At the September 18, 2012, Planning Commission meeting, VP Builders/Family Development requested an exception to a current moratorium that the City Council approved on February 9, 2012, by Ordinance No. 1232, to allow roof decks on 72 condominium/villa units. The Planning Commission recommended denial of the 72 condominium/villa units, with the roof decks. The applicant has withdrawn their request for an exception to the moratorium to allow roof decks at this time. After hearing the Planning Commissioners' comments and those of two GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 3 of 16 October 11, 2012 Villa Portofino residents, the applicant wanted more time to study the roof decks. Also, the applicant is going door to door to residents within Palm Desert Greens whose homes are adjacent to Country Club Drive to address any concerns or questions they may have. This request will come back to the City Council at a future date. Plannina Commission Action On September 18, 2012, the Planning Commission recommended approval of: an amendment to the Development Agreement and Precise Plan 98-21; a Certificate of Compliance to approve prior subdivisions of the property that don't comply with the Subdivision Map Act; and a new tentative tract map that includes the dedication of Portola Avenue right-of-way and legalizes parcels that were created without City approval. Also at the Planning Commission meeting, VP Builders/Family Development requested an exception to a current moratorium that the City Council approved on February 9, 2012, by Ordinance No. 1232, to allow roof decks on 72 condominium/villa units on Lot No. 5 of the tentative tract map. The Planning Commission recommended denial of the applicant's request. Members of the public spoke in favor and opposition to the project. After the public hearing was conducted, the Planning Commission approved the project on a 3-0-2 vote with Commissioners DeLuna and Tanner Absent. Public / Planning Commissioners Input: Since the project has been under review, there has been a significant decrease in opposition expressed to the project. Numerous residents within Villa Portofino have signed letters and spoken at the public hearing in support of the project, including the roof decks. Casablanca homeowners' association also submitted a letter in support of the project, and acknowledges that the pad heights may not be graded down to the approved pad heights on the southern most property until construction occurs. The three major concerns expressed from the parties who oppose the project were from a resident within Casablanca regarding the pad heights on the southern parcel, from a resident within Villa Portofino regarding the roof decks, and regarding ownership of Lot No. 2 between JJL Property and VP Builders/Family Development. Ms. Diane Plotkin spoke at the public hearing and said that she has concerns with the pad heights on the southern parcel. She voiced that the pads should come down today rather than when construction occurs. Ms. Gail Christiansen, president of Casablanca homeowners' association, confirmed that a majority of the Casablanca homeowners' issues have been addressed and they support development and the project. As for the proposed roof decks, the applicant presented to the Planning Commission line of sight studies that were not submitted for staff review prior to the meeting. Commissioner Dash stated that under the current moratorium, the roof deck issue is under investigation GAPlanning\Kevin Swartz\Word\Precise PlansWilla Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 4 of 16 October 11, 2012 and/or study by City staff. Commissioner Dash felt it would be inappropriate for the Planning Commission to make a recommendation when the roof decks are being studied, and staff has a broader understanding of the values, the virtues, and the liabilities of the roof decks throughout the City. Commissioner Limont stated the roof decks are not a necessary part of the design, and are not currently allowed under the moratorium. Commissioner Campbell stated that the existing Villa Portofino buildings are excellent the way they are, and do not need to be changed. Commissioner Campbell also concurred with the other Commissioners regarding the moratorium on roof decks. Mr. Tom Tokheim, JJL Property Investments, who is one of the owners of the southern parcel abutting Casablanca, stated that he has legal representation and consultants continuing to work on this project, and that there is a difference of opinion regarding ownership. He believes that he owns the entire parcel Lot 2, which is 11.48 acres, and not just the airspace units. Mr. Tokheim feels that they have a right to understand what the agreements are for this parcel. He asked that the matter be continued. Chair Campbell interjected and asked the City Attorney if the project could move forward for consideration or if the matter needed to be continued. Mr. Dave Erwin, City Attorney, responded that there is discretion with the Planning Commission to move forward. He has looked at the ownership issue, and does not believe there is anything that would keep the Planning Commission from making a recommendation to the City Council. The ownership issue will be resolved before anything is done on the property. Mr. Erwin also stated that the information indicates that Mr. Tokheim has an ownership of airspace, and he indicated that the issue has been dealt with for a period of time, not just the last few weeks as indicated by Mr. Tokheim. Architectural Review Commission Action On August 28, 2012, the Architectural Review Commission granted approval of the architectural elevations for the proposed 72 condominium/villa units. The applicant submitted two sets of drawings, one with proposed roof decks and one without. The Commissioners believed that the overall appearances of the buildings were consistent with the existing product. The Commission also preferred the elevations with the proposed roof decks, because they provided an extra architectural element to the buildings. The project was approved on a 6-1-0-2 vote with Commissioner Colombini voting No and Commissioners Gregory and Touschner absent. Commissioner Colombini voted No, because he disliked the arches and the tops of the garage doors, as well as the materials above the doors to the arch. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 5 of 16 October 11, 2012 Background A. Property Description: On February 25, 1999, the City Council approved Ordinance No. 907 for a Senior Housing Development Agreement between the City of Palm Desert and Royce International Investments Company, for a Health and Wellness Resort known as Villa Portofino located on a 75-acre property on the southwest corner of Country Club Drive and Portola Avenue. The Development Agreement was approved along with a General Plan Amendment adding a Senior Overlay, a Change of Zone adding a Senior Overlay designation, and Precise Plan 98-21 for a 161-bed skilled nursing facility, a 150-bed assisted living facility, 288 villa units and 182 casita units. (GPA 98-6, C/Z 98-7, and Precise Plan 98-21) In September of 2000, the City approved Parcel Map Waiver 99-4 adjusting the parcel line and creating a 13.87-acre parcel within the 75 acres, located on the southwest corner of Portola Avenue and Country Club Drive. In 2001, Royce International started construction of 36 villa units and the clubhouse, for which they received final building approvals in 2004. Sometime between 2001 and 2004, Royce International submitted a condominium plan to the Department of Real Estate without City approval. When recorded with the County of Riverside, the condominium plan resulted in four unapproved parcels that still exist today. In 2005, a precise grading plan was approved for Phase 2, located on the southern most part of the parcel, abutting the Casablanca residential development. Approval of the precise grading plan for Phase 2 was granted in 2005, then rescinded in 2008 when discrepancies between the pad elevations shown on the precise grading plan and the mass grading plan were discovered. (The proposed pad elevations, ranging from 219.2' to 222.6', were much higher than the original mass rough grading plan elevations [ranging from 214' to 216] that were approved in 2000.) Between the 2005 approval and the 2008 rescinding of approval, Royce International installed sewer and water lines and graded the pads without permits. Because of the failure to obtain permits, the work is considered to have been performed illegally. Additionally, the higher elevation of the pads caused a problematic transition from Villa Portofino to Casablanca, because the windows of the future casita units would present views directly down into the windows of the latter. Casablanca has also had complaints with blowing sand due to the existing unapproved pad height elevations. In 2006, construction began for 36 casita units and 48 villa units. The 36 casita units received Certificates of Occupancy, while the 48 villa units remain 70 percent completed. Today, VP Builders/Family Development completed the 48 villa units, and has sold approximately 28 units. G'.\Planning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 6 of 16 October 11, 2012 In 2008, the Developer reported that he sold the 13.87-acre site, including the Portola Avenue frontage required to be improved under the Development Agreement. This property transfer was done without the approval of the .City, as is required by the Development Agreement. Sometime after 2008, Royce International filed for bankruptcy and the unapproved parcels became bank -owned by two different banks, and the parcels were sold to new owners. B. General Plan Designation and Zoning: General Plan Land Use Designation: Medium Density (R-M) Zoning Designation: Planned Residential, Senior Overlay (P.R. 5, S.O.) C. Adjacent Zoning and Land Use: North: Planned Residential (P.R. 5) / Palm Desert Greens South: Planned Residential (P.R. 5) / Casablanca East: Planned Residential (P.R. 5) / Silver Sands Racquet Club West: Planned Residential (P.R. 22) / San Tropez Apartments Project Description Two of the three property owners, Country Club Drive Investors LLC and VP Builders/Family Development, are requesting approval to modify and amend the Development Agreement and Precise Plan 98-21, and to submit a new Tentative Tract Map and a Certificate of Compliance. Additionally, VP Builders/Family Development is requesting approval to construct 72 new condominium/villa units on Lot 5 of the proposed tentative tract map. The project will remain as previously approved in regards to (density, setbacks, building height). A. Site Plan: The project will remain the same and consist of four components: skilled nursing, assisted living, condominiums/villas, and casitas. Each product provides progressive levels of senior care, meal services, social and recreational amenities ranging from active independent living to supervised medical care within a relatively low density resort environment. The main entrance to the development is located on Country Club Drive, which is unrestricted and signalized. The entrance is constructed today with gates and a guardhouse. The future secondary access road is on Portola Avenue, but does not exist today. The secondary access road is required by PP 98-21 and the proposed Development Agreement. The future access is through an existing easement between the owners. G:\Planning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 7 of 16 October 11, 2012 Today, the site consists of a clubhouse, 36 casita units, and 84 condominium/villa units. Staff has outlined in sections B-F of the staff report each residential component that was previously approved by the City Council. Each residential component will remain the same as previously approved. B. Skilled Nursing: The skilled nursing facility is located in the northeast project portion while the assisted living is in the southeast portion along Portola Avenue. They are separated by the future secondary access road across the parcel. This one- and two-story facility provides 161 beds for those in need of more constant care and medical attention. The building sets back 140 feet to 260 feet from the Portola Avenue property line, and 120 feet from the Country Club Drive property line. The project was required to provide 40 parking spaces, and the project is providing 110 parking spaces. C. Assisted Living: This one- and two-story structure will have 150 rooms and is designated for those that require a small degree of help in their daily lives. The structure is setback 140 feet to 260 feet from Portola Avenue. There will be a 270-foot setback from Casablanca for the 37-foot lobby as measured from the lowest pad levels that are the same height as the corresponding grade at Casablanca. The project was required to provide 37 parking spaces, and the project is providing 135 parking spaces. D. CondominiumsNillas: These two-story structures will be located on the project's northern portion and setbacks range from 54 feet from property line to 200 feet. The main portions of these buildings are 24 feet in height with some projections extending to 32 feet. The pads for these buildings range from one foot to ten feet below Country Club Drive. Landscape berming, building setbacks and a natural lower grade offset the height of the architectural projections. The units range in size from 900 square feet for the one -bedroom units to 1,200 square feet for the two bedrooms with patios and balconies. Twelve villas per building were approved with elevators to the second floor. The project was approved to provide one parking space per unit. E. Casitas: The single story two -bedroom casitas are in the southern project portion and set back a minimum 32 feet from the south property line bordering Casablanca. The main structures are 15 feet in height with projections extending to 19 feet. The sizes range from 1,400 to 1,800 square feet arranged in a courtyard/duplex fashion with vehicular access into the courtyards for drop-offs. The project was approved to provide one parking space per unit. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 8 of 16 October 11, 2012 F. Clubhouse The existing centrally located 30,000 square foot clubhouse provides many amenities, which make it possible to never leave the premises. Amenities include: a general store; barber/beauty shop; bank; theater; swimming pool; fitness center; pool hall; conference rooms; and a full restaurant. The clubhouse is built at 30 feet in height and set back 680 feet from Country Club Drive and 480 feet from Casablanca. G. Development Agreement: Approval of the project includes a draft Development Agreement between the City of Palm Desert and the applicants. A development agreement provides the City and the applicants with a higher degree of certainty of how the project will be developed, what associated fees and improvements will be required, and assurance of consistency with City policies, ordinances, regulations, and exceptions allowed as part of the zoning ordinance or development agreement. H. Tentative Tract Map 36404: The proposed tentative tract map will create approved parcels by the City and align the parcels with current ownership. Of the proposed tentative tract map, VP Builders/Family Development owns Lots 1, 5, C, D, and F. Country Club Investors LLC owns Lots 3 and 4. JJL Property Investments owns the building pads within Lot 2. Attached to the tentative tract map for approval is a preliminary grading plan. The preliminary grading plan shows finish floor and pad elevations for each lot. On Lot 1, the applicant is requesting to have the ability to drop the pad elevations up to 24". The applicant was anticipating accepting the excess dirt from Lot 2. The applicant and the owner of Lot 2 are still negotiating. If the applicant does not end up taking the excess dirt, then the pad heights on Lot 1 would need to be lowered. The differential will vary at different locations within Lot 1, but may approach 24" in some areas. Palm Desert Municipal Code allows the applicant to change the pad heights no more than plus or minus 6" without Planning Commission approval. The applicant has revised the preliminary grading plan for Lot 1, showing a minimum and maximum finish floor and pad elevations for each unit. Staff has placed a condition of approval on the project that the pad elevations on the precise grading plans shall conform to the table of elevations shown on the preliminary grading plans approved by Planning Commission. Architectural Elevations for the 72 Condominium/Villa units: VP Builders/Family Development is proposing 72 condominium/villa units on Lot No. 5 of Tentative Tract Map 36404. The applicant is proposing six buildings with 12 units per building, which is consistent with the existing approvals. The proposed buildings G:\Planning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 9 of 16 October 11, 2012 will be consistent and match the existing Tuscany architectural style. The stucco, wrought iron treatments, clay tile, and colors will be compatible with the current architecture. The proposed buildings would meet setbacks and building height of 31'2" as approved and built today. The original units were approved with cover carports. The applicant is proposing tandem garages per unit. The existing two-story condominium/villa buildings are in the shape of a horseshoe. The applicant is proposing rectangular buildings. Analysis VP Builders/Family Development is requesting to construct 72 condominium/villa units on Lot No. 5 of the proposed map. The applicant is not requesting modifications to the originally approved development standards at this time. The following table describes the development standards as the project was approved by the City Council. STANDARD CITY COUNCIL PREVIOUS PROJECT APPROVAL Height of Condo/Villa Units 31' 2" 31' 2" 17'4" and 22'3" for towers 17'4" and 22'3" for towers Height of Casita Units 28'- 32' and 37' for the tower 28'- 32' and 37' for the tower above Height of Skilled Nursing / above the lobby the lobby Assisted Living Country Club Drive Setback 54' to 200' 54' Rear Setback (Casablanca) 32' N/A Portola Avenue Setback 140' to 260' N/A Side setback 32' N/A Parking 583 770 Discussion: From 2009 to 2011, staff has met with numerous parties interested in purchasing and developing portions of the original Villa Portofino project. Staff explained to the interested parties the detailed history of the project, and the major issue with the project is that it no longer conforms to the original entitlements approved by the City Council, preventing any new development until changes have been approved by the Planning Commission and City Council. The non-conformance is related to breaches of contract obligations under the existing Development Agreement and the creation of the unapproved parcels. WPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 10 of 16 October 11, 2012 Below is a list that staff created that was provided to potential owner/developers outlining the items that would need to be completed before any new development can occur: 1. A completed tentative tract map with an updated site plan and phasing plan. The tentative map and site plan must include a proposed solution addressing the raised pad heights at the southern end of the property, adjacent to Casablanca. 2. An amended Development Agreement (DA) identifying the owner(s) of each parcel within the entire project, and dividing the rights and obligations created by the DA among the property owners. 3. A schedule outlining when remaining off -site improvements on Portola Avenue and Country Club Drive will be completed and when right-of-way will be dedicated. 4. Approval of secondary access from the Fire Marshal. 5. A Water Quality Management Plan (WQMP) approved by the City Engineer. 6. A hydrology study for entire site. 7. The existing CC&Rs and any proposed modifications thereto. 8. New precise grading plans to match the approved pad heights shown on the revised Tentative Tract Map. 9. An improvement bond for remaining off -site improvements on Portola Avenue. 10. Enclose the remaining portion of the Country Club Drive perimeter wall along the north property line connecting to the fire station. 11. Payment of remaining fees. The drainage fee has been paid for the entire project. All other fees will be applied at permit issuance. As of June 2011, staff has been working with three property owners: Country Club Drive Investors LL, JJL Property Investments LLC, and VP Builders/Family Development in resolving the outstanding issues. On February 7, 2012, the three property owners submitted a complete application for staff review. Staff, City Attorney, and the applicants have been working diligently together in resolving the outstanding issues. The Development Agreement must be amended to include, but not limited to: ownership; amending the CC&R's; construction of the temporary emergency vehicle access road; bonding for Portola Avenue Improvements and the Secondary Access Road Improvements; extension of Country Club block wall; creating City approved parcels through a Conditional Certificate of Compliance and Tentative Tract Map 36404; and coming to conclusion regarding the unapproved pad height elevations on the 11.21-acre parcel abutting Casablanca. G:\Planning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 11 of 16 October 11, 2012 As of July 2012, JJL Property Investment thought they owned the 11.21-acre parcel abutting Casablanca. VP Builders/Family Development received a title report from First American Title Insurance indicating that JJL Property Investment owns only the building pads, and VP Builders/Family Development owns the common area within the 11.21-acre parcel, including the retention basin. VP Builders/Family Development and Country Club Investors LLC submitted a new application, Development Agreement, and Tentative Tract Map without JJL Property who has reported to staff that they are not prepared to develop their property at this time. Staff is processing the application as it was submitted. When JJL Property is ready to build their units, they will submit their precise plan application separately. A. Temporary Emergency Vehicle Access Road: The future secondary access road will be used as a temporary emergency access road until the road is fully improved. The temporary improvements to the emergency vehicle access road across the Portola Parcel to Portola Avenue will be completed prior to issuance of any additional building permits for the Project. The road will also be used for construction access. Staff has placed a condition that the emergency vehicle access road may be used by construction traffic through the use of transponders or other means to actuate the gates for the passing of each construction vehicle. The gates are not to be left open at any time, except for Fire Department emergencies. The applicant is responsible to ensure that public traffic and residents do not use this access road. Construction access on the emergency vehicle access road is subject to review by the Director of Public Works and may be revoked at any time. The existence and use of the emergency vehicle access road is by an existing easement between the Owners. The easement must be realigned by the Owners and set forth on final project map. A condition of approval has been placed on the project that the temporary improvements to the emergency vehicle access road shall comply with the requirements of the City's Director of Public Works and Fire Marshall, whose requirements will include: • The driveway apron shall be fully improved; • A survey must be completed and approved to center the road on the property line; • A crash gate with a knox box shall be located where the access joins Villa Del Pellegrino; • The temporary emergency vehicle access must be designed and constructed to support an 80,000 lbs. vehicle and shall be a minimum of three inches AC on compacted native soil; • The bank along the north side of the access road needs to be cut back 3/1; and • Improvement plans for the emergency vehicle access shall be submitted, reviewed, and approved before construction takes place. GAPlanning\Kevin Swartz\Word\Precise PlansWilla Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 12 of 16 October 11, 2012 B. Portola Avenue Improvements / Full Improvements to the Secondary Access: Concurrent with the recording of the Development Agreement and the final map, Country Club Drive Investors will dedicate right-of-way along Portola Avenue and Country Club Drive to the City as required by the development approvals. Also, prior to the recording of the final map, the owners will enter into an improvement agreement with the City to address all construction as outlined in Section 2.2.3 of the Development Agreement. The applicants will also provide one improvement bond for completion of the Portola Improvements and the Secondary Access Permanent Improvements. The applicants have agreed to complete the bonded improvements within two (2) years of the recordation of the Development Agreement and Final Map, but in any event prior to issuance of any building or grading permits for the Portola Parcel not specifically related to the Portola Improvements and the Secondary Access Permanent Improvements. Ownership of all or any portion of the Portola Parcel will not be transferred prior to the occurrence of the Portola Dedication. If the Portola Improvements and/or the Secondary Access Permanent Improvements are not completed in a timely manner or in accordance with the standards set forth in the Improvement Agreement, the City will have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Project, until such time as the Portola Improvements and the Secondary Access Permanent Improvements have been completed. The City will also have the right to use the applicable bond to complete the remaining/incomplete Portola Improvements and/or the Secondary Access Permanent Improvements, and upon completion, issuance of permits and certificates, and performance of inspections will resume. C. Country Club Wall: The perimeter wall will be extended along the project's north property line to the adjoining City parcel (Fire Station) prior to issuance of building permits for Lots 3 or 4 for the Portola Parcel. D. Tentative Tract Map 36404 / Conditional Certificate of Compliance: Under the original entitlements, Lot 1 of Tract No. 29489 (the "Master Parcel") was not initially approved for condominium purposes. However, the condo plans were recorded by the property owner against the Master Parcel. Building permits were issued by the City to construct condominium units within the Master Parcel, and certificates of occupancy were issued for condominium units constructed within the Master Parcel. The completed condominium units within the Master Parcel have been sold to buyers. Additionally, the Master Parcel has been effectively subdivided into the five parcels based upon the perimeter descriptions and depictions of various condominium phases that were set forth in the condo plans. G:\Planning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 13 of 16 October 11, 2012 Upon satisfaction of the map recordation condition, the owners of the Master Parcel will have fulfilled the City's conditions to have: 1. The tract Map retroactively deemed to be a final map for condominium purposes, with the approved number of condominium unit as set forth herein; and 2. The condo plans retroactively deemed to be final maps with respect to the five parcels pursuant to the terms with the Conditional Certificate of Compliance document. The "Map Recordation Condition" that must be satisfied prior to the Certificate becoming effective is the filing of record of a final map derived from and based upon the final version of Tentative Tract Map No. 36404 approved by the City. Tentative Tract Map 36404, which is applicable to portions of the Master Parcel, is part of the approvals. Upon recordation and upon the filing of record of the final map and the Certificate of Compliance, both will confirm and establish, and be in compliance with the requirements of the Subdivision Map Act and City ordinances. E. Unapproved Pad Height Elevations on the 11.21-acre parcel: In 2008, the City rescinded an approved grading plan when discrepancies between the pad elevations shown on the precise grading plan and the mass grading plan were discovered. The proposed pad elevations, ranging from 219.2' to 222.6' above sea level, were much higher than the original mass grading plan elevations (ranging from 214' to 216) approved in 2000. After the 2005 approval, Royce International installed sewer and water lines. During that time period, residents from Casablanca have expressed their concerns regarding the pad height elevations to City staff and the City Council. Staff has informed the current applicants that the unapproved pad heights will have to be corrected to the original pad heights approved on the 2000 mass grading plan before structures are constructed thereon. Today, the proposed preliminary grading plan shows the pad height elevations ranging from 215' to 217'. The applicants state that in order to comply with the 2000 mass grading plan, they would have to remove the existing sewer and water lines. Staff's only issue with the proposed pad height elevations is from complaints driven by residents from Casablanca. From a drainage standpoint, the City Engineer states the pad height elevations would drain appropriately. Staff recommended the applicants hold a neighborhood meeting with Casablanca to address the pad heights. The applicant held a neighborhood meeting with Casablanca and Villa Portofino residents to come up with mitigation measures sufficient to overcome the disparity in pad heights between Villa Portofino and Casablanca. VP Builders/Family GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 14 of 16 October 11, 2012 Development has notified the City that they have a signed agreement in place stating that Casablanca approves of the proposed pad height elevations. Since JJL Property Investors owns a portion of Lot 2 of Tentative Tract Map 36404, and is not part of these entitlements, staff requested a letter from Casablanca acknowledging that construction or removal of the dirt may not commence within several years. Attached to the staff report is a letter from Casablanca Owners Association dated August 29, 2012, in support of the proposed pad height elevations and acknowledging that Lot 2 may not be graded or constructed on for several years. F. Traffic: A traffic study was prepared under the original entitlements. The traffic study showed that the use would generate 56 percent less traffic than if the site were approved with single family homes. This result is from the lower trip generation of retirement housing compared to standard housing. The City's Transportation Engineer indicates that the intersection of Country Club Drive and Portola Avenue will continue to operate at a level of service "C" or better. G. Land Use Compatibility: The applicants are not significantly changing the product or design of the previous approvals. The property today does not physically divide the existing community, and does not conflict with any applicable land use plan, policy, or regulation outlined in the General Plan. In terms of the use, the project is consistent with the City's Zoning Ordinance by providing senior residential units within a senior residential zone. Other aspects of the project, height, parking and setbacks will remain as previously approved. As described in the above sections A-H, it can be determined that the original development will have a less than significant impact on aesthetic resources, traffic, and land use compatibility. The project as approved was and is consistent with the Planned Residential zone and the Senior Overlay. It will provide a unique combination of life services, social, recreational and cultural amenities within a resort environment normally associated with high end country clubs. The project was designed and will continue to be sensitive to the adjacent residential developments. The property owners have made presentations to each of the adjacent residential developments and have received favorable responses. H. Findings: No map shall be approved unless the City Council finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the General Plan. G'\Planning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 15 of 16 October 11, 2012 1. That the density of the proposed subdivision is consistent with applicable general and specific plans; The project was previously approved by Resolution No. 99-19 totaling 625 units. The project density and unit count will remain as previously approved. The project was approved with a General Plan Amendment and was consistent with the General Plan. In the Land Use Element under residential goals, policies, and programs a goal is to provide "a range of housing types, densities and affordabilities that accommodate existing and future residents across all socio-economic sectors of the community." The project was originally approved with a senior overlay designation, and was designed to provide increased density and special development standards to encourage the development of specialized forms of senior housing. The overlay allows densities based on a population per acre land use formula. The overlay also requires that senior housing projects include up to 25 percent affordable housing in exchange for these large density bonuses. 2. That the design or improvement of the proposed subdivision is consistent with applicable general and specific plans; The design of the residential component will result in 625 total units. No physical lots will be created. Goal 1 of the Residential Goals and Policies of the Land Use Element states that the City shall provide "a balanced range of housing types, densities and affordabilities that accommodate existing and future residents across all socio-economic sectors of the community." The proposed project broadens the range of residential product in the City by creating a unique senior living resort residential community. 3. The site is physically suitable for the type of development. The site has been previously approved by Resolution No. 99-19 for 625 total units. Although most of the property is vacant today, a portion of the approved project is built. The site has physical improvements, such as curbs and utilities already providing service to the site. The property is suitable for the proposed development as conditioned and previously approved. 4. The site is physically suitable for residential development. The proposed 75-acre site is physically suitable for residential development with access provided by two main streets, Country Club Drive and Portola Avenue. Utilities are available in the vicinity, and the property is adjacent to residential properties to the south, east and west. 5. The design of the tract map or the proposed improvements is not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. G:\Planning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc Staff Report ` W Case Nos. DA 11-516, Modify PP 98-21, and TTM 36404 Page 16 of 16 October 11, 2012 A Mitigated Negative Declaration was approved under the original entitlements, and all potential impacts were less than significant. The project as originally approved will not change, therefore the project will not cause substantial environmental damage or injure fish or wildlife or their habitat. 6. The design of the tract or type of improvements is not likely to cause serious public health problems. The design of the tract map is consistent with all provisions of the zoning ordinance. The proposed development is subject to applicable City development standards and the Uniform California Building Standards Code, which is developed under the Health and Safety Code (Section 18902), and whose purpose is to protect the health, safety, and general welfare of the public. 7. The design of the subdivision or the type of improvements will not conflict with easements acquired by the public at large, for access through or use of property within the proposed subdivision. The proposed subdivision does not interfere with any public easements acquired by the public. Environmental Review: The Villa Portofino project was subject to a comprehensive CEQA review at the time it was initially approved in 1998. Since that time the project has been partially built -out. The current approvals merely reaffirm the prior approvals, and do not change them in any material way. Staff has reviewed the prior CEQA analysis and current conditions, and confirmed that there are no changes in circumstances or the project that would warrant additional CEQA review at this time. As it is clear that the reaffirmation of prior approvals will not have any significant effect on the environment, the project is categorically exempt. Submitted By: Kevin Swartz, Assistant Planner CIW COVNCICI.A ION APPROVED 1�°'' D'FT+n D RECEIVED OTHER...r. Department He_4: AYES: 44NOES:,LSI ABSENT: Lagr-i' aian, Director of Communi Developrr ,,,*�i pro Original on File with Cit�Clerk's Office I: j!A * Two motions here - Prevailing Motion v l as follows: SEE NEXT PAGE Jol K PM. WohlmuTh, City Manager Swartz\Word\Precise Plans\Villa Portofino\City Council\City Council Staff Report Final.doc En REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 20112 XVII. PUBLIC HEARINGS A. CONSIDERATION OF MODIFICATIONS TO THE PRIOR APPROVALS FOR VILLA PORTOFINO (SOUTHWEST CONRNER OF PORTOLA AVENUE AND COUNTRY CLUB DRIVE) INCLUDING: A CONDITIONAL CERTIFICATE OF COMPLIANCE TO COFIRM THE PRIOR SUBDIVISION OF A PORTION OF THE PROPERTY; A TENTATIVE TRACT MAP; A MODIFIED PRECISE PLAN; AND AMENDED AND RESTATED DEVELOPMENT AGREEMENT; AND ARCHITECTURAL ELEVATIONS FOR 72 NEW CONDOMINIUM/VILLA UNITS ON LOT NO. 5 OF THE PROPOSED MAP, Case Nos. DA 11-516, PP 98-21 Amendment No. 2, and TTM 36404 (VP Builders, LLC/Country Club Drive Investors, LLC, Applicants). Rec: Waive further reading and: 1) Pursuant to Section 25.37.050 of the Palm Desert Mun ' al Code, find that the Development Agreement is consistent wi the General Plan as described in the findings of City Council R ution No. 2012-67, and pass Ordinance No. 1251 to second readi , approving Development Agreement 11-516. 2) Adopt Resolution No. 20 - 7, approving modifications to Precise Plan 98- 21, a Conditional C i icate of Compliance, Tentative Tract Map 36404, and architectural vations for 72 new condominium/villa units, subject to attach onditions. Two motions here — Prevailing Motion as follows: Action: Waive further reading and, subject to the City Attorney and staff making any such minor modifications as may be necessary to perfect the instruments for this purpose: 1) Pursuant to Section 25.37.050 of the Palm Desert Municipal Code, find that the Development Agreement is consistent with the General Plan as directed in the findings of City Council Resolution No. 2012-67 and pass Ordinance No. 1251 to second reading, approving Development Agreement 11-516; 2) adopt Resolution No. 2012-67, approving modifications to Precise Plan 98-21, a Conditional Certificate of Compliance, Tentative Tract Map 36404, and architectural elevations for 72 new condominium/villa units, subject to attached conditions (City Attorney looking at legal solutions [e.g. Code Enforcement] for remediation of the berm issue on Lot 2, with information to be returned at the next reading of the Ordinance at the next meeting before any action can be taken by Applicants). 5-0 ORDINANCE NO. 1251 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT TO THE PRIOR APPROVALS FOR VILLA PORTOFINO (SOUTHWEST CORNER OF PORTOLA AVENUE AND COUNTRY CLUB DRIVE) INCLUDING: A 161-BED SKILLED NURSING FACILITY, A 150-BED ASSISTED LIVING FACILITY, 288 VILLA UNITS AND 182 CASITA UNITS. CASE NO. DA 11-516 WHEREAS, the Planning Commission by its Resolution No. 2592 has recommended approval of Case No. DA 11-516; and WHEREAS, at said public hearings, said City Council heard and considered all testimony and arguments of all interested persons; and WHEREAS, the City Council finds that the Development Agreement is consistent with the General Plan, as described in the Findings of the City Council Resolution No. and WHEREAS, pursuant to the California Environmental Quality Act ("CEQA") (Pub. Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 § 15000 et seq.), the City is the lead agency for the proposed Project; and WHEREAS, on the basis of the Initial Study, which concluded that the Project will not have significant impacts on the environment with mitigation, the City determined that the Villa Portofino project was subject to a comprehensive CEQA review at the time it was initially approved in 1998. Since that time the project has been partially built -out. The current approvals merely reaffirm the prior approvals, and do not change them in any material way. Staff has reviewed the prior CEQA analysis and current conditions, and confirmed that there are no changes in circumstances or the project that would warrant additional CEQA review at this time. As it is clear that the reaffirmation of prior approvals will not have any significant effect on the environment, the project is categorically exempt. WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS FOLLOWS: SECTION 1: That the Development Agreement 11-516, Exhibit "A" attached hereto, by Ordinance No. is hereby approved. SECTION 2: That the City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effect thirty (30) days after its adoption. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert City Council held on this day of 2012, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: RACHELLE KLASSEN, City Clerk City of Palm Desert, California ROBERT A. SPIEGEL, Mayor r Exhibit A WHEN RECORDED RETURN TO: The City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: City Manager Fee Exempt - Govt. Code 27383 (Space above for Recorder's Use) VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR A PORTION OF THE PROJECT between THE CITY OF PALM DESERT a California charter city and VP LAND, LLC; VP BUILDERS, LLC; and COUNTRY CLUB DRIVE INVESTORS, LLC Dated as of _, 2012 72500.00791\7577720.1 VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR A PORTION OF THE PROJECT This Villa Portofino Amended and Restated Development Agreement for a Portion of the Project ("Agreement") is entered into and effective on the date it is recorded with the Riverside County Recorder ("Effective Date") by and between (i) the CITY OF PALM DESERT, a California charter city ("City'), (ii) VP Land, LLC, a Colorado limited liability company ("VP Land"), (iii) VP Builders, LLC, a Colorado limited liability company ('VP Builders") and Country Club Drive Investors, LLC, a Delaware limited liability company ("County Club Drive Investors"). VP Land, VP Builders, and Country Club Drive Investors are sometimes individually referred to as "Owner' and collectively referred to as "Owners" herein. VP Land, LLC is also referred to as "Designated Owner' hereunder. RECITALS WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Section 65864 et seq. of the Government Code authorizing any city, county or city and county to enter into a development agreement with an applicant for a development project, establishing certain development rights in the property which is the subject of the development project application ("Development Agreement Lave'); and WHEREAS, City has adopted an ordinance and regulations establishing procedures and requirements for the approval of development agreements, pursuant to California Government Code Section 65865 ("Development Agreement Procedures"); and WHEREAS, VP Land owns certain real property legally described in the attached Exhibit "A-1" (the "VP Land Parcel"), VP Builders owns certain real property legally described in the attached Exhibit " A-2" (the "VP Builders Parcel"), and Country Club Drive Investors owns certain real property legally described in the attached Exhib it " A -3" (the "Portola Parcel") (the VP Land Parcel, the VP Builders Parcel and the Portola Parcel are collectively referred to herein as the "Property') (for the avoidance of doubt, the existing 72 Villa units identified as Units 1-72 of the Phase 1 condominium plan (described below), and any associated real property rights and interests, the proposed 40 condominium units identified as Units 73- 112 of the Phase 2 condominium plan (described below), and any associated real property rights and interests (collectively, the "Excluded Units"), and the land underlying the Clubhouse (as hereafter defined and as set forth in the condominium plans recorded against a portion of the Property) are not intended to be a part of the Property, nor subject to this Agreement); and WHEREAS, In 1998 and 1999, Owners' predecessors in interest, Royce International Investment Co. ("Royce"), was granted approval of General Plan Amendment 98-6, Change of Zone 98-7, Precise Plan/Conditional Use Permit 98-21 , and a Development Agreement entitled "Senior Housing Development Agreement Royce International", dated February 25, 1999 and approved by the City Council for the City of Palm Desert pursuant to City Ordinance No. 907 on February 25, 1999, as amended by City Ordinance No. 1075 adopted September 23, 2004 to reduce the minimum age limit set forth in said Senior Housing Development Agreement Royce International from 62 years of age to 55 years of age (collectively "Initial Development Agreement")(collectively "Prior Approvals"), which Prior Approvals provided for the development 72500.00791\7577720.1 on the Property of a health club and wellness resort for seniors, 288 apartments, 182 casita units, 161 bed skilled nursing facility, 150 bed assisted living facility and zone change to senior overlay (the "Initial Project"); and WHEREAS, pursuant to the Prior Approvals, in the intervening years 72 villa units and a clubhouse and related improvements (the "Clubhouse") were completed and construction of an additional 48 villa units was commenced; and WHEREAS, condominium plans were recorded against portions of the Property resulting in unapproved parcels and individual condominium units that were sold to the general public, and the terms of the Initial Development Agreement were not complied with by Royce; and WHEREAS, Owners have requested City to approve modifications to the Prior Approvals and related considerations, including a Conditional Certificate of Compliance to, among other things, confirm the prior subdivision of a portion of the Property ("COC"), a Tentative Tract Map, a modified Precise Plan, and this Amended and Restated Development Agreement, which shall collectively provide for the development of 311 units of independent living, assisted living, and/or skilled nursing on the Portola Parcel and up to 358 condominium units collectively on the VP Land Parcel and the VP Builders Parcel, without taking into account the 112 Excluded Units, all subject to a household age restriction of 55 years old (collectively the "Project") and WHEREAS, by electing to enter into this Agreement, City shall bind future City Councils of City by the obligations specified herein, and limit the future exercise of certain governmental and proprietary powers of City; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, City has found that the provisions of this Agreement and its purposes are consistent with the objectives, policies, and general land uses and programs specified in City's General Plan; and WHEREAS, all actions taken and approvals given by City have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes and other procedural matters in accordance with the Development Agreement Law and Development Agreement Procedures; and WHEREAS, all actions taken by the City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (Public Resources Code Section 21000, et seq.); and NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Owners (each herein sometimes called a "Party' and jointly the "Parties") do hereby agree as follows: 72500.00791\7577720.1 ARTICLE 1 GENERAL PROVISIONS 1.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement, which, with respect to the Property and only the Property, is intended to amend and restate the Initial Development Agreement. In the event of any conflict between the terms of this Agreement and the terms of the Initial Development Agreement, the terms of this Agreement shall control. Furthermore, and with respect to the Property only, the rights, interests, obligations and responsibilities of the Owners and the City, and any covenants, conditions or restrictions applicable to the Property, arising from or under the Initial Development Agreement, are replaced in their entirety by the rights, interests, obligations and responsibilities of the Owners and the City, and any covenants, conditions or restrictions applicable to the Property, as set forth herein. 1.2 Ownership of Property. Owners represent, covenant and warrant that they are the owners of fee simple title to their respective parcels comprising the Property as described in the above Recitals and as set forth on Exhibit " A-1" through Exhib it " A -a' . 1.3 Term. The term ("Term") of this Agreement shall commence on the Effective Date and shall continue for a period of ten (10) years thereafter unless this Term is modified or extended pursuant to the terms of this Agreement. So long as an Owner is not then in default of its obligations hereunder or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals (as hereafter defined), and provided the Development Commitments (as hereafter defined) have been and, if applicable, continue to be satisfied and complied with, City agrees to reasonably consider an extension of the Term of this Agreement with respect to and upon the written request of such Owner for an additional five (5) year increment. Any such consideration by the City of an extension of the Term will require a determination by the City, in its sole discretion, that there has been no material change in the attendant facts and circumstances relating to the Project that would make or warrant a material change to the Project as currently contemplated advisable from the City's perspective. 1.4 Assignment, Sale and Transfer of Interest in parcels of the Property and this Agreement. Owners shall have the right to assign, sell or transfer their portion of the Property in whole or in part at any time during the term of this Agreement; provided, however, that any such assignment, sale or transfer to any party that is not (a) a member of the homebuying public, (b) Palm Desert Villa Portofino Homeowners' Association, a California non- profit mutual benefit corporation, being the homeowners' association previously established for the Project other than the Portola Parcel ("HOA" ), with respect to easements and common areas, or (c) a lender who will obtain a security interest in all or any portion of the Property (collectively and as so qualified, "Exempt Parties") shall include the assignment and assumption of the respective rights, duties and obligations of the assigning, selling or transferring Owner arising under or from this Agreement. Except as otherwise expressly contemplated hereunder, no sale, transfer or assignment of any right or interest under this Agreement to any party that is not one of the Exempt Parties shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. Each Owner shall notify the City in the event of such Owner's sale or transfer of any portion of the Property to any party that is not one of the Exempt Parties. Failure to provide notice of sale or transfer when required hereunder shall be grounds for termination of this Agreement as it relates to the Owner in violation hereof, at absolute discretion of City. 72500.00791\7577720.1 1.5 Amendment or Cancellation of Agreement. Except as otherwise provided herein, this Agreement may be amended or canceled in whole or in part only by written consent of all Parties in the manner provided for in California Government Code Section 65868; provided, however, City's Director of Community Development may, in his/her sole discretion, make and approve minor technical, non -substantive modifications to this Agreement as requested by an Owner so long as the other Owners and their portion of the Property will not be materially and adversely affected by such modification (the "Minor Modification Qualification"). 1.6 Termination. This Agreement shall be deemed automatically terminated and of no further effect upon the occurrence of any of the following events: 1.6.1 Expiration of the Term of this Agreement as set forth in Section 1.3. 1.6.2 Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance adopting this Agreement. 1.6.3 The adoption of a referendum measure pursuant to California Government Code Section 65867.5, overriding or repealing the ordinance adopting this Agreement. Except as provided under section 2.3.3, termination of this Agreement shall not constitute termination of any Development Approvals (hereinafter defined) granted for or applicable to the Project prior to such termination. Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder, except with respect to: (i) any obligation to have been performed by such Party prior to such termination, (ii) any default in the performance of the provisions of this Agreement by such Party which occurred prior to such termination, or (iii) any obligations of such Party which are specifically set forth herein as surviving the termination of this Agreement. 1.7 Notices. (a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below; or (iv) on the date of delivery by facsimile transmission to the recipient named below. All notices shall be addressed as follows: If to City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: City Manager and City Attorney Telephone: (760) 346-0611 Facsimile: (760) 340-0574 72500.00791\7577720.1 With a copy to: Best Best & Krieger LLP 74-760 Highway 111, Suite 200 Indian Wells, California 92210 Attention: City Attorney for City of Palm Desert Telephone: (760) 568-2611 Facsimile: (760) 340-6698 If to VP LandNP Builders: VP Builders, LLCNP Land, LLC c/o Family Development Group, Inc. 73081 Fred Waring Drive Palm Desert, California 92260 Attention: Rudy C. Herrera Telephone: (760) 900-8989 Facsimile: (760) 776-4422 With a copy to: VP Builders, LLCNP Land, LLC c/o Real Capital Solutions 371 Centennial Parkway, Suite 200 Louisville, CO 80027 Attention: Ryan Atkin Telephone: (303) 466-2500 Facsimile: (303) 466-4602 If to Country Club Drive Investors: Country Club Drive Investors, LLC 28071 Las Brisas Del Mar San Juan Capistrano, CA 92675 Attn: Jerry Robinson Telephone: (_) Facsimile: (_) (c) Any Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a Party or an officer or representative of a Party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. ARTICLE 2 DEVELOPMENT OF THE PROPERTY 2.1 Development Approvals. For the purpose of this Agreement, the term "Development Approvals" means the following entitlements issued or approved by City for development and/or use of the Project, as same shall be modified to provide for the Project, including the continued development, construction and sale of condominium units on the Property, and to provide for a unit age restriction of 55 years old within the Project: (a) G PA 98-6; CZ 98-7; PP/CUP 98-21; (b) The COC; 72500.00791\7577720.1 (c) Tentative Tract Map 36404 (the "TTM"); (d) This Amended and Restated Development Agreement; and (e) Conditions of Approval, attached hereto as Exhibit " B" . 2.2 Owner Commitments: As part of the Project, and in consideration for the Development Approvals, Owners have committed to certain improvements as set forth below in this Section 2.2 in conjunction with the development and construction of the Project ("Development Commitments"). The allocation of applicable costs and responsibilities for such Development Commitments as between the Owners, as applicable, has been or will be addressed by the Owners in a separate agreement. 2.2.1 Emergency Vehicle Access Road: Temporary improvements to the emergency vehicle access road on and across the Portola Parcel to Portola Avenue as required by PP 98-21 shall be completed in accordance herewith prior to the issuance of any additional building permits for the Project. The existence and use of such access road is contemplated by an existing easement between the Owners, which easement will be realigned by the Owners and set forth on Final Project Map (as hereafter defined). Such temporary improvements to the emergency vehicle access road may be constructed as a 24 foot wide roadway with one lane in each direction, and in any event shall comply with the requirements of the City's Director of Public Works and Fire Marshall, which requirements shall include, but not be limited to: (1) The driveway apron shall be fully improved; (2) A survey must be completed and approved to center the emergency vehicle access road on the property line; (3) Except as otherwise set forth herein, use of the emergency vehicle access road shall be limited to emergency vehicles and construction vehicles only, provided that use and access for construction purposes is subject to review by the City's Director of Public Works and may be revoked at any time, and further provided that (A) any construction traffic use of the emergency vehicle access road shall utilize transponders or other means to actuate the VDP Gate (as hereafter defined) for the passing of each construction vehicle, (B) the VDP Gate shall not be left open at any time, except for Fire Department emergencies, and (C) Designated Owner shall ensure that public traffic and residents do not use such emergency vehicle access road until permanent improvements have been installed in accordance herewith, at which time the emergency vehicle access road, as enhanced by the completion of the Secondary Access Permanent Improvements (as hereafter defined), may be utilized for purposes set forth in Section 2.2.3 herein. (4) A crash gate with a knox box shall be located where the emergency vehicle access road joins Villa Del Pellegrino (the "VDP Gate"); (5) The emergency vehicle access road must be designed and constructed to support an 80,000 lb. vehicle and shall be a minimum of 3 inches AC on compacted native soil; 72500.00791\7577720.1 (6) The bank along the north side of the emergency vehicle access road needs to be cut back 3/1; and (7) Improvement plans for the emergency vehicle access road shall be submitted, reviewed, and approved before construction takes place. 2.2.2 Amendment of CC&Rs: Designated Owner shall covenant and agree to be bound by the Second Amended and Restated Declaration of Condominium for Villa Portofino dated September 25, 2007 and recorded December 28, 2007 as Document No. 2007- 0769813 with the Riverside County Clerk and Recorder, as same has been modified prior to the Effective Date (the "Existing CC&R"s), pursuant to a recorded instrument in form and substance reasonably satisfactory to the City recorded prior to or concurrent with this Agreement and prior to the issuance of any additional building permits for the Project (the "CC&R Acknowledgement Obligation"). The CC&R Acknowledgement Obligation shall require that Designated Owner execute any future amendment to the Existing CC&Rs to clarify the property ownership descriptions in the Existing CC&Rs. 2.2.3 Portola Avenue Improvements/Full Improvements to the Secondary Access: Concurrent with the recording of this Agreement and the Final Map applicable to the Project derived from and based upon the TTM ("Project Final Map"), Country Club Drive Investors will dedicate right-of-way along Portola Avenue and Country Club Drive to the City as required by the Development Approvals (such dedication and acceptance by the City being referred to herein as the "Portola Dedication"). The land that is the subject of the Portola Dedication is depicted on Exhibit " C" attached hereto (the "Portola Dedication Land"). Concurrent with the recording of the Project Final Map, each Owner will provide to the City and the Party performing the underlying work, a construction access easement with terms reasonably acceptable to the applicable Parties thereto, if and to the extent required, to provide for the construction of the Portola Improvements (as hereafter defined). Prior to the recording of the Project Final Map, Designated Owner shall enter into an Improvement Agreement with the City substantially in the form of Exhibit " D" attached hereto (the "Improvement Agreement') [TO BE ATTACHED], which Improvement Agreement (a) shall address construction of (i) street improvements along Portola Avenue as required by the Development Approvals ("Portola Improvements"), and (ii) full improvements to the secondary access on and across the Portola Parcel to Portola Avenue as required by the Development Approvals ("Secondary Access Permanent Improvements"), and (b) shall be secured by a single improvement bond in the amount reasonably acceptable to the City securing the design and construction of the Portola Improvements and the Secondary Access Permanent Improvements in compliance with the Improvement Agreement (the "Improvement Bond"). Once the Secondary Access Permanent Improvements have been installed, any access and use restrictions set forth in Section 2.2.1 hereof shall no longer apply and the portion of such road on the Portola Parcel may be utilized by the Owners and their successors, assigns, contractors and invitees; provided, however, that the VDP Gate (or a replacement or enhancement thereof) shall not be removed and entry upon the VP Land Parcel and the VP Builders Parcel shall be restricted to the use and access for ingress and egress purposes of emergency and construction vehicles and for the use and access of the owners of all or any portion of the Property other than the Portola Parcel, and their successors, mortgagees, lessees, licensees, contractors, guests and invitees, for pedestrian, bicycle and vehicular (including construction vehicles) access, ingress and egress; provided, however, nothing herein shall be deemed to restrict the use of the Owner of the Portola Parcel and the successors, assigns, contractors and invitees of such Owner, and the residents of the Portola Parcel, for purposes other than access to the VP Land Parcel and the VP Builders 72500.00791\7577720.1 Parcel. The Parties intend that the Improvement Bond will be posted upon execution of the Improvement Agreement and Designated Owner agrees to utilize commercially reasonable best efforts to procure such Improvement Bond prior to the occurrence of the Portola Dedication; provided, however, that in the event that the bonding company rejects Designated Owner's application for such Improvement Bond because neither the City nor Designated Owner then own the Portola Dedication Land, as evidenced by a written notice of rejection of Designated Owner's underlying application for the improvement Bond from such bonding company, or if such bonding company requires that the Portola Dedication occurs before such Improvement Bond becomes active, City shall permit Designated Owner to procure the Improvement Bond in active form promptly following the occurrence of the Portola Dedication; provided, however, that no additional building permits shall be issued for the Project until such Improvement Bond is procured and active. 2.2.4 Bond per Improvement Agreement: The Improvement Agreement and the Improvement Bond shall provide, to City's satisfaction, for completion of the Portola Improvements and the Secondary Access Permanent Improvements by the date two (2) years after the Effective Date of this Agreement but in any event prior to issuance of any building or grading permits for the Portola Parcel not specifically related to the Portola Improvements and the Secondary Access Permanent Improvements. Ownership of all or any portion of the Portola Parcel shall not be transferred prior to the occurrence of the Portola Dedication. If the Portola Improvements and/or the Secondary Access Permanent Improvements are not completed in a timely manner by Designated Owner in accordance with the standards set forth in the Improvement Agreement, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Project until such time as the Portola Improvements and the Secondary Access Permanent Improvements have been completed. The City shall have the right to use the applicable bond to complete the remaining/incomplete Portola Improvements and/or the Secondary Access Permanent Improvements, and upon completion, issuance of permits and certificates, and performance of inspections will resume. 2.2.5 Country Club Wall: The Project's perimeter wall along County Club Drive shall be repaired by the Party owning the underlying land before issuance of any additional building permits for the Project. The perimeter wall shall be extended along the Project's north property line to the adjoining City parcel (that has been developed as a fire station) by Country Club Drive Investors per plans approved by the City prior to the issuance of building permits for the Portola Parcel other than any such building permits that may be required in connection with the construction of the access road across the Portola Parcel or the Portola Improvements ("Country Club Wall Extension"). 2.2.6 Landscaping: Prior to issuance of any additional building permits for the Project, Designated Owner shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Country Club Drive, including the median, and all retention basins within the Project (the "Landscaping Maintenance Agreement'). The Landscaping Maintenance Agreement may be assigned by Designated Owner to the HOA. Prior to the issuance of the first certificate of occupancy or completion for the Portola Parcel, Country Club Drive Investors shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Portola Avenue (the "Portola Landscaping Maintenance Agreement"). 72500.00791\7577720.1 2.2.7 Signal Maintenance: Designated Owner has entered into a signal maintenance agreement, as set forth on Exhibit " E" attached hereto, providing that Owners will pay to the City twenty five percent (25%) of the costs related to energy, maintenance and repair of the traffic signal at Country Club Drive and Via Portofino/Palm Greens Parkway (the "Signal Maintenance Agreement'). The Signal Maintenance Agreement may be assigned by Designated Owner to the HOA. 2.2.8 Affordable Housing In -Lieu Payment: As an affordable housing in -lieu payment each Owner shall pay $1,166 per residential unit constructed on their respective portion of the Property prior to the City's issuance of a certificate of occupancy for or applicable to such unit(s) (the "In -Lieu Fee"); provided, however, that with respect to the Portola Parcel, the unit breakdown for which the In -Lieu Fee is due shall be as follows: Lot 3 of the Portola Parcel shall contribute the In -Lieu Fee for 75 units (Skilled Nursing) and Lot 4 of the Portola Parcel shall contribute the In -Lieu Fee for 80 units (Assisted Living). No additional In -Lieu Fee shall be due with respect to the Portola Parcel. 2.3 Rights to Develop. Subject to the terms, conditions, and covenants of this Agreement, each Owner's right to develop their portion of the Project in accordance with the Development Approvals (and subject to the Conditions of Approval) shall be deemed vested upon complete execution of (1) this Agreement, and (2) the Improvement Agreement, which vesting shall expire with respect to an Owner and their portion of the Property upon the earlier of the following occurrences: (a) termination of this Agreement with respect to such Owner pursuant to the terms hereof; (b) an uncured material default of this Agreement by such Owner; (c) an uncured material default under the Improvement Agreement, subject to the City providing notice to the Owner of such default and a reasonable cure period; or (d) as to a particular phase, parcel, or lot comprising a portion of the Project, the earlier of the final approved City inspection of the completed development on such phase, parcel, or lot, or the issuance by the City of a certificate of occupancy for the last improvement to be occupied on such phase, parcel, or lot. Additionally, (aa) in the event of and during the period of an uncured default under the Landscaping Maintenance Agreement or the Signal Maintenance Agreement, and subject to the City providing notice of such default and a reasonable cure period to the Owners, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Project, and (bb) in the event of and during the period of an uncured default under the Portola Landscaping Maintenance Agreement, and subject to the City providing notice of such default and a reasonable cure period to Country Club Drive Investors, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Portola Parcel. So long as this Agreement remains in full force and effect, and subject to the terms of the preceding sentence, City agrees with respect to the Project to issue building permits and certificates of occupancy and to conduct inspections and review plans and submittals in the ordinary course, and to cooperate with Owners with respect to satisfying any other approvals or authorizations required by the Existing Development Regulations (as hereafter defined) and any applicable New Laws (as hereafter defined). Except for the expiration set forth in clause (a) of the preceding sentence, the expiration of the vesting right set forth in the preceding sentence shall not terminate the obligations of Owners under this Agreement. Except as explicitly modified by this Agreement, and except as otherwise expressly provided herein, the Project shall remain subject to the following, to the same extent it would without this Agreement: (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 72500.00791\7577720.1 committees existing on the Effective Date of this Agreement (collectively, the "Existing Development Regulations"); (ii) all amendments or modifications to Existing Development Regulations after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Owner's ability to develop and construct the Project in accordance with the Development Approvals, unless such New Laws are (A) adopted by the City on a City wide -basis, with no exceptions or grandfather clause of any kind applicable to similar developments, and applied to the Site in a non-discriminatory manner, (B) required by a non -City governmental entity to be adopted by or applied by the City to the Project (or, if adoption is optional, if the failure to adopt or apply such non -City governmental law or regulation and apply same to the Project would cause the City to be in violation of state of federal law, or to sustain a loss of funds or loss of access to funding or other resources or subject to any penalty not reimbursed in full by the Owners), or (C) New Laws that have been adopted by City Council as of the Effective Date but have not been finally approved by the Effective Date beyond any challenge or appeal period, but only to the extent the City specifically reserves the right to apply same to the Project under this Agreement. (iii) all subsequent development approvals and the conditions of approval associated therewith, including but not limited to any further site development permits, tract maps, and building permits; (iv) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable, which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees and costs are due and payable; and (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. 2.3.1 Additional Applicable Codes and Regulations. Notwithstanding any other provision of this Agreement, the City also reserves the right to apply the following to the development of the Project: 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. In the event of fire or other casualty requiring construction of more than fifty (50%) percent of any building previously constructed hereunder, nothing herein shall prevent the City from applying to such reconstruction, all requirements of the City's Building, Electrical, Mechanical, and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal Code, solely to the extent applicable to all development projects in the City. 72500.00791\7577720.1 This Agreement shall not prevent the City from establishing any new City fees on a City- wide basis and applied to the Project in a non-discriminatory manner on a go forward basis, including new development impact fees, or increasing any existing City fees, including existing development impact fees, and to apply such new or increased fees to the Project or applicable portion thereof where such new or increased fees may be charged. 2.3.2 Owners' Obligations Regarding Conditions of Approval. The Owners shall comply with the Conditions of Approval for the Development Approvals. Owners acknowledge that additional conditions of approval beyond those set forth in Exhibit " B" may be applicable to the Project if imposed in conjunction with future Project Approvals; provided, however, that no additional conditions of approval or restrictions arising in connection with any such future Project Approvals shall attach to, condition or restrict any portion of the Property unless the underlying Owner is a party to or consents in writing to the application or submittal to the City seeking any such future Project Approvals. An Owner's failure to comply with the Conditions of Approval as they relate to such Owner's Property shall be a material breach of this Agreement by such Owner and grounds for its termination with respect to such Owner and such Owner's portion of the Property pursuant to Section 3.3 hereof. 2.3.3 Grading Plans/Pad Heights. Owners shall submit precise grading plans for review and approval of the City. Pad elevations on the precise grading plans for the VP Land Parcel and the VP Builders Parcel shall conform to the range of elevations shown on the preliminary grading plans approved by the City Planning Commission. 2.4 Changes and Amendments. The Parties acknowledge that refinement and further development of the Project will require subsequent development approvals and may demonstrate that changes are appropriate and mutually desirable in the Development Approvals, except that minor modifications to the Development Agreement, as determined by the Director of Community Development to not be a substantial change in the proposed Project or conditions of approval, can be approved by the Director of Community Development. In the event an Owner finds that a non -minor modification in the Development Approvals is necessary or appropriate as same relates to their Property, then subject to the Minor Modification Qualification, such Owner may apply for a subsequent development approval to effectuate such change and City shall process and act on such application if consistent with the terms hereof except as otherwise provided by this Agreement. 2.5 Modification or Suspension by State or Federal Law. In the event that state or federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 2.6 Intent and Purpose. The Parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority which cannot be restricted by contract pursuant to applicable law. 72500.00791\7577720.1 The provisions of this Agreement and benefits to be received by City and Owners hereunder are in the best interests of City and the health, safety, morals and welfare of its taxpayers and residents and are in accordance with the public purposes set forth in federal, state and local laws and regulations, including California Government Code Section 565865. The Parties hereby acknowledge that implementation of this Agreement and the resulting development of the Property will result in substantial public benefits that justify City's decision to execute this Agreement. These benefits include, but are not limited to, furtherance of the goals and objectives of the City's General Plan applicable to the Property, and the strengthening of the City's land use and social structure by stimulating economic activity and job creation within the City. ARTICLE 3 REMEDIES 3.1 Remedies. Each of the Parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement. However, the City shall not be liable under any circumstances for monetary damages for any breach of this Agreement or for any cause of action which arises out of this Agreement. 3.2 Specific Performance/Self Help. The Parties acknowledge that although money damages are available to the City for a breach of this Agreement, such money damages and other remedies at law generally are inadequate and specific performance and other non -monetary relief, including temporary and permanent injunctive relief, are particularly appropriate remedies for the enforcement of this Agreement by any Party and should be available to such Party because it may be difficult and impracticable to determine the sum of money which would adequately compensate such Party for breaches of this Agreement; the Parties acknowledge and agree that any injunctive or equitable relief may be ordered on an expedited, priority basis. Additionally, each Owner shall have the right of self-help (including reasonable access rights) hereunder and under any agreements referenced herein to cure any default by another Owner herein or therein if such default by such other Owner would materially and adversely affect such non -defaulting Owner. In the event an Owner exercises such right of self help, the defaulting Owner shall reimburse the non -defaulting Owner for any and all costs associated with the exercise of such self help remedy upon demand, and the non -defaulting Owner shall have the right to record a lien on the defaulting Owner's portion of the Property to secure payment of such costs. 3.3 Termination. Subject to Section 4.8 hereof, the failure of an Owner to complete or satisfy in a timely manner the Conditions of Approval applicable to such Owner per section 2.3.2, or the Development Commitments applicable to such Owner, shall constitute a material breach of this Agreement and entitle the City to terminate this Agreement with respect to such Owner, at its absolute discretion, if such breach is not cured following notice of such breach and a reasonable opportunity to cure same (which cure period shall not be, in any event, less than 30 days). For the purposes of this section 3.3, the Development Commitments shall be deemed to apply to all of the Owner except that (a) the CC&R Acknowledgement Obligation shall not be deemed to apply to Country Club Drive Investors, and (b) the Country Club Wall Extension and any obligations arising from or in connection with the Portola Landscaping Maintenance Agreement shall not be deemed to apply to VP Land or VP Builders. 72500.00791\7577720.1 ARTICLE 4 MISCELLANEOUS PROVISIONS 4.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Riverside County Recorder within the period required by Government Code Section 65868.5. 4.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter hereof, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 4.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. 4.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California, without regard to conflicts of laws principles (if applicable). This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 4.5 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 4.6 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by another Party, or the failure by a Party to exercise its rights upon the default of another Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by such other Party with the terms of this Agreement thereafter. 4.7 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 4.8 Force Majeure. No Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control, (including the Party's employment force), government regulations, court actions (such as restraining orders or injunctions), another Party's breach of this Agreement, or other causes beyond the Party's control. 72500.00791\7577720.1 Without limiting the generality of the foregoing, upon the issuance of a court order enjoining development of the Project incident to any legal proceeding by a third party to challenge the modifications to the Development Approvals as described in this Agreement or to challenge any action taken by City in connection therewith, the Term of this Agreement shall automatically be extended for the period equal to the period of the pendency of such order. 4.9 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 4.10 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and (c) is binding upon each Party and each successor in interest during their ownership of the Property or any portion thereof. Notwithstanding the foregoing, this Agreement shall be deemed to have automatically terminated without any further actions required by any of the Parties upon (a) the closing of the sale of any condominium unit within the Project to a member of the homebuying public, but only with respect to such condominium unit and the buyer thereof, and (b) the conveyance of any Project common areas to the HOA, but only with respect to such Project common areas and the HOA. 4.11 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument. 4.12 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that no Party is acting as the agent of any other Party in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement with respect to any Parties hereto. The only relationship between City and Owners is that of a government entity regulating the development of private property and the owners of such property. 4.13 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of any Party at any time, the other parties shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The provisions of this section shall not require the taking of any actions which are prohibited by law or, except as expressly set forth in this Agreement, impair the lawful discretion of City as to those matters to which the law imparts discretion to City. 72500.00791\7577720.1 4.14 Attorneys' Fees. If legal action is brought by any Party against the others for breach of this Agreement, or to compel performance under this Agreement, the prevailing Party shall be entitled to an award of reasonable attorneys' fees and litigation costs in addition to all other relief to which it may be entitled. 4.15 Cooperation in the Event of Legal Challenge. 4.15.1 The filing of any third party lawsuit(s) against City or Owners relating to this Agreement, the Development Approvals or any other Project related approvals (collectively "Project Approvals") or other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project or approval of any subsequent approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order. 4.15.2 In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, or the Project Approvals for the Project ("Project Challenge"), each Owner and City shall have the right, in its sole discretion, to elect whether or not to defend such action on its own behalf. Except as otherwise expressly provided herein, Designated Owner shall defend, indemnify, and hold harmless the City (including its agents, officers and employees) from a Project challenge with counsel chosen by the City, subject to Designated Owner's approval of counsel, which shall not be unreasonably denied, and at Designated Owner's sole expense; provided, however, that the City shall be responsible for salaries, benefits, administrative and overhead expenses incurred by the City in connection with any such defense (the "Defense and Indemnity Obligation"). If the City is aware of such an action or proceeding, it shall promptly notify Owners and cooperate in the defense. Designated Owner upon such notification shall deposit with City sufficient funds in the judgment of City Finance Director to cover the expense of the Defense and Indemnity Obligation without any offset or claim against said deposit to assure that the City expends no City funds, and City Finance Director may require additional deposits if at any time the current deposits are insufficient to assure that the City expends no City funds (the "Defense Deposit Obligation"). Any such deposited funds not utilized by the City to defend a Project Challenge shall be promptly returned to Designated Owner. Notwithstanding the foregoing, neither Designated Owner nor VP Builders shall have any obligation or responsibility hereunder pursuant to the Defense and Indemnity Obligation or the Defense Deposit Obligation, in which case Country Club Drive Investors shall be solely responsible for satisfying the Defense and Indemnity Obligation and the Defense Deposit Obligation (and entitled to a return of any unused funds), if (i) neither VP Land nor VP Builders is then in default of any obligations under this Agreement or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals, and (ii) such Project Challenge specifically involves and solely relates to the development of and/or the construction upon the Portola Parcel or was solely caused or created by the act or omission of Country Club Drive Investors (the "Designated Owner Exception"). If any Party elects to defend a Project Challenge, the Parties hereby agree to affirmatively cooperate in defending said Project Challenge and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law. As part of the cooperation in defending a Project Challenge, the Parties shall coordinate their defense in order to make the most efficient use of legal counsel and to share and protect information. Each Party shall have sole discretion to terminate its defense of a Project Challenge at any time. The City shall not settle any third party litigation of Project Approvals without Designated Owner's consent, which consent shall not be unreasonably withheld, 72500.00791 \7577720.1 conditioned or delayed, unless Designated Owner fails to deposit sufficient funds to assure defense and indemnity of the City. If Designated Owner is responsible hereunder for satisfying the Defense and Indemnity Obligation and the Defense Deposit Obligation because the Designated Owner Exception does not apply, Country Club Drive Investors, although not responsible to City hereunder for satisfying the Defense and Indemnity Obligation or the Defense Deposit Obligation, shall be responsible for reimbursing Designated Owner upon demand for 28% of the funds required from Designated Owner to satisfy the Defense and Indemnity Obligation and the Defense Deposit Obligation in accordance herewith before taking into account any reimbursement from other Owners (the "CCDI Reimbursement Obligation"), and VP Builders shall be responsible for reimbursing Designated upon demand for 36% (or as otherwise agreed to by VP Land and VP Builders) of such required funds, which obligations shall be secured by lien rights in favor of Designated Owner; provided, however, that -the CCDI Reimbursement Obligation shall not apply, and Country Club Drive Investors shall have no obligation or responsibility hereunder to the City or to VP Land nor VP Builders with respect to any aspect of the Defense and Indemnity Obligation and the Defense Deposit Obligation if (x) Country Club Drive Investors is not then in default of any obligations under this Agreement or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals, and (y) such Project Challenge specifically involves and solely relates to the development of and/or the construction upon the VP Land Parcel and/or the VP Builders Parcel or was solely caused or created by the act or omission of VP Land and/or VP Builders. 4.16 Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Law in effect as of the Effective Date. Accordingly, to the extent the subsequent amendment to the Development Agreement Law would affect the provisions of this Agreement, such amendment shall not be applicable to the Agreement unless necessary for this Agreement to be enforceable. (Signatures follow on next page) 72500.00791\7577720.1 SIGNATURE PAGE TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT CITY: CITY OF PALM DESERT a California charter city By: Its: ATTEST: By: Rachelle D. Klassen, City Clerk APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP By: Dave J. Erwin, City Attorney 72500.00791\7577720.1 SIGNATURE PAGE OF OWNERS VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT VP Land, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager En Rudy C. Herrera, Manager VP Builders, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager in Rudy C. Herrera, Manager Country Club Drive Investors, LLC, a Delaware limited liability company By: Name: Title: 72500.00791\7577720.1 EXHIBIT "A-1" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of VP Land Parcel [Attached behind this page] 72500.00791 \7577720.1 EXHIBIT "A-2" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of VP Builders Parcel [Attached behind this page] 72500.00791\7577720.1 EXHIBIT "A-3" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of Portola Parcel [Attached behind this page] 72500.00791\7577720.1 EXHIBIT "B" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT CONDITIONS OF APPROVAL 72500.00791 \7577720.1 EXHIBIT "C TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT DEPICTION OF PORTOLA RIGHT OF WAY DEDICATION 72500.00791\7577720.1 EXHIBIT "D" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FORM OF IMPROVEMENT AGREEMENT 72500.00791\7577720.1 EXHIBIT "E' TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT SIGNAL MAINTENANCE AGREEMENT 72500.00791\7577720.1 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING MODIFICATIONS TO THE PRIOR APPROVALS FOR VILLA PORTOFINO (SOUTHWEST CORNER OF PORTOLA AVENUE AND COUNTRY CLUB DRIVE) INCLUDING: A CONDITIONAL CERTIFICATE OF COMPLIANNCE TO CONFIRM THE PRIOR SUBDIVISION OF A PORTION OF THE PROPERTY; A TENTATIVE TRACT MAP; A MODIFIED PRECISE PLAN; AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT; ARCHITECTURAL ELEVATIONS FOR 72 NEW CONDOMINIUMNILLA UNITS ON LOT NO. 5 OF THE PROPOSED MAP CASE NOS: DA 11-516, PP 98-21 Amendment No. 2. and TTM 36404 WHEREAS, the Planning Commission of the City of Palm Desert, California, on the 18th day of September 2012, hold a duly noticed public hearing and approved by Resolution No. 2592 the request by Country Club Investors LLC and VP Builders/Family Development for approval of the above noted; and WHEREAS, the City Council of the City of Palm Desert, California, on the 11th day of October 2012, hold a duly noticed public hearing to consider the request by Country Club Investors LLC and VP Builders/Family Development for approval of the above noted; 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. 2012-20, in the Director of Community Development has determined that the project Villa Portofino was subject to a comprehensive CEQA review at the time it was initially approved in 1998. Since that time the project has been partially built -out. The current approvals merely reaffirm the prior approvals, and do not change them in any material way. Staff has reviewed the prior CEQA analysis and current conditions, and confirmed that there are no changes in circumstances or the project that would warrant additional CEQA review at this time. As it is clear that the reaffirmation of prior approvals will not have any significant effect on the environment, the project is categorically exempt; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said City Council did find the following facts and reasons to exist to justify approval of said request: FINDINGS: No map shall be approved unless the City Council finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the General Plan. RESOLUTION NO. 1. That the density of the proposed subdivision is consistent with applicable general and specific plans; The project was previously approved by Resolution No. 99-19 totaling 625 units. The project density and unit count will remain as previously approved. The project was approved with a General Plan Amendment and was consistent with the General Plan. In the Land Use Element under residential goals, policies, and programs a goal is to provide "a range of housing types, densities and affordabilities that accommodate existing and future residents across all socio-economic sectors of the community." The project was originally approved with a senior overlay designation, and was designed to provide increased density and special development standards to encourage the development of specialized forms of senior housing. The overlay allows densities based on a population per acre land use formula. The overlay also requires that senior housing projects include up to 25 percent affordable housing in exchange for these large density bonuses. 2. That the design or improvement of the proposed subdivision is consistent with applicable general and specific plans; The design of the residential component will result in 625 total units. No physical lots will be created. Goal 1 of the Residential Goals and Policies of the Land Use Element states that the City shall provide "a balanced range of housing types, densities and affordabilities that accommodate existing and future residents across all socio-economic sectors of the community." The proposed project broadens the range of residential product in the City by creating a unique senior living resort residential community. 3. The site is physically suitable for the type of development. The site has been previously approved by Resolution No. 99-19 for 625 total units. Although most of the property is vacant today, a portion of the approved project is built. The site has physical improvements, such as curbs and utilities already providing service to the site. The property is suitable for the proposed development as conditioned and previously approved. 4. The site is physically suitable for residential development. The proposed 75-acre site is physically suitable for residential development with access provided by two main streets, Country Club Drive and Portola Avenue. Utilities are available in the vicinity, and the property is adjacent to residential properties to the south, east and west. GAPlanning\Kevin SwartMord\Precise Plans\Villa Portofino\City Council= Resolution.doc 2 RESOLUTION NO. 5. The design of the tract map or the proposed improvements is not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. A Mitigated Negative Declaration was approved under the original entitlements, and all potential impacts were less than significant. The project as originally approved will not change, therefore the project will not cause substantial environmental damage or injure fish or wildlife or their habitat. 6. The design of the tract or type of improvements is not likely to cause serious public health problems. The design of the tract map is consistent with all provisions of the zoning ordinance. The proposed development is subject to applicable City development standards and the Uniform California Building Standards Code, which is developed under the Health and Safety Code (Section 18902), and whose purpose is to protect the health, safety, and general welfare of the public. 7. The design of the subdivision or the type of improvements will not conflict with easements acquired by the public at large, for access through or use of property within the proposed subdivision. The proposed subdivision does not interfere with any public easements acquired by the public. 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 11-516, PP 98-21 Amendment No. 2, and TTM 36404, subject to conditions. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council= Resolution.doc 3 RESOLUTION NO. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert City Council, held on this 11th day of October, 2012, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: RACHELLE KLASSEN, City Clerk Palm Desert City Council ROBERT A. SPIEGEL, Mayor GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council= Resolution.doc I:I RESOLUTION NO. CONDITIONS OF APPROVAL CASE NOS. DA 11-516, PP 98-21 Amendment No. 2, and TTM 36404 DEPARTMENT OF COMMUNITY DEVELOPMENT: 1. The development of the property shall conform substantially with exhibits on file with the Department of Community Development/Planning, as modified by the following conditions. 2. 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 City Fire Marshal Public Works Department Evidence of said permit or clearance from the above agencies shall be presented to the Department of Building & Safety at the time of issuance of a building permit for the use contemplated herewith. 3. Prior to issuance of any additional building permits for the Project, Designated Owner shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Country Club Drive, including the median, and all retention basins within the Project (the "Landscaping Maintenance Agreement"). The Landscaping Maintenance Agreement may be assigned by Designated Owner to the HOA. Prior to the issuance of the first certificate of occupancy or completion for the Portola Parcel, Country Club Drive Investors, successors and assigns, shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Portola Avenue (the "Portola Landscaping Maintenance Agreement"). All to be consistent with the Property Maintenance Ordinance (Ordinance No. 801), the approved landscape plan, and the current addition of the City of Palm Desert Plant Maintenance Guide. 4. Access to trash/service areas shall be placed so as not to conflict with parking areas. The applicant shall contact Burrtec Waste and Recycling, Inc. to provide trash and recycling services that shall include the provisions of and operation of a stinger/bin truck to maneuver the bins to a collection area above ground from within the underground service area. Depending on the location of the trash and recycle bins, the trash enclosures may be required and shall be consistent with the Palm Desert Municipal Code Chapter 8.12 and other conditions, such as number, size, and location of enclosures to accommodate the required number of bins. All bins or enclosures must be screened from public view. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portotino\City Council= Resolution.doc 5 RESOLUTION NO. 5. All sidewalk plans shall be reviewed and approved by the Department of Public Works. 6. The applicant shall submit design development plans to the Architectural Review Commission before review of the construction drawings by the City. 7. All conditions of approval shall be recorded with the Riverside County Clerk's office before any building permits are issued. Evidence of recordation shall be submitted to the Department of Community Development/Planning. 8. The Final Development Agreement shall be recorded within 40 days of final approval of the project by the City Council. 9. Prior to the City issuing any building permits for Lot 3 and Lot 4 on Tentative Tract Map 36404, the existing block wall on Country Club Drive shall be extended to the adjoining city owned fire station parcel. 10. Applicants shall defend, indemnify and hold harmless the city against any third party legal challenge to these approvals, with counsel chosen by the city at applicants expense. The defense obligation is described in more detail in the Amended and Restated Development Agreement. 11. None of these project approvals is valid until recordation of the certificate of approval and the Development Agreement. If a court voids any of the project approvals, including the Certificate of Compliance or Development Agreement, all of the development approvals shall be null and void. 12. The City Council approval of the Certificate of Compliance is to retroactively approve the prior unapproved subdivision of the property. 13. Developer shall enter into a recordable Development Agreement to memorialize these and other conditions placed on the project. DEPARTMENT OF PUBLIC WORKS: Prior to recordation of the Tract Map and any permits: 1. The applicant shall not be placed on the agenda for the first reading of City Council until the preliminary WQMP is approved. 2. The final tract map shall be submitted to the Director of Public Works for review and approval. 3. Dedicate additional right of way for ultimate improvements at Portola Avenue secondary access as set forth as Lot B of the tentative tract map. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council= Resolution.doc R RESOLUTION NO. 4. The final tract map shall dedicate an additional 11' of right-of-way along Country Club Drive for a total of 55' from center line as set forth as lot A thereon. 5. Reciprocal access easements and drainage easements between lots shall be provided for on the final tract map or in the CC&R's. 6. The final tract map shall provide for a public 20' pedestrian easement and a private 20' landscape easement within the 20' adjoining and along Portola Avenue, and a private 20' landscape easement along Country Club Drive, in addition to the street right of way noted above, as set forth on the tentative tract map. An additional public pedestrian easement may be required on Country Club Drive for any portion of sidewalk beyond 55-feet south of the street centerline. 7. Prior to City Council approval of the final tract map, the applicant shall construct or enter into a subdivision agreement and post security, in a form and amount acceptable to the City Engineer, guaranteeing the construction of all off -site improvements. Improvements, as specified in the Development Agreement, shall include: a. Improvements on Portola Avenue including, but not limited to, the installation of curb and gutter, asphalt paving, an 8' ADA compliant meandering sidewalk, and a deceleration lane. Design shall be per the approved site plan. b. Full Improvements of the secondary access. The construction of an emergency vehicle access road per section 2.21 of the Development Agreement shall be completed before issuance of any additional building permits for the project. 8. The emergency vehicle access road to Portola Avenue may be used by construction traffic through the use of transponders or other means to actuate the gates for the passing of each construction vehicle. The gates are not to be left open at any time, except for Fire Department emergencies. The applicant is responsible to ensure that public traffic and residents do not use this access road. Construction access on the emergency vehicle access road is subject to review by the Director of Public Works and may be revoked at any time. 9. Access rights shall be restricted along Portola Avenue except at the "Secondary Access". 10. The construction of a block wall on Country Club Drive prior to issuance of any building permits for units within Lots 3 and/or 4. 11. Landscaping along Portola Avenue frontage shall be completed when development within Lots 3 and/or 4 occurs. GAPlanning\Kevin SwartMord\Precise Plans\Villa Portofino\City Council= Resolution.doc 7 RESOLUTION NO. 11. The applicant shall pay the appropriate signalization fee in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55 and drainage fee in accordance with Section 26.49 of Palm Desert Municipal Code and Palm Desert Ordinance Number 653. 12. The applicant will execute a recordable covenant agreeing to be bound by existing CC&R's and to execute future amendments. Prior to any further condominium plans being recorded, the applicant shall: 13. Record the final tract map. The condominium plans shall reference the final tract map recording information. 14. Submit a sample grant deed relative to the conveyance of the units, and the condominium plan, to the Public Works Department for review prior to the recording of any further condominium plans and related deeds. Prior to the issuance of grading permits the applicant shall: 15. Provide the City Engineer with evidence that a Notice of Intent (NOI) has been filed with the State Water Resources Control Board. Such evidence shall consist of a copy of the NOI stamped by the State Water Resources Control Board or the Regional Water Quality Control Board, or a letter from either agency stating that the NOI has been filed. 16. Submit a final Water Quality Management Plan (WQMP) for approval. The WQMP shall identify the Best Management Practices (BMPs) that will be used on the site to control predictable pollutant runoff. Prior to the issuance of grading permit, the Operation and Maintenance Section of the approved final WQMP shall be recorded with County's Recorder Office and a conformed copy shall be provided to the Public Works Department. 17. Storm drain/retention area 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. 18. Submit a PM10 application for approval. The applicant shall comply with all provisions of Palm Desert Municipal Code Section 24.12 regarding Fugitive Dust Control. 19. Submit precise grading plans for review and approval. Pad elevations on precise grading plans shall conform to the range of elevations shown on the preliminary grading plans approved by Planning Commission. 20. Identify all proposed and existing utilities on the precise grading plan. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council= Resolution.doc N. RESOLUTION NO. 21. Submit a landscape plan concurrently with the precise grading plan for review and approval. Applicants are advised to use the City of Palm Desert Design Guide when designing plans. Landscape plans must meet the following criteria: a. Must be water efficient in design and meet the City of Palm Desert's Water Efficient Landscape Ordinance. b. Planting plans must show location of proposed and existing utilities. c. Must match approved civil plans. d. All specs and details must be site specific. e. Applicants must have CVWD approval of their irrigation plans prior to City approval. f. Applicants must have a stamp or signature from the County Agricultural Commissioner before City approval. 22. Any deviation from the approved plans shall be reviewed for approval by the City Engineer prior to work commencing. 23. The applicant shall enter into a landscape maintenance agreement as specified in the Development Agreement. DEPARTMENT OF BUILDING AND SAFETY: 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 (Based on the 2008 Energy Efficiency Standards) 2007 CALIFORNIA BUILDING STANDARDS ADMINISTRATIVE CODE 2007 CALIFORNIA FIRE CODE RIVERSIDE COUNTY FIRE DEPARTMENT: The Fire Department requires the following fire protection measures be provided in accordance with the City of Palm Desert Municipal Code, 2007 California Building and Fire Codes with applicable NFPA and or any other nationally recognized Fire Protection Standards. The Fire Department shall set the minimum fire flow for the remodel or construction of al buildings per California Fire Code Appendix B. 2. The applicant shall provide a fire flow of 1500 gpm for a 1-hour duration at 20 psi residual pressure from a permanently installed Fired Hydrant before any combustible material is placed on the job site. GAPlanning\Kevin Swartz\Word\Predse Plans\Villa Portofino\City Council= Resolution.doc E RESOLUTION NO. 3. The applicant shall provided proof the existing water system is capable of providing the minimum necessary gpm fire flow for 2500 gpm for multifamily dwellings prior to any project approvals. 4. The applicant shall provide the required fire flow from a permanent wet Barrel Super Hydrant with 14' and 2-2'/2" discharge outlets located not less than 25' and no more than 165' from any portion of a multifamily dwelling prior to any building permits approvals. 5. The applicant shall submit water plans to be reviewed and approved by the Fire Marshal and include verification that the water system is capable of providing the required fire flow. 6. The applicant shall install a complete NFPA 13 fire sprinkler system. This applies to all buildings with a 3000 square foot total cumulative floor area. The Fire Marshal shall approve the locations of all fire appliances including Post Indicator Valves, Fire Department Connections and Fire Hydrants. All Fire Appliances shall not be within 25 feet of a building and all Fire Department Connections shall be within 50 feet of a Fire Hydrant. 7. All valves controlling the water supply for automatic sprinkler systems and water - flow switches shall be monitored and alarmed per the 2007 California Building and Fire Code. 8. The applicant shall install a complete NFPA 72 Fire Alarm/Sprinkler Monitoring system as required by the 2007 California Building and Fire Code. 9. The applicant shall install portable fire extinguishers as per NFPA 10. The applicant shall install a minimum of 1-2A10BC Fire Extinguisher for every 3,000 square feet, 3' to 5' above grade with no more than 75' walking distance from any point of the business to the extinguisher. The applicant shall install a "K" class fire extinguisher as required for commercial kitchens within 30' of the hazard area. 10. The applicant shall install a Hood/Duct Fire Suppression system as per NFPA 96 for all public commercial and private cooking operations with the exception of a single-family residence. 11. The applicant shall install an all weather Fire Department accessible roadway extending to any portion of the building where as a 150' hose lay can be utilized for the inaccessible building perimeter. Construction type of the same shall be approved by the Fire Marshal and be rated for 80,000 lbs. Turf block will not be accepted. Fire lane access roadway minimum width is 20' and height clearance is 13'6" Public roadway minimum unobstructed width is 36' with parking on both sides. A Fire Apparatus Turn around shall be provided for dead end streets in excess of 150' in length with approved cul-de-sac or hammer head dimensions. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council= Resolution.doc 10 RESOLUTION NO. 12. Knox access devices shall be provided as follows: • A Knox Padlock for every manual gated entrance. 13. The applicant shall install an illuminated building address in accordance to the city standards for size and location. The building address shall be installed on the building in an unobstructed locale and the color shall be contrasting to background. 14. The applicant shall submit three sets of the following plans for review including tenant improvement: • Fire Alarm System • Sprinkler System • Fire Main Underground • Hood Suppression System • Site Plan to Scale 15. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. GAPlanning\Kevin Swartz\Word\Precise Plans\Villa Portofino\City Council= Resolution.doc 11 RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: City Clerk's Office City of Palm desert 73-510 Fred Waring Drive Pam Desert, CA 92260-2578 FOR THE BENEFIT OF THE CITY OF PALM DESERT — NO FEE — GOV'T CODE SECTION 6103 (This Space for Recorder's use Only) CONDITIONAL CERTIFICATE OF COMPLIANCE LOT 1 OF TRACT 29489 72500.00791\7572897.1 DRAFT 9/4/12 CONDITIONAL CERTIFICATE OF COMPLIANCE This Conditional Certificate of Compliance (this "Certificate") is being issued by the City of Palm Desert, California ("City") pursuant to and in accordance with the terms of Section 66499.35(b) of the California Government Code and local ordinances enacted by the City pursuant thereto. All references to Sections hereunder shall mean and refer to the corresponding Section of the California Government Code unless otherwise stated. This Certificate relates only to issues of compliance or noncompliance with the Subdivision Map Act and local ordinances enacted pursuant thereto. The parcels described herein may be sold, leased, or financed without further compliance with the Subdivision Map Act or any local ordinance enacted pursuant thereto. Development of the parcels may require issuance of a permit or permits, or other grant or grants of approval. Lot 1 of Tract No. 29489 (the "Master Parcel") as shown by Map on file in Book 311 Pages 60 and 61 of Maps, records of Riverside County (the "Tract Map") was not initially approved for condominium purposes. However, the Condo Plans (as hereafter defined) were recorded against the Master Parcel, building permits were issued by the City to construct condominium units within the Master Parcel, certificates of occupancy have been issued for condominium units constructed within the Master Parcel and completed condominium units within the Master Parcel have been sold to buyers. Additionally, the Master Parcel has been effectively subdivided into the Five Parcels (as hereafter defined) based upon the perimeter descriptions and depictions of various condominium phases that were set forth in the Condo Plans. Upon satisfaction of the Map Recordation Condition (as set forth below), the owners of the Master Parcel shall have fulfilled the City's conditions to have (1) the Tract Map retroactively deemed to be a final map for condominium purposes, with the approved number of condominium unit as set forth herein, and (2) the Condo Plans retroactively deemed to be final maps with respect to the Five Parcels pursuant to the terms hereof. The "Map Recordation Condition" that must be satisfied prior to this Certificate becoming effective is the filing of record of a Final Map (the "Final Project Map") derived from and based upon the final version of Tentative Tract Map No. 36404 approved by the City (the "TTM"). The TTM, which is applicable to portions of the Master Parcel, is attached hereto as Exhibit "A". This Certificate includes references to, shall be read and interpreted in conjunction with, the Final Project Map. The Five Parcels are included in or otherwise depicted on the Final Project Map as more particularly described herein below. Upon recordation in the official records of Riverside County, California, and upon the filing of record of the Final Project Map, this Certificate shall confirm and establish, in compliance with the requirements of the Subdivision Map Act and any City ordinances enacted pursuant thereto, that (i) the Tract Map is and shall be deemed to be, on a retroactive basis as set forth herein, a final map for condominium purposes, and (ii) the Condo Plans are and shall be deemed to be, as applicable and on a retroactive basis as set forth herein, final maps for condominium purposes with respect to the Phase 1 Parcel (as hereafter defined), the Phase 2 Parcel (as hereafter 72500.00791\7572897.1 DRAFT 9/4/12 defined), the Phase 3 Parcel (as hereafter defined), the Remainder Parcel (as hereafter defined) and the Clubhouse Parcel (as hereafter defined). PARCELS CONFIRMED BY THIS CERTIFICATE Pursuant to this Certificate, and on and as of January 23, 2002, the Phase 1 Map (as hereafter defined) shall be deemed and considered to constitute a Final Map for condominium purposes with respect to Phase 1 (for a maximum of 72 units within Phase 1) as such Phase 1 is shown and depicted on the Phase 1 Map (the "Phase 1 Parcel"), which Phase 1 Parcel shall deemed to be accurately set forth on the Final Project Map as Condominium Plans Phase 1 (N.A.P.). The Phase 1 Parcel is currently recognized as Assessor's Parcel Number 622-020-020-031. Pursuant to this Certificate, and on and as of December 28, 2007, the Phase 2 Map (as hereafter defined) shall be deemed and considered to constitute a Final Map for condominium purposes with respect to (a) Phase 2 (for a maximum of 40 units within Phase 2) as such Phase 2 is shown and depicted on the Phase 2 Map (the "Phase 2 Parcel"), which Phase 2 Parcel shall deemed to be accurately set forth on the Final Project Map as Lot 2 thereof, and (b) Module 4, Module 5, Module 6 and Module 7, but excluding therefrom any portion of "Lot A" included within Module 6 and Module 7 (collectively on a combined basis so as to comprise a single parcel, the "Module") (for a maximum of 238 units within the Module), as such Module is shown and depicted on the Phase 2 Map (the "Remainder Parcel"), which Remainder Parcel shall deemed to be accurately set forth on the Final Project Map as Lot 1 thereof. The Phase 2 Parcel is currently recognized as Assessor's Parcel Number 622-020-093, and the Remainder Parcel is currently recognized as a portion Assessor's Parcel Number 622-020-094 (with the other portion being the Clubhouse Parcel). Pursuant to this Certificate, and on and as of November 30, 2004, the Phase 3 Map (as hereafter defined) shall be deemed and considered to constitute a Final Map for condominium purposes with respect to Phase 3 (for a maximum of 120 units within Phase 3) as such Phase 3 is shown and depicted on the Phase 3 Map (the "Phase 3 Parcel"), which Phase 3 Parcel shall deemed to be accurately set forth on the Final Project Map, on a collective basis, as Lot 5 and Portion of Condominium Plans Phase 3. The Phase 3 Parcel is currently recognized as Assessor's Parcel Number 622-020-091. Pursuant to this Certificate, and on and as of December 28, 2007, the Phase 2 Map shall be deemed and considered to constitute a Final Map with respect to Future Phase 2A as same is shown and depicted on the Phase 2 Map (the "Clubhouse Parcel"), which Clubhouse Parcel shall deemed to be accurately set forth on the Final Project Map as Lot "C" thereof. The Clubhouse Parcel is currently recognized as a portion Assessor's Parcel Number 622-020-094 (with the other portion being the Remainder Parcel). As used herein the term "Phase 1 Map" means the applicable portions of that certain Condominium Plan for Villa Portofino Phase 1 recorded in the official records of Riverside County on January 23, 2002 as Instrument Number 2002-038727, as amended by document recorded December 28, 2007 as Instrument Number 2007-0769812. As used herein the term "Phase 2 Map" means the applicable portions of that certain Condominium Plan for Villa 2 72500.00791\757 2897. 1 DRAFT 9/4/12 Portofino Phase 2 recorded in the official records of Riverside County on December 28, 2007 as Instrument Number 2007-0770586. As used herein the term "Phase 3 Map" means the applicable portions of that certain Condominium Plan for Villa Portofino Phase 3 recorded in the official records of Riverside County on November 30, 2004 as Instrument Number 2004-0950249, as amended with respect to condominium plan purposes only by document recorded March 2, 2012 as Instrument Number 2012-0095989 and as further amended with respect to condominium plan purposes only by document recorded on May 11, 2012 as Instrument Number 2012-0218376. For the avoidance of doubt, the Phase 1 Map, the Phase 2 Map and the Phase 3 Map (collectively, the "Condo Plans") also constitute condominium plans pursuant to California Civil Code Section 1351. Following the recordation of this Certificate, the Phase 1 Map shall be deemed to have established 72 individual condominium units within the Phase 1 Parcel (each a "Phase 1 Unit") on and as of January 23, 2002, The Phase 2 Map shall be deemed to have established 40 individual condominium units within the Phase 2 Parcel (each a "Phase 2 Unit") on and as of December 28, 2007, and the Phase 3 Map shall be deemed to have established 48 individual condominium units within the Phase 3 Parcel (each a "Phase 3 Unit") on and as of March 2, 2012. The Phase 1 Units, the Phase 2 Units and the Phase 3 Units may be individually referred to herein as a "Unit" and are collectively referred to herein as the "Units". OWNERSHIP OF THE ESTABLISHED PARCELS EXCLUSIVE OF THE UNITS CREATED THEREIN (as of the Certificate recording date) Phase 1 Parcel: Palm Desert Villa Portofino Homeowners' Association, a California non- profit mutual benefit corporation (the "HOA"). Phase 2 Parcel: VP Land, LLC, a Colorado limited liability company ("VP Land"). Phase 3 Parcel: VP Builders, LLC, a Colorado limited liability company ("VP Builders"). Remainder Parcel: VP Land Clubhouse Parcel: VP Land This Conditional Certificate of Compliance runs with the land and, as a result of the retroactive nature of this Certificate, benefits the predecessors and the successors in interest to each of the foregoing parties with respect to the parcels established or confirmed hereunder. Following the confirmation of the Phase 1 Parcel in accordance herewith, the Phase 1 Units shall be deemed to have been immediately and retroactively established pursuant to the Phase 1 Map and the HOA shall be deemed to have quit claimed any interest in the Phase 1 Units to the respective title holder of record as of the date this Certificate is recorded, Following the confirmation of the Phase 2 Parcel in accordance herewith, the Phase 2 Units shall be deemed to have been immediately and retroactively established pursuant to the Phase 2 Map and VP Land shall be deemed to have quit claimed any interest in the Phase 2 Units to the respective title holder of record as of the date this Certificate is recorded, and following the confirmation of the Phase 3 Parcel in accordance herewith, the Phase 3 Units shall be deemed to have been immediately and 72500.00791\7572897.1 DRAFT 9/4/12 retroactively established pursuant to the Phase 3 Map and VP Builders shall be deemed to have quit claimed any interest in the Phase 3 Units to the respective title holder of record as of the date this Certificate is recorded. PARTIES REQUESTING THIS CERTIFICATE OF COMPLIANCE The issuance of this Conditional Certificate of Compliance by the City has been requested by: (1) the HOA with respect to the Phase 1 Parcel (exclusive of the Phase 1 Units); (2) VP Land with respect to the Phase 2 Parcel (exclusive of the Phase 2 Units), the Clubhouse Parcel and the Remainder Parcel; and (3) VP Builders with respect to the Phase 3 Parcel (exclusive of the Phase 3 Units not owned by VP Builders). This Certificate may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The City of Palm Desert has found and determined that the requirements of the Subdivision Map Act and City ordinances enacted pursuant thereto have been satisfied with respect to (i) deeming the Tract Map, on a retroactive basis, to be for condominium purposes, and (ii) deeming the Condo Plans, on a retroactive basis, to be final maps for condominium purposes with respect to the establishment of the Phase 1 Parcel, the Phase 2 Parcel, the Phase 3 Parcel, the Remainder Parcel and the Clubhouse Parcel all as more particularly set forth in this Certificate. The City hereby approves and issues this Conditional Certificate of Compliance to certify and confirm the foregoing. Executed this _ day of , 2012. City of Palm Desert, California ATTEST City of Palm Desert, California 4 72500.00791\7572897.1 DRAFT 9/4/12 SIGNATURE PAGE OF REQUESTING OWNERS CONDITIONAL CERTIFICATE OF COMPLIANCE LOT I OF TRACT 29489 The following parties hereby acknowledge and agree that they have knowledge of and consent to the recordation of this Certificate of Compliance, and that to the best of their knowledge, (i) they are the record owners of parcels subdivided by this Conditional Certificate of Compliance, subject to any third party ownership of the Units, and (ii) the information set forth in the conditional Certificate of Compliance is true and correct. VP Builders, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager Un Rudy C. Herrera, Manager VP Land, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager wo Rudy C. Herrera, Manager Palm Desert Villa Portofino Homeowners' Association, a California non-profit mutual benefit corporation 7 5 72500.00791\7572897.1 DRAFT 9/4/12 EXHIBIT "A" Approved Form of the TTM (see following pages) 72500.00791\7572897.1 DRAFT 9/4/12 PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 the first meeting in October; and 2) the City Council extended a temporary signage program for 90 days. The program was devised and initiated early in the summer to assist residential home builders with better visibility during the weekends for their marketing efforts. Staff hopes to address the signage program during the update of the zoning ordinance to see if it should be a permanent program. V. ORAL COMMUNICATIONS None VI. CONSENT CALENDAR A. MINUTES of the Planning Commission *Oting of September 4, 2012. Rec: By Minute Motion, approve B. REQUEST FOR CONS I D E RATION"dVan extension for Tentative 36338 at Avondale Country Club. Applicants) Upon a motion by Lirnont, secdliyi b '1anndrfl-grad 5-0 vote of the Planning Commission, the ConsentCalendar was ap 'Led as presented. VII. CONSENT ITEMS HELD OVER , None....;..,... Vlll. ,:,PUBLIC HEARINGS REQUEST FOWRECOMMENDATION to the City Council for consideration of modifications t4'the prior approvals for Villa Portofino (southwest corner of PtSrtola Avenueiand Country Club Drive) including: a conditional Certificate of Compliance taii>bnfirm the prior subdivision of a portion of property; a Tentativdx,Tracf'Map; a modified Precise Plan; an amended and restated Developrretit''Agreement; architectural elevations for 72 new condominium units on Lot No. 5 of the proposed map; and an exception to the current moratorium to allow roof decks. Case Nos. DA 11-516, PP 98-21 Amendment No. 2. and TTM 36404 (VP Builders, LLC, 76-081 Fred Waring Drive, Palm Desert; and Country Club Drive Investors, LLC, 28071 Las Brisas Del Mar, San Juan Capistrano, Applicants). Commissioners Nancy Del-una and Van Tanner recused themselves from participating due to potential conflicts of interest. 2 C\Do[uments and Sed'mgsbnoredlyUo Settings\Temporary Internet Files\Conteml Oudock\SFJR FM1812 min, dmx PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Kevin Swartz, Assistant Planner, reported that on February 25, 1999, the City Council approved Ordinance No. 907 for a Senior Housing Development Agreement, a General Plan Amendment, a Change of Zone, and Precise Plan 98-21 for a health and wellness resort known as Villa Portofino. The project consisted of 161-bed skilled nursing facility, 150-bed assisted living facility, 288 villa units, and 182 casita units. In September 2000, the City approved a Parcel Map Waiver creating the 13-acre parcel along Portola Avenue. He displayed tract maps. He continued to report that sometime between 2001 and 2004, the previous property owner submitted a condominium plan to the Department of Real Estate without City approval, When recorded with the County of Riverside, the plan resulted in unapproved parcels that still exist today. In 2008, the developer reported thatfie "sold the 13-acre parcel, including the Portola Avenue frontage required to beb..improved under the Development Agreement for the dedication of Portola Avenue. The property transfer was done without the approvai of the City, which"is,required by the Development Agreement. Sometime after 2008, Royce International filed for bankruptcy and the unapproved parcels became bank -owned. The parcels were then sold to new owners. Mr. Swartz;staYed that today there are three owners: Country Club, LLC, owns the'13;acre parcel on Portola Avenue; VP Builders/Family Development, owns a 40-acre parcel and a 22.6-acre parcel; and JJL Propertylnvestments owns 1'a 21 acres. Over recent weeks, Family Development received a title: report. The'title report concluded that VP Builders/Family Development owns the.c©mmon area within the 11.21-acre parcel, and JJU, Property Investments onlyl,cwns the airspace for the 40 condos He; stated .=V? Builders/Family Development and Country Club Investors submitted an applicatiorrto move forward. The original entitlements in regardsto density,', it count, setbacks, building height (if roof decks are denied), anit parkin4 Niilf.` remain the same as previously approved. The site consists of a giubhouse, 36 casita:units, and 84 condominium/villas units. Mr. Swarti-stated thaxtwo property owners are requesting to bring the property back into compliance by amending the Development Agreement to address issues including, but" not limited to: ownership; amending the CC&Rs; ::!:,construction of`the temporary emergency vehicle access road (off of Portola 'and having to be installed before the next building permit issuance); a bonding for Porto)a Avenue and the secondary access road improvements, creating City, approved parcels through a conditional Certificate of Compliance;:; Tentative Tract Map 36404; and coming to a conclusion regarding -the unapproved pad height elevations on the 11.21-acre parcel abutting Casablanca. The Tentative Tract Map and Certificate of Compliance will approve prior subdivisions of the property that do not comply with the Subdivision Map Act today. The Tentative Tract Map will also include the dedication of Portola Avenue right-of-way. Prior to the recording of the final map, the owners will enter into an improvement agreement with the City to address the construction as outlined in Section 2.2.3 of the Development Agreement. The applicants would also provide an improvement bond for the completion of Portola Avenue right-of-way and the secondary access 3 C\Dowments and SeVings\moreilly\Loral SeVings\Temporary Internet Files\ContentDuto %FJXXF28\ 18-12 min dov PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 permanent improvements. The applicants have agreed to complete the bonded improvements within two years of when the Development Agreement and final map are recorded. In regards to the unapproved pad heights abutting Casablanca, in 2008 the City rescinded an approved grading plan when differences between the pad elevation shown on the precise grading plan and the mass grading plan were discovered. The proposed pad elevations on the rescinded grading plan range from 219 to 222 feet, which were much higherthan the original mass grading plan elevations (ranging from 214 to 21fi'fieet). During that time period, residents from Casablanca expressed::their concern with the pad elevations to City staff and the City Council:"Staff informed all parties interested in the project that the unimproved=pad heights would have to be corrected before structures are constructed. Today the proposed preliminary grading plan attached to the tract map'sjhows the pad elevations range from 215 to 217 feet. This is one foot; tp two feet higher than;he, 2000 mass grading plan. Staff's concerns witft'the proposed pad elevations: arise from complaints driven by Casablanca residents„sho from a drainage standpoint. The City Engineer states that the li pad' height elevations will drain appropriately. Earlier in the year, the applicant held a neighborhood meeting with Casablanca and Vtlla :.P:ortofino '`residents. VP Builders/Family Development notified the City that: they have a 4signed agreement in place stating that Casablanca apprbyes the ptop,,sed pail height elevations. Since JJL Property.Inve`stors owns a.portion of that=property and is not part of the entitlements,, staft recjUested a letter from Casablanca acknowledging that they understand that copstruction:or removal of the dirt may not commence within several years. Today the top of the dirt pad height ranges from 220 to 221 feet ahti<the pGoposadnpad elevations would go to 215 to 217 feet. Mr. Swartz displayed, photos of t,h#,:pads. He indicated that the letter from Casablanca homeowners' association dated August 29, 2012, is attached to the staff report irr` support of the proposed pad height elevations, and acknowledging. that Lcif2 may not be graded or constructed for several years. He stated that'since receiving the letter, several residents from Casablanca reported that they, still have concerns with the pad heights remaining at the unapproved height. Since JJL Property Investors owns a portion of the lot and is natpart of the.'current application, the City cannot condition the applicant to restoreilthe pad heights to the elevations shown on the preliminary grading plan untit'construction occurs. Casablanca does have an agreement with VP Builders/Family Development to stabilize and maintain the pads in the meantime. If dust control becomes an issue, the City will involve Code Enforcement. Mr. Swartz stated VP Builders/Family Development is proposing 72 condominium/villa units on Lot 5 of the Tentative Tract Map. He displayed a photo of the lots. He continued that on August 28, 2012, the Architectural Review Commission approved the proposed 72 condominium/villa units. The C Zoeuments and Servings\moreilly\Loral Settings\Temporary Internet PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 applicants are proposing six buildings with 12 units per building, which is consistent with the existing approvals. The proposed buildings will be consistent and match the existing Tuscany architectural style. The stucco, wrought iron treatments, clay tile, and colors will be compatible with the current architecture. He noted that the original units were approved with covered carports. The applicant is proposing tandem garages per unit. In addition, the applicant is proposing the rectangular buildings to include two elevators each instead of one elevator. VP Builders/Family Development is requesting to the current moratorium to allow roof decks on the proposed72 units. On February 9, 2012, the City Council adopted Urgency Ordiiiai`c8-t4o. 1232 on the issuance of building permits, conditional permits;;;'and 'other entitlements for construction of roof decks. Mr. Swartz,eXplained that ttje,,City Council has always been adamant on maintaining.prtvacy of residents. 1`N building height of the proposed six buildings is 31 pfeet'2 inches, and is currerho what is out there today. The building height{'with the proposed roof decks goes to approximately 36 feet to the top of, ithe pitei' During the original public hearings, Palm Desert Greens residents woWconcerned with the height and privacy views of the buildings,along Countij,,Club Drive. Mr. Swartz reported that the applicant scheduled.a,r eighborG ,meeting for September 12, 2012, and invited residen*from' Palrn Des .Greens and current Villa Portofino residents. The awbGcant Pro*ided a lindibf sight study showing a person sranainglon Greens homes. S residents.466ld be line of sight,studies like to show to tN based on the'oreivii ne the d roof decks would pose a thre is and recommends that no He mentioned that two letters decks have been received j'towait'tffie' rear yard of Palm Desert privacy'of the Palm Desert Greens I. He stated that the applicant has new >t, and west here today that they would ssion. Mr. Swartz communicated that dies that the applicant submitted, staff at to the privacy of exception to the opposing the roof Me',Swartz reported that there is also a letter from JJL Property Investors, and they :are here tct express their concerns to the Commission. Staff is recommendirrg> approval to the City Council for the modifications to Precise Plan 98-2#;iainended and restated Development Agreement, Tentative Tract No. 36404, a Conditional Certificate of Compliance, and 72 new condominium/villa units without the proposed roof decks. He offered to answer questions. Commissioner Connor Limont asked for clarification that the buildings would be 31' 2" with an elevated pad height of one to two feet. 5 C \documents and Seeings\moredIy\loeal Senings\Temporary Internet Rles\Content 0utlmk\5FJNXF28\P1 B-12 min.dMx PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Swartz responded no and displayed a photo of the location of the future casita units. He noted that the 72 condominium units are consistent with the existing villas at 31 feet in height. Commissioner Limont asked for clarification that the two -bedroom units would only have one parking spot per condo. Mr. Swartz replied yes. The condos and villas were approved for one parking stall, which is allowed since it is under the Senior Overlay Zone. Commissioner Roger Dash understood that there;was one owner at one time, now there are three owners. The original plan; wasi to have skilled nursing, assisted living, condominiums, and casitas. He askedif:that's still the plan or are they talking about different lots. Mr. Swartz answered it is still the, plan. What they are talking about is legalizing the parcels. The skilled ('living anci4ssisted livings were always approved for the 13 acres. The skilled nursingfis'Yo the north, and the assisted living is to the south. The project is pr6p4se4for 288 villa units and 182 casita units, which is consistent witM.the original'etrtitlements. Commissioner Dash stated that the lots are owned by different people. He asked if they are all working together,to'provide tfie services as identified. Mr. Swartz responded:two of the three property owners are working together. The third pi owneii is still looking at title reports and figuring out what he owns. At this time the gfner two owners are moving forward. Chair Campbell declared` thepubiidhearing open and invited the Applicant to addre§s the, -Commission on this matter, followed by any public testimony IN FAVOR or OPPbSITIOlith, Mr. Rudy Herrera, VW# Builders/Family Development, handed to staff 30 signed letters fro`in the current Villa Portofino homeowners in support of the roof decks and tY a proposed project at Villa Portofino. He acknowledged and thanked staffz frdm the Planning Department, Engineering Division, the Directors-tt e4 !'dity Attorney, and the City Manager for working hard to put them on`tte Planning Commission agenda tonight. Mr. Herrera stated that this has been the most difficult entitlement process of his career. At the beginning of the entitlement process there were three property owners: VP Builders, JJL Property Investments, and Country Club Investors. They were working together to work out the various issues. However, Mr. Herrera stated, along the way JJL Property Investments, the owner of the 40 airspace units in Lot 2, went completely dark to VP Builders, Country Club Investors, and to the City in regards to mapping and the entitlement process. JJL Property Investments previously worked with them on a day-to-day basis up until the 6 C\Documents and Senings\moreilly\Local Sidtings\Temporary Intemet Flles\Content.Outloo,SHXXF28\ 18-12 min docx PRELIMINARY MINUTES PALM DESERT PLANNING SEPTEMBER 18, 2012 issue of ownership of Lot 2 arose. It left the other two owners with no alternative but to move forward without JJL Property Investments. At this time, JJL Property Investments are not part of the Planning Commission process. They are not gaining or losing entitlement rights. Mr. Herrera communicated when they entered into the due diligence process to purchase the property, they knew there were issues that included: compliance with the Map Act, status of the Development Agreement, completion of the Portola Avenue improvements, CC&Rs compliance, secondary emergency access, maintenance agreements, traffic signal, landscaping, retention and drainage easements, Water Quality Management Plan, relations with Casablanca homeowners, and pad heights. He said the staff report was very well written and detailed. He stated that all the issues have eert'addressed and resolved. The only item they would like to discuss is;the roof -'decks, which they will present shortly. Mr. Herrera stated with the Planning Commission's approval, this will be the first step in closing out'a'very long list of`outstanding issues that has plagued the development:for years. The approval would also give the City certainty on the public improvements, as. well as life safety;°issues. He offered to answer questions, and requested;t6'reserve the right to address any items that might be brought up during the public testimony. Commissioner Dash inquired `who is going, to be responsible for the improvements at the beginning of Oduntry Club Drive and going south. Mr. Herrera answered VP Builders and VP Land will be bonding for those agreements with the City, and'there is a separate agreement with Country Club Investors. From the time th4l:final map is recorded, they will have two years to fully complete the Portoldi Avenue improvements. Upon recording of the final map; the dedigaGon of the 'land would be given to the City. He added toet.they would`tie;putting up -completion bonds to complete the work. If they fail dd's . the City'will have bonds -to call on to have the work completed. Commissioner Dash asked if the utility poles will be removed on Portola '^.•Avenue and if the street'would be widened. MiJierrera responded that the street would be widened to the right-of-way, and'the.poi li ibs would not be removed. He said the lines are not allowed to be uidergrounded. Commissioner Dash noted that there are no power lines exposed on Portola south of the area; beyond Hoviey there are no power lines. He asked where those lines are. Mr. Herrera replied that he did not know, but as you travel north the power lines do exist. He mentioned that due to the voltage the lines carry, they cannot be undergrounded. 7 C\Do mems and Setlings\morenlly\Local Servings\Temporary Imemet Files\ComenliXto SNW2841812 min4eax PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Vincent Barbato, VP Builders/Family Development, stated he is going to address the roof decks issue. He explained the redesign was a direct response to the market and market requests. The existing product did not have garages, and they have been told that residents prefer to have them. The existing residents also had floor plans that had certain issues, so they have addressed and corrected them as well. One of the greatest assets of the community is the views, but they realized not everybody gets to appreciate those views with the current design. Approximately 50 percent of the residents get to enjoy the views and by virtue of the zttoor plan the other 50 percent do not. The roof decks would allow all residents to enjoy the views. He explained that the units that are 12-plexes arempatible with the current 12-plexes that are there now. They have four":un�ts`d`ownstairs and eight units upstairs. Four of the units upstairs will facd,the view tq the south, and the other four units to the rear will not. Thei to the reat:will face a retention wall. In order to give those residents a view, they designedthe, roof decks so they could also look to the south and njoy the view. He saki they designed the decks towards the rear of the building, which -creates physidai barriers that prohibit people from being able to (66l nto:othd'r residences. He mentioned they completed line of sight surveys Hsf'alsg°mentioned when they met with Palm Desert Greens and'eurrent Villa Portofino to present the line of sight study, no one in attendanee'objected or raised. questions. He displayed the line of sight study, and sai&that t4distance b6tween the two properties is 200 feet. He also presented photos frOiGoogle' Earth showing the different views from Villa Portofino anciJbie sid,#'of tFtiEt�sfreet into Palm Desert Greens. Mr. Barbato:displayed new line of Sight studies and gave a brief description of different views. He stated the s6dy shows they are not affecting the privacy of any of the residents. Mr. B'erbato noted the Architectural Review Commission' support edand.approveidAhe roof decks. He asked the Planning Commission to, support the' roof" decks and thanked them for their cans'ideration. Mr.''Barbato offered to answer any questions. Commissioner: Dash asked Ms. Aylaian and referred to the ordinance that created the ° moratorium'. He said there is a statement that says, "Notwithstanding any provisions of the Municipal Code to the contrary, no issuance of permit of any nature shall be approved or any request for roof decKS within thei'f0 and a half months." He asked if that is in conflict with the request that they are faced with. Ms. Aylaian responded that the City Council can grant an exception to a moratorium. If the Planning Commission wanted to recommend the roof decks, their recommendation would go as part of the entire package for the City Council's review. The Planning Commission cannot grant an exception to the moratorium, but they can make a recommendation to the City Council that an exception be granted. Chair Campbell asked how many roof decks are on each building. 8 C:\Dwumenls and SetlingsMoreillyLLocal Settingffemponary Intemet Files\Contt.Oulo \SFJR F28\P18-12 min Cocx PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Barbato said each building has four roof decks and referred to the photo. Chair Campbell asked if all the tenants would have access to the roof decks. Mr. Barbato replied no. The only people that have access to the roof decks are the owners themselves. Chair Campbell continued with public testimony. She asked Mr. Tokheim to step up to the lectern, and stated to him that the;Planning Commission received his letter. The letter states that he did f4eceive a notice of this public hearing, and requested staff to check if W..fts notified. Mr. Swartz stated that staff sent out a r feet of the surrounding area. He mentii go through the mailing labels to verify) Some notices were returned, but.tl5e' back. During the Public Hearing, hd woi a notice was mailed out. otic&m owners of property within 300 med that he hasnot had a chance to %t a notice was sdi to Mr. Tokheim. notice to Mr. Tokhelm',,was not sent ild go through the labels to make sure Mr. Tom Tokheim, JJL Property Investmen{S;;stated that he did not receive a notice for this hearing, biaYtftat he: has in the=past. He communicated he has legal representation and consultants continuing-t;¢;work on this project. There is a question on the ownership and a.:diff@ren og V opinion regarding the ownership. Mn-Tokheim mentidned he met'Witt ., Mr. Swartz earlier in the day and receive0fa°660y oi}the notiee'and staff report. At that time, he showed Ms. AylaiaiYand Mr. Sw rtz information from his title company and his lawyer. He stated;that the tax,bm he received indicates that the parcel (Lot 2) is 11.48 acres and `not 11 21 eGresR astpresented on the photo. Correspondence he has.received'sinde closing es`crow;,tn February 2010 also references 11.48 acres: Mr4 Tokhemn said Mr. Swartz mentions ownership in his staff report, and that there is a&agreement within the City and the other organizations as far as what the; title Is; As he reviews the grant deeds, it definitely talks about real property buf he hastt}eard tonight by two individuals about airspace units. He said he is not sure if people are in agreement that it is airspace units or part:of the parcefor the entire parcel. There is a question as to the ownership of the: entire parcel, and he assured the Planning Commission that he has been r'ecej- ,all the notices and the tax bills that show the 11.84 acres. He stated that66 information has been shared with him or his partner regarding the Tentative Tract Map application. They were part of the project up until the question of ownership was raised. It came to his attention sometime in June, and there was a dormant period from April till mid June. He stated that over the summer and through vacations with a couple of different attorney firms, consultants, and title companies they have been working around vacation trying to clarify ownership. They have not opted out of any map application; they are continuing to finalize the results of their inquiries. He stated that he wished his attorneys and his civil engineers were at the meeting tonight, and 9 C\O menta and SetlingsvnoreiIlALodW Settings\Temporary Internet Files\Content.Outio \5FJMF28V 18-12 mindou PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 wished they had everything nailed down. He stated there is a question on the ownership of the entire 11.21 or 11.84 acres. What he saw today in the Tentative Tract Map application was that there is an irregular rectangle parcel on the right side sectioned off, and part of another parcel is taken up. He stated until the ownership issue is resolved, he does not know how that could be done. Aside from the ownership issue, he or his partner have no understanding of what separating the parcels would have on their ability to develop it in the future. He said he could tell from the discussions tonight there are other agreements in place with regards to4e parcel or part of the parcel that they are not knowledgeable of, and he;Ve no understanding with regards to pad heights, clean up, and stabilizetiaj. Mr. Tokheim feels that they have a right to understand what the agreemerits are for this parcel. Chair Campbell interjected and asked the City Attorney if, they could move forward or if the item needed to be continued. Mr. Dave Erwin, City Attorney, responded that there is discrIotion with the Planning Commission to move forward:. They:', ave looked at the ownership issue, and they have not seen anything!that,,Would indicate that Mr. Tokheim is owner in fee in this. There°is some question about his ownership. Mr. Erwin stated that he does not belfevelhere is anything,that would keep the Planning Commission from making a reco,rmihendation to the City Council at this time. That ownership issue, if thd4,.is a problem,anda^question, will be resolved before anything.is`dlone on the.property: Chair Campbell asked if'Lot 5 is the one in question for this evening. Mr. Erwin replied that is correct. Mr." kark;.Greenwood, Director of Public Works, clarified the map before the Planning''Commission tonight does include Lots 1 through 5. It sets pad heights on those lots;:and they are not just talking about Lot 2 or Lot 5. Commissioner Limont asked Mr. Greenwood in regards to the heights of the ottiec, parcels that are one to two feet above grading, would they also be inctudgd as partot the approval tonight. Mr. Greenwood responded that was his understanding. The pad heights were established in the Planning Commission packet that is before them tonight. Ms. Aylaian requested for Mr. Swartz to address the pad heights. She stated they left a range of pad heights that would allow for a couple of feet of latitude for parcel No. 2. 10 C \documents and Setlings\moreilly\Local servings\Temporary Internet Files\Cuntwt.Outlo PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Swartz stated the actual range is on parcel No.1, which is located in the Planning Commission packet labeled sheet No. 3A, and Lot 2 is on sheet No. 4. Mr. Tokheim recommended that this item be tabled for 30 days until the ownership issue is settled, and reports and documents could be reviewed. He would like to understand why time is of the essence. The project has had a lot of issues over the last 12 to 13 years, it had a lot of missed steps, there have been failed banks, and other things that went on. He Would think the last thing the Planning Commission would want to do is taksoine steps to move in a different direction, and then have to back up inar 60 days. He asked what is lost by another 30 days until this could be resiSNie[ a Chair Campbell referred Mr. Tokheim s question to the CityAttorney. Mr. Erwin stated that the discretion, is with the Planning Corttmission. He frankly does not believe the property issue would be resolved'in 30 days. Information indicates that Mr. Tokheim has atliovdhership of airspace from the documents they have seen so far. This is'ar�)� iue that has been dealt with for a period of time, not just tlte'last few weeks::It has been several months going through documentation ah4ihattis,the conclusion of the City Attorney at this time. Chair Campbell 04rdied if the'Plann Mr. Ervin suggested moving forwah, Commissior2r, Dash asked.;the C ownership could move forward. Attorney what is meant by airspace Mr. Erwin to�plied that he could explain as much as he can. He stated that he does not undetstand'airspace. In condominium developments, you can create airspace that Is`¢wned: " Commissioner Lilont inquired if the airspace would limit whoever builds after this. -Por example; if you have a roof deck and you say I can see so much, and the 1 Jh� iSext development comes in and they say, you can't build that height because you are taking up our airspace. Mr. Erwin stated that the airspace is within the unit itself. Mr. Swartz stated for the record that he had just reviewed the project files, and that Mr. Tokheim's name and address is on the mailing labels for the legal notices, so he is not sure why he did not receive a notice. In the future, staff will make sure he receives a notice. 11 C\O menu and Settings\moretlylotnal Settings\Temporary Internet Files\C ntenLOuth PRELIMINARY MINUTES PALM DESERT PLANNING SEPTEMBER 18, 2012 Chair Campbell also clarified that the notice was not returned. Mr. Swartz answered that was correct. Ms. Diana Plotkin, 73-730 Calle Bisque, Palm Desert, addressed the Planning Commission and said she is not a full time resident; she's here six months out of the year. She congratulated the developers for doing a wonderful job, but she has three major concerns: 1) the dedication of Portola Avenue. She hoped that the developer would take out the construction completion bond so they could finally get the Portola rights to Palm Desert. That way it can be straightened out and have sidewalks installed. -She stated that she has lived there for 12 years, and they have been wait€ng'fbi(that length of time. The corner is very dangerous. They have seen crashes atid;drunks drive up onto the property. She has been in touch with;the Planning Department regarding the dedication of Portola Avenue; , gy-Ae roof tops. If" tire. roof tops are approved, people will go up to the deck to maybe sunbathe and turn on their radio or just to talk. You will be `able to hear, the noise all overt which will radiate to Palm Desert Greens and C'dsablaridii. In addition, the roof decks will take away the view from people thathave views today in order to give new people views. It will decrease the property values for those that will be affected by the sight. With tHa;:moratorium tithe roof decks should not be considered at this time. It Wan lmla'ct,to the quaJjty of life for the rest of the people who live in the area; and 3) the 'I I the berm. The berm has existed since. tijl :Portofino started to build; 1t is seven to eight feet higher than the coda4equireskShe personally has chased people off the berm who have tried,f&climb o4e Into Casablanca. She knows for a fact that condos in Casablanca, that are closer to Monterey have been burglarized, although they can't say it f4,because°;`pt thejberm` :bat the fact remains it is dangerous. She voiced that 66"t bermshould some ,down, and it should come down now. It ;should be. no higher than the code requires, which is the law. The berm is !Jllegal and3she wo'uid encourage before any permits are issued that the Planning Conmission`arder them to reduce the berm to code. She thanked > the Planning Commission: M's.;:,Gail Christiansen, 73-820 Calle Bisque, Palm Desert, addressed the Plarrriing Corm-ni5sion and said she is the president of the Casablanca homeoWners: `association. She commented that Mr. Tokheim was talking about the pad elevations, and the Planning Commission's vote might impact on Mr. Tokheim's elevations. Her understanding is that the City Attorney has filed against that property. If there is change of ownership of any type or before anything is started development -wise, he must bring those elevations down. She feels that is a moot point. She doesn't see how that is an issue for Mr. Tokheim. She stated that she has met several times in the last year with Family Development. They have had numerous conversations over the phone and email, and negotiating for a year. Family Development has signed an agreement with Casablanca that is recorded on the property and that 12 C\Oocumenis and Seitings\moreilly\Local Settings\Temporary Internet Files\Contenl.Outiod 5FJXXF29418-12 mindoa PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 addresses the concerns of soil stabilization, maintaining the property, the elevations of the property, and setbacks. For a majority of the Casablanca homeowners, issues have been addressed by Family Development. Casablanca supports their endeavor to start development of this property. The bottom line is that all the issues will be gone once the property is built out. Once built out there will no longer be issues with elevation, sand blow, and tumbleweeds. Ms. Margaret Marshall, 403 San Michelle is representing Villa Portofino's membe Avenue and does not have the gorgeous views, and they feel like they are in Italy The members are thrilled to have Family pleased on how they are addressing dlffi the project started. She mentioned that4 you are facing Portola Avenue there rs a cover and an unfinished road in fir -on of that all owners would agree on compte:c structure when they put ,in the new aEc Portofino. She stated peopla:would like tl Palm Desert, commented that she ,s. She !stated she faces Portola views llla Portofino has fabulous vhendrivrrg into the development. Development With them. They are :lent issues,'and would like to see ie does have orieissue, which is if wire fence that hai'An ugly green the fear - Ms. Marshall requested the 4dkd and building a permanent rs§ifrom Portola Avenue into Villa visually attractive. Ms. Marsh4li'thanked the decks, and it would also be Tina Commission. Mr. Herrera apprised the Planning Co Isslon regarding the "berm" that VP Builders, VP Land]:and Family'geyel¢mentb'� entered into a maintenance agreement with Casablanca to rh#fain the dust, weeds, and to keep it from becoming urrsightly unt:it is developed. He noted that they would be covering the cost for the maintenance N said when the site is presented for development;; the issues of that paheights would be addressed per the Tentative Tract Map: Staff tteriselves, and Casablanca support the pad 6016164s'that are:txeing proposed''to the Planning Commission. Mr. Herrera stated in'light.of Mr Tokheim's letter and Mr. Swartz's acknowledgment that he was noticed, their Gamily Development's and Tom Tokheim's) attorneys exchanged a `cbriversatlion last week notifying him as well, and he indicated that his attorneyJwas not going to be present. His attorney did not know if Mr. Tokheim was going to be at the meeting so the letter was a shock. He said they were working together up until the ownership became an issue, and they had no choice but to move forward. He encouraged the Planning Commission to move forward in light of the City Attorney's comments. This ownership issue has' been very well known for several months, and if there was clarification or any documents that would prove otherwise he is sure they would be there during the hearing, yesterday, or when they knew about it. He does not think this is the forum for ownership issues; they are here to process the Tentative Tract Map, the Conditions of Approval, and the Resolution. Mr. Barbato emphasized the views and property values of residents would not be affected. They are building the two-story residences where they were 13 C \oocumente and Senings\rnoreillyLLoml Seningr\Temporary Internet Fler\Cantent0utledA5FJMF28\9-18-12 miatloax PRELIMINARY MINUTES PALM DESERT PLANNING SEPTEMBER 18, 2012 already approved and where they currently are. He noted that no two-story residences are approved to be built along the Casablanca borders. He stated they do not want to impose their will on anybody, and they have tried to embrace everybody's concerns, feelings, and sensitivities and incorporated them into what they have done. He thanked the Planning Commission for their support. With no further testimony offered, Chair Campbell declared the public hearing closed. Commissioner Limont requested a clear ungerefanding in regards to the packet, if they were to approve as propose 114 -esked if the pad height elevations on the 11.21-acre parcel are separate o'r';raft of it. She said the staff report states, the unapproved pqd heights wil bAye to be corrected to the original pad heights approved; rV1he 2000 mass `gr sting plan before structures are constructed thereon Mr. Swartz responded that the pa&-heightsy,would have to come down. Currently they are about 220 to 222 feet'°Oh the preliminary grading plan, which is attached to theT'entative Tract`Map, the proposed pad heights are 215 to 217 feet. When cotfsfriigti4r� does ocour, the pad heights would have to come down to those elevation: Commissioner -Dash.commented IIIi`s.gJlll ng to move forward with the Resolution, if he is reading it cofrimitty. He clarified that staff is supporting the project ass, presented, but not supl56rting the roof decks. Ms. Aylaiar!`replie¢thaNtas;correct" . _ ,i Commisis nerDash stated the only change he would like to see done is the Portola ditftation ,but the response is that it cannot be done. He would not delay any a0wity, for that matter. He also stated the roof decks are under investigation arul/or st6d.Y'by City staff, and he feels it would be inappropriate for the Planning'Commission to make a recommendation when it is being studied by staff ';Staff has a broader understanding of the values, the virtues, and"the,liabilib4i6f roof decks throughout the entire City. Therefore, he would have ta!waiturr l they have some resolution or recommendation from staff. If he as a` Commissioner voted one way or the other, it is going to have an influence on what staff would do and he would not want to put that burden on staff. He stated he agrees and supports the Resolution as prepared. Commissioner Limont stated the Villa Portofino project was difficult simply to read so she could only imagine the work and the efforts necessary by staff to get to the place they are today. To say that previous staff, City Council members, and Commission members with her included, missed on this project is an understatement. As a City, she feels they really blew it. They 14 COD mends and Sedinge\moreilly\tore)Setings\Temporary Internet Files\ContentOutool,SFJIDff28 1992 min.doox PRELIMINARY MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 allowed a developer to do basically what they wanted to do without the City's approval, and then walk away under the protection of bankruptcy, leaving both the lender and the City in this mess. At this point it makes sense to provide reasonable guidance to the new owners to move forward in a positive fashion; however, it does not mean compromising ordinances and making decisions that, like previous ones associated with this project, will come back to haunt existing neighbors, as well as the City and staff of Palm Desert. The roof decks are not a necessary part of the design and not currently allowed with new construction in the City of Palm Desert, and cause an extension past our City height limits. Therefore, she agrees with:; toff's recommendation to approve this proposal without allowing roof decks:';';:'' Chair Campbell concurred with the other Commissioners. and staff regarding the roof decks. The other buildings in,Villa Portofino are.excellent the way they are, and she does not feel thap"should be different: from the other buildings. In addition, there is a moratorium and the Planning ,Commission should not go against that. Commissioner Dash moved, by Minute Motion, to waive further reading and adopt Resolution No. 2592, without allowing roof decks and subject to conditions. Motion was seconded by Limont and carried by a 3-6t 'vote with DerxUna and Tanner ABSENT. Chair Campbell congratulated, the applicant, and the City looks forward to having the condorh[niums built :; .: IX. MISCELLAN5OUS A. UPDA X. COMMITTEE.MEETING UPDATES Y4. A. ART IN P661LIC PLACES None B. PARKS.& RECREATION None XI. COMMENTS Ms. Aylaian commented that staff believes there will be a Planning Commission meeting on September 18. XII. ADJOURNMENT 15 C'.\Doaments and Settings\moreilly\Local Settings\Temporary Imerner HiIes\Conlen,Oinlo ZFJMF28 1812 min.ci ox 1. Project Title: I/ I 1 A 2. Lead Agency Name and Ad 3. Contact Person and Phone Nm 4. Project Location: ":� 0 13 1 4- CovvTy Cl 0b '0 ('✓e 5. (ICII- �6a ITolC- 6. General Plan Designation: 11 `o 1 ` 7. Zoning: I LE,: 8. Desviption of Projea (Describe the whole action involved, including but not limited to later phases of the pmjcct and any secondary, support, or off -site features necessary for its implementation Attach additional sheet(s) if necessary.) a rs' 10. Other public agencies whose approval is requv agreement): „ . _ . , cd (e.g., Permits, financing approval, or participation CITY/R VPUB/1999/313785 FORM "r• Page I of 14 ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one 1 impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. ❑ Aesthetics ❑ Agriculture Resources ❑ Air Quality ❑ Biological Resources ❑ Cultural Resources ❑ Geology / Soils ❑ Hazards & Hazardous Materials ❑ Hydrology / Water Quality ❑ Land Use / Planning ❑ Mineral Resources ❑ Noise ❑ Population / Housing ❑ Public Services ❑ Recreation ❑ Transportation / Traffic ❑ Utilities / Service Systems ❑ Mandatory Findings of Significance DETERMINATION (To be completed by the Lead Agency)_ On the basis of this initial evaluation: ❑ 1 find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. ❑ I fund that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the Project proponent A MITIGATED NEGATIVE DECLARATION will be prepared. ❑ 1 find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required ❑ I find that the proposed project MAY have a "potentially significant or `potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an ' earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ❑ 1 find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are 4pojupon the proposed project, nothing further is required Siature/ Date Printed Name For CITY/RVPUB/19991313785 FORM "P' Page 2 of 14 EVALUATION OF ENVIK NMENTAL AAPACTS: I ) A brief explanation is required for all answers except "No Impact" answers that are information sources a lead agency cites in the parentheses followin each A No Imp ��� by the adequately supported if the micrenced information sources show that the VaCt s p No Impact answer is like the are involved (e g. the project falls outside a fault �°� � does not apply b projects explaincd where it is based on project -specific � ). st "No hnpad answer should be Prof spedfie factors as well as general standards (erg the Project cull not expose sensitive ruxeptars to pollutants, based on a pmjed-specific screening analysis). 2) All answers must take account of the whole action mvolved, including off -site as well as on- ve as te, cumulati well as projuxt-leer 1 indirect as well a9 direst, and construction as well as operational ' tctt 3) Once the lead agency indicate whether the ' has determined that a particular physical impact may occur, then the checklist answers must "Potentially Significant thtc � isPotmpally significant, less d m significant with mitigation, or less than significant Lnpact• is appropriate if there is substantial evidence that an effect is V significant there are one or more 'Potentially Significant Impact"cad. entries when the determination is made, an EIR is required 4) "Negative Declaration: Less Than Significant With Mitig rtien LtwrPorated• applies where the incorporation corporation of w1fiImpact. The lead measureshas reduced an circa from "Potmtialiy Significant Impact" to a Meas than Sigrtifxant to a less than significant agency must describe the mitigation mcgunUM and briefly explain how they reduce the effect gmbx ant level (mwganon measures from Section X1% "Earlier Analyser,• �Y be erass- rCeereneed). 5) Earlier analyses may be used where, Pursuant to the tiering, Program Eflt, or other CE A been adequately analyzed m an earlier EIR or Q proceaa, an effect has discussion should identify the following: negative declaration, Section 13063(e)(3xD). In this case, a brief a) Earlier Analyses Used. Identify and state when they are available for review. b) ImpactsAdequately Addressed adequatt Identify which effeera fmm the above chaddist were within the scope of and ely analyzed in an earlierdocument pursuant to applicable legal standards, and state w effects were addressed by mitigation measure based on the earlier analhether such ysis. c) Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures Incorporated to which the mitigation measurer which were ireorporated or refined fry the earlier document and the extent to which they address site conditions for the project 6) Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (erg. general places, zoning ordinances). Reference to a previously prepared or outside document should where appropriate, include a reference to the Page or pages where the statement is substantiated 7) Supporting Information Sources. A source list should be attached, and other sources used or individuals contacted should be cited in the discussion 8) This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions form this checklist that are relevant to a project's Owev r, al agents s whatever format is selectedin CITY/R VPUH/1999/313785 FORM'7 Page 3 of 14 9) The explanation of each issue should identify: a) the significance criteria or threshold, if any, used to evaluate each question; and b) the mitigation measure identified, if any, to reduce the impact to less than significance. SAMPLE QUESTION L. Thin Issues: sib POWANDY With L< Th ,, swatie�� hwepwadw Ped swurm t No] L AESTHETICS. Would the project a) Have a substantial adverse effect an a some vista? ❑ ❑ ❑ b) Substantially damage am= resource, mcludmg, but no ❑ ❑ ❑ limited to, trwa, rock otrtczoppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality ❑ of the site and its surramdings? ❑ ❑ d) Create a new saurm of substantial tight or glare which ❑ ❑ ❑ would adversely affect day or nighttime views in the are? H. AGRICULTURE RESOURCES. In determining whether impacts to agricultural resources are significant environmental etfects, lead agencies may refer to the California Agnculturel Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impaW on agriculture and farmland. Would the project a) Convert Prime Farmland, Unique Farmland, or Farmland of ❑ ❑ Statewide Importance (Farmland), as shown on the maps ❑ Q Pfepared Pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non- agricultural use? b) Conflict with existing inning for agricultural use, or a ❑ ❑ ❑ Williamson Act contract? CITY/R VPUB/1999/313785 FORM "T' Page 4 of 14 Issues: thant.eo sigwfic- polowah conk ton 3>v. SgPtx, m Moptiea Siaaifi'm No Impact c) Involve other changes in the existing environment which ❑ due to their location or nature, could result in conversion of ❑ ❑ Famdand, to non-agricrdta" use? Ill. AIR QUALITY. Where availably the sigolficaoce criteria established by the applicable air quality management or air Pollution control district may be relied upon to make the following determinations. Would the project a) Conflict with or obstruct implementation of the applicable ❑ ❑ air quality plan? ❑ E b) Violate any atr quality standard or contribute substantially to an existing or projected air quality violation? ❑ ❑ ❑ 6 c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is ❑ ❑ ❑ nonattaimnan under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone preeursors)? d) Expose sensitive receptors to substantial pollutant ❑ concentrations? ❑ ❑ g e) Create objectionable odors affecting a substantial number of People? ❑ ❑ ❑ IV. BIOLOGICAL RESOURCES. Would the project a) Have a substantial adverse effect, either directly or through habitat tacdifications,on ❑ ❑ ❑ any spcoies identified as a candidate, senaitive, or special status species in local or regional plats, policies, or regulations, or by the California Deparmnent of Fish and Game or U.S. Fish and Wildlife Service? CITYiRVPUB/I999/313785 =F Page 5 of 14 FORM " r, Issues: b) Have a substantial adverse effect on any riparian habitat or other sensitive natural t 0111ma mity identified in local or regional Plate Policies, m9ulatiow a by the California Department of Fish and Game or U.S. Fish and Wildlife Service? t�,e. sipifcna pe.anaay with tan tbft sgnifica siWd No IMpa w wpmttw �P� O ❑ ❑ i c) Have a substantial adverse effect an federally protected p wetlands as defined by Section 404 of the Clean Wafer Act (including, but not limited to, marsh, vernal pool, on"taL etc.) through direct removal, filling, hydrological interruption, or other means? d) huerfere substantially, with the movement of any active p p resident or migratory Sub or wddlife specia a with ❑ established native resident Or mi or impede the use of native wa lif� wildlife corridors, sites? e) Conflict with any local policies crordinances protecting ❑ biological resources, such as a tree press vatmn policy, or O ❑ ordinance? f) Confl= with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? V. CULTURAL RESOURCES. Would the project a) Cause a substantial adverse change is the significance of a p historical resource as defined in § 15064.5? ❑ ❑ b) Cause a substantial adverse change in the significance of an ❑ archaeological resource pursuant to § 15064.5? ❑ ❑ bi c) Directly or indirectly destroy a unique paleontological resource ar site or unique geologic feature? ❑ ❑ ❑ d) Disturb any human remains, including those intend outside ❑ of formal cemeteries? ❑ ❑ `� CITY/RVPUB/ 1999/317785 FORM "I" Page 6 of 14 Issues: l m.3u. Poftdwuy unu Lima T>r. s;aadc"Wtisatiam Impacts� No. iVl. GEOLOGY AND SOBS — Would the prgcce ') � i � struatao to s, injury r death � ❑ ❑ ❑ E B loss, tpJtaY Q death I i) Rupture of a knows earthq„akmfault, s delineated an the ❑ ❑moate- AlPriE Fault Zoning M issued by the State Geologist for the area or based an other ' substantial evidence of a (mown fault? Refer to Division of Mina and Geology Special Publication 42. 6) Strang seismic ground shaking? ❑ ❑ 1 ui smsmiFrelated ground failure, including liquefaction? ❑ ❑ ❑ iv Landslide? b) Result in substantial soil erosion arthe loss of topsoil? ❑ ❑ 13 c) Be located on a geologic unit or soil that is uuntable, or the ❑ would became Projt� and unstable as a result of the ❑ ❑ potentially result in no- or off --site landslide, lateral sPnmbm& subsidence. liquefaction or collapse? d) Be located an expensive soil, as defined in Table 18-1-B of ❑ ❑ due Uniform Building Code (1994), creating substantial ❑ risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste waterosidsystems ❑ ❑ ❑ where sewers are not available for the d disposal of waste water? V11. HAZARDS AND HAZARDOUS MATERIALS. Would the project: a) Create a significant hazard to the public or the environment ❑ through the routine transport, use. or disposal of hazardous ❑ ❑ materials? CITY/RVPURn 999/313785 FORM 'IT,Page 7 of 14 Issue: Ise Tho sly PabBdy - with lets rt 1 SWact Impscr S19�faa S Nol � b) Create a sigei5at t hazard to the public or the eovilo� through Mosonably faresaable uPser and accident ❑ ❑ ❑ condit"m involving the release of hazardous materials into the environment? Ie) E IL hazardous emnwm or handle hazardous or acutely hazardous materials, substances. or waste within one. ❑ ❑ quarter mile of an eristiag or Proposed school? d) Be located on a site which is included on a list of hazardous rmterials sites compiled pursuant to Government Code ❑ ❑ ❑ section 65962.5 and, a a result, would it create a significant hazard to the public or the environment? ' e) Far a Project loafed within an aurpore Land use plan or. whsuch a plan has not bear adopted, ed, within two miles of ❑ ❑ ❑ a public airport or public use airport, would the project dhealin safety hazard for people residing car m Project areal working 1° t) For a project within the vicinity of a private airship would the project rmuh in a safety hazard for ❑ ❑ ❑ working in the Project area? PonPIc residing or 1 9) Impair implementation of or Physically interfere with an adopted emergency response plan or emergency evacuation ❑ ❑ ❑ plan? i h) Ex1>ow People or smicteras to a significant risk of loss, ❑ injury of death involving wildland fires, including where ❑❑ wildlands are adjacent to urbanized area or where residences are intermixed with wildlands? VIII. HYDROLOGY AND WATER QUALITY Would the project: era) Violate any water quality standards or waste discharge requirements? ❑ ❑ ❑ CI7Y/RVPIIB/ 1999/313785 FORM " r Page 8 of 14 Issues: tans Thu si®ai&aaa Pbt=dasy With t.aa nun swxfiraat Nfitamtp armed SwAcant Nu � b) Substantially deplete gmuodwata supplies or iutefese substantially with groundwater recharge such that that ❑ ❑ would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g; the Production rate of We adsting neeby wells would drop to a level which would not support =sMg laud uses or planned uses for which permits haw been granted)? c) Substantially alter the existing drainage pattern of the site or ❑ ❑ t area, induding thsough the alteration of the course of a ❑ stream or river. in a manner which would result in substantial erosion or siltation am- or off -site? d) Substantially alter the existing drainage patea of the site or arek including ❑ ❑ thmagb the alteration of the cou ae of a ❑ sgemn or river, or substantially i e== the ram or amount of surface runoff in a manner which would result in flooding on- or off -site? e) Create or contribute nutiffwater which would exceed the Capacity ❑ ❑ ❑ of existing or planned storm water drainage systems or Provide substantial additional somas of polluted runoff? t) Otherwise substantially degrade water quality? ❑ ❑ ❑ g) Place housing within a 100-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map err other flood hazard ❑ ❑ ❑ Q delineation map? I h) Plan within a I00-year flood hazard arcs structures which would impede or redirect flood flows? ❑ 1 ❑ ❑ L.{ i) Expose people or strictures to a significant risk of loss, injury or death involving flooding, including flooding as a ❑ ❑ ❑ result of the failure of a levee or dam? 1 D Inundation by sciche, tsunami, or muMow? } CITTY/R VPUB/1999/313785 FORM If, Page 9 of 14 K Issues: DC LAND USE AND PLANNING. Would the project; a) Physically divide an established community ? b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (iecludin& but not limited to tha geonal plan, specific plan. local coastal Plana, or zoning ordinance) adopted for the Propose of avoiding or mitigating as eovirom ental effect? c) Conflict with any applicable habitat conservation plan or natural guy conservation plan? X MINERAL RESOURCES. Would the project a) Result in the loss of availability of a (mown mineral resource that would be of value to the region and the residents of the state? b) Result in the loss of availability of a locally-, mineral resource recovery site delineated on a local general Plan, specific plan or other land use plan? M. NOISE. Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive 8romdbome vibration or groundbome noise levels? c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? Lon Thn Poom early Woo Sigo&M widplim 1=4" Iac� Lon Thou sirificwd No tmprr ❑ ❑ ❑ 1 ❑ ❑ ❑ I ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ X ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ C ITY/RVPUBl1999/313 785 FORM "T' Page 10 of 14 Issues: finnan s;allificald poftudy Wall t.�n,aa 5� titatifi1111"d Na wind e) For a project ]=led within an airport land use plan or, ❑ ❑ where such a plan has not bem adopted, within two mica of ❑ a public airport or pnblie use airport, would the project espote people residing or working in the project area to excessive noise levels? I) For a project within the vicinity of a private airstrip, would ❑ ❑ ❑ the Project expose People siding or working in the project area to escesuve noise levels? ' XEL POPULATION AND HOUSING. Would the project a) Induce substantral pWdaum growth in an area, either directly ❑ ❑ ❑ S ex (far ample, by Propo�g hew homes and busmoses) or mdimetly (far arsmpk, through adeusion of road or other infiavtruMtne)? b) Displace substantial numbers of existing housing, ❑ ❑ , nxessitatina the cautruction of replacement housing ❑ 6 elsewhere? c) Displace substantial numbers of people; necessitating the construction of replacement Musing ❑ ❑ ❑ C elsewhere? XIII. PUBLIC SERVICES. Would the project; a) Result in substantial adverse physical impacts associated with the Provisiou of new or physically altered governmental facilities, need for new err physically altered governmental facilities, the construction of which could cause significant envuonmemal impacts, in order to maintain acceptable service ratios, response times or other Performance objectives for any of the public services: Fire protection? ❑ ❑ ❑ Police protection? ❑ ❑ Schools? ❑ ❑ ❑ ,Q CITYIR VPII&1999/313795 FORM' f ' Page 1 I of 14 Parks? Other public facilities? M. RECREATION. Would the project a) Increase the use of existing neighborhood and regional parka or other recreational facilities surds that substantial Physical deterioration of the facility would coca or be accelerated? b) Dees the project include rweadonal fadlitie or the construction OF expeosiaa of recreational fw4liftesem which have an adverse physical elgat an the XV. TRANSPORTATION / TRAFFIC. Would the project a) Cause an increase in traffic which is substantial in relation to the existing tfatTu load and capacity of the street system 0A. result in a substantial increase in tidier the numbs of vehicle trips, the vohame to capacity ratio on roads, or congestion at intasoctions)? b) Exceed, either individually or cun"ively, a level of service standard established by the camly, congestion management agency for designated roads or highways? c) Result in a change in air traffic paste rts, including either an increase in b'd& levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g., sharp caves or dangerous intersections) of incompatible uses (e.g. farm equipment)? e) Result in inadequate emergency access? L< Thn s*Acud lbrmri.h With signficam Impact 60WPMW ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Len Thu sivat'd Ne 1raPma 13 CITYiRVPUB/1999/313785 FORM "r Page 12 of 14 Issues: L4=Th'a an.ny Wirth �UnThm awfi " hfiti ."tad S*AGCaat No t lmpid mPut n Rauh in inadequate parking capacity? ❑ ❑ ❑ 6 8) Conflict with adopted policies, plans, or program mppoe nrn a7 l �ve transportation(e &• bus aunauts, ❑ ❑ ❑bicycl\ XVI. UTILITIES AND SERVICE SYSTEMS. Would the project a) Exceed wastewater treatment tequirmrnts of the ❑ ❑ ❑ applicable Regional Water Quality Control Board? b) Regime or result in the construction of new wow or WastOwa "Aftoen facilitip orexparoion of aristiog ❑ ❑ ❑ fmht'es dw cOnstructum of which could cans significant environmental effects? c) Require or result in the camtruetion of now storm water drainage facilities or Mgmsim of existing facilities, the ❑ ❑ ❑ �} ceostructim of which could cause significant environmental effects? d) Have sufficient water supplies available to save the ❑ project from oneting antrtlemmts and resources, or are ❑ ❑ ❑ new or expanded adder tents needed? V provider which servo or may serve the projee) Result in a deminstim by the wastewater treatment ❑ ❑ c tat that it has ❑ adequate capacity to serve the projcd,s projected demand m addition to the provider's existing commitments? n Be served by a landfill with sufficient permitted capacity ❑ to accommodate the projects solid waste disposal needs? ❑ ❑ g) Comply with federal state, and local statutes and ❑ regulations related to solid waste? Cl ❑ C ITYiR VPUB/1999/3 13785 FORM'j" Page 13 of 14 a sP&MM pokoftway with s� n5b' WP&dcfaatim spaear XVIL MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the wality ❑ 01 the ❑ ❑ em icmmmt, substantially reduce the habitat or a fish or wildlife species, cause a fish or wildlife population to dmp below self-sustaining levels, thcedes to eliminate a plant or m iimal eomnnmity, reduce the number or restrict the rouge of a rare or endangered phmt er animal or eliminate important examples of the major periods of California history, or prehistory? Does the project hrm b) limited. but cmulalY co ely conativ nsasits that am individually ❑ ❑ ❑ considerable? ("Cumulatively carsidaable" meom that the incremental effects of a Prgat am cmvderabb when viewed in connection with the effects of past projects, the effects of otber current Meet, and the effects of probable flume projects.) c) Does the project have environmental effects which win ❑ cause substantial adverse effects at humor beings, either ❑ ❑ directly or indirectly? No 2 CITY/R VPUB/I 999/313785 Page 14 of 14 FORM -r VII. Hydrology and Water Quality a. The proposed project would have the generalized potential to impact the quality and quantity of nutoff to the proximate receiving waters; however, complying with the existing water quality standards and storm water discharge requirements should minimize the impacts to a less than significant level. The construction -related impacts would be mitigated by complying with the Construction General Permit (State Water Resources Control Board Order No. 2009-0009-DWQ) tinder the National Pollution Discharge Elimination System (NPDES). Permit coverage and regulations apply to construction activities disturbing one acre or greater. The required good housekeeping, temporary erosion control and pollution prevention measures will prevent construction - related impacts to water quality generally caused by soil erosion and contamination. Adhering to the adopted dust control regulations will also support the impact minimization. To address post -construction runoff impacts, on -site design is regulated under the Municipal Separate Storm Sewer System (MS4) within the Whitewater River Watershed (Order No. R7-2008-0001 and NPDES No. CAS617002). The source control, site design and treatment control Best Management Practices (BMPs) included within the approved Water Quality Management Plan ensures that the proximate receiving waters (Whitewater River and Coachella Valley Stormwater Channel), are not adversely impacted by project pollutants. The proposed project will not violate existing regulations related to water quality and waste discharge. Less than significant impacts are anticipated. C. The site has been mass graded. It does not contain any streams, rivers or other substantial drainage features. Therefore, project implementation, would not result in the alteration of any existing stream course in a manner which would cause a substantial increase in erosion or siltation. Onsite flows are currently directed toward existing retention areas or infiltrated onsite. The project will continue to direct flows to existing and proposed retention areas prior to any discharge. BMP's contained within the required SWPPP and WQMP will ensure that no substantial erosion or siltation on -site or off will occur. Less than significant impacts are anticipated. XV. Transportation/Traffic a. The proposed unit count does not exceed the unit count in the previously approved project and site plan. Traffic associated with the proposed project is not expected to result in impacts to traffic load or street capacity beyond that of the previously approved development. Additionally, the proposed project is an active - adult condominium project with an HOA. The previous project was a single family residential development project. The 8th edition of the Trip Generation Manual from the Institute of Transportation Engineers (ITE) indicates that Trip Generation Rate (peak hours) for Single Family Detached Housing is 1.10 trips/dwelling unit/hour. The ITE rate for Senior Adult Housing Attached is 0.16 trips/dwelling unit/hour. The project should therefore reduce traffic impacts calculated for the previous project. Less than significant impacts are expected. XVI. Utilities and Service Systems a) The proposed project will submit onsite improvement plans for approval and wilt connect to the existing public sewer system. The unit count will not exceed that of the previously approved project; which was analyzed daring previous entitlements. Therefore no additional wastewater treatment requirements will be required. Less than significant impacts are anticipated. E CASA BLANCA OWNERS ASSOCIATION P.O. Box 799 Rancho Mirage, California 92270 August 29, 2012 Kevin Swartz Assistant Planner City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino Development Project Dear Mr. Swartz: I am the President of the Casa Blanca Owner's Association ("Association"), and I am sending you this letter on behalf of the Association, which represents the homeowners within the Casa Blanca development, to express our strong support for the continued development and build out of the Villa Portofino project (the "Project"), including, without limitation, the approval by the Planning Commission and the City Council for the City of Palm Desert of Tentative Tract Map 36404, including the applicable pad heights and ground elevations for the residential units contemplated therein, and the Conditional Certificate of Compliance associated therewith (collectively, the "Project Map"). Our support for the Project and the Project Map is based upon a separate agreement reached between the Association and the principal developer of the residential component of the Project adjacent to Casa Blanca ("Lot 2/Module 4"), which agreement addresses with respect to the Lot 2/Module 4, among other things, blow sand and dust control, fencing and security considerations, unit heights, pad heights and ground elevations and a building setback. We acknowledge that certain condominium units within a portion of Lot 2/Module 4 are owned by a third party and that all or portions of Lot 2/Module 4 may not be graded, and the balance of the Project may not be constructed, for several years. We also acknowledge that construction of certain portion�of the Project may commence in the near term. Gail cc: Daniel Olivier, Esq. Robert Hargreaves, Esq. Rudy C. Herrera Sep 18 12 05:38p Thomas Tokheim ) 7r'l74-4948 p 1 September 18, 2012 To: City of Palm Desert Planning Commission Re: Case No: DA 11-516, PP 98-21 Amendment No. 2, and TTM 36404 I am writing to object to the approval of the Tentative Tract Map application that affects the 11.48 acre parcel APN # 622-020-093-2 which is formerly known as Phase 2 of the original owner/developer. My reasons for objection are as follows: 1. 1 did not receive any notification of this Planning Commission meeting tonight This afternoon I called Kevin Swartz to set up a meeting to discuss our progress on the ownership question of the above mentioned parcel. Kevin asked me If I was attending the meeting tonight as the Tentative Tract Map was being presented for approval. 1 said I was unaware of that and Bald 1 did not receive notice. As a result, I immediately set up a meeting with Kevin at 2:15 PM today to give him my update and also to pick up the notice and the Planning Commission Staff Report which I and my legal representatives and other advisors have not been able to review In detail. 2. There Is a difference of opinion on the ownership of the 1L48 acres, APN #622-020-093-2 of which I claim ownership as a Managing Member of JJL Property Investments, LLC. 1 received correspondence yesterday on September 17, 2012 from a Fidelity National Title official that "JJ L Property Investments has fee title to the 11.48 acres (AP #622-020-093-2)." Previously I had confirmed with a local Riverside County staff assessor over the telephone that this parcel was set up In March 2006 and then conveyed to Temecula Valley Bank in January 2009 as a result of a Trustee Sale. On July 20, 2009 a Corporate Change of Control was filed for this parcel from Temecula Valley Bank to First Citizens Bank per the FDIC Failed Bank List. This local county assessor then confirmed that the 11.48 acre parcel was conveyed to JJL Property Investments, LLC at close of escrow In February 2010. All correspondence, notices and tax bills for this 11.48 acre parcel have been and are sent tome at my personal residence. 3. Aside from the ownership Issue, no information has been shared with me or my partner regarding the proposed separation of the retention basin or other part of this 11.48 acre parcel APN # 622-020-093-2 for the purpose of examining the effects, positive or negative, on the eventual development of the JJL Property Investments real property. 4. No other information on the proposed Tentative Tract Map application have been shared with me or my partner regarding any agreements with the City of Palm Desert, HOA's, other organizations or other individuals regarding part or all of this 13 48 acre parcel APN #622-020- 093-2. I respectfully request that this Tentative Tract Map review be tabled until: • The ownership of the 11.48 acre parcel APN #622-020-093 is resolved between the two title companies and any other necessary bodies. • JJL Property Investments, LLC Is able to review the Planning Commission Staff Report and other pertinent documents with its attorneys and consultants. • 11L Property Investments, LLC representatives are able to meet with City staff to determine how the proposed Tentative Tract Map affects JJL Property Investments, LLCs ability to develop its real property. • I reserve the right to raise other objections upon full review of all pertinent documents that could have been reviewed in the normal course of business. Sep 18 12 05:38p Thomas Tokheim, 700"f74-4943 p.2 I do apologize for the lateness of this objection and recommendation but once again, it is because of receiving no notice. I will be at the Planning Commission meeting in person but will not be able to have my legal or other advisors accompany me because of my short notice to them. Respe, TT� ullly submitted, LI� Managing Member . JJL Property Investments, LLC r u V Q, C'Ry of Palm Uw CommueRy00,41 '"t SEP 18 2012 c What I am saying, is this is a company who does not feel that they have to play by the same rules that the rest of us do. They don't have to build things like everyone else. I suppose they are special in some way, but personally, I don't see it. How can it be that a 55 and over community, with an assisted -living and skilled -nursing facility, is in such dire need of roof decks? One would thinkghat in the event of an emergency, this might even create a health and safety issue for those residents who might be compromised in their ability to get down from those decks. With the rest of Palm Desert residents having to go by the rules and historically having their roof decks declined, please do not make an exception for Family Development so that they can use it as a selling point and personally benefit from it without concern for the community at large, the health and safety of the residents ,the privacy of the neighbors, or with any concern over presidence that it sets for the rest of Palm Desert. It is not right that there are different rules for different people. There is no reason to think that Family Development will even finish the project when clearly, as demonstrated across the street at Brava, if Family Development does not feel that their profit margin is worth -while, there could be a chain -link fence and green mesh at Villa Portofino as well as Brava. That would certainly be an eye -sore on Country Club Drive. Family Development attained Villa Portofino at a huge discount, knowing what it was, without roof decks, so they are aware of what they got. People, taxpayers and voters, who have lived in Palm Desert Greens, way before Family Development even started Brava, deserve the right to maintain what privacy they have left. They have obeyed the rules. Even though they may be regular people, and not some big developer, they still should be able to enjoy the peaceful enjoyment of their homes without interference or the theft of their privacy. Thank you for protecting the lifestyle of Palm Desert's residents. Please be mindful of the meter situation at Villa Portofino as well. California code does not allow one unit to have jurisdiction of the power at another unit. For me, this was extremely costly. During the years I fought Family Development, my mother got cancer and died. she never moved into the condo. Respectfully, Donna Brown Donna Brown 72618 Jamie Way Rancho Mirage, CA 92270 (760)568-9426 9/18/12 Kevin Schwartz- Palm Desert Planning Dept. Re: Villa Portofino Roof Decks 73510 Fred Waring Dr. Palm Desert, CA.92260 Dear Kevin: Thank you for speaking with me this morning regarding the request from Family Development for roof decks at Villa Portofino. This was brought to my attention through the article in this morning's Desert Sun newspaper. Although my primary residence is in Rancho Mirage, I own two properties in Palm Desert. I have had person experiences with Family Development through my purchase of a condo in Brava, located across the street and slightly west of Villa Portofino. I bought that unit for my mother. After painting and fixing the place all up, I brought my mother to it to surprise her. As night fell, the exterior of the building got darker and darker, despite the many lights on the building exterior. It turned out that Family Development decided to put in three power meters to accommodate each of the three units in each group of condos. What they neglected to do was to designate a fourth meter for the exterior light (even though there was an empty spot for this,) opting instead to split up the exterior lighting between the three units. In my case, that made the power for the exterior lights for my back patio and front door at the mercy of the condo upstairs, which had been foreclosed on. My mother was afraid to live there under those circumstances for fear of falling or theft. At that point, I went to the City. The plan for the community had been sent out, signed and approved. I met with the building inspector several times and at one meeting, I watched Rudy Herrera dress -down the inspector, who had been a Marine serving our country, telling him that he no longer wanted to hear from the inspector himself, only from his boss. At that same meeting, he told me that if I wanted darkness, he'd show me "permanent darkness." Two years went by as I pursued lighting through the City, the Fire Dept., and then the Dept. of Real Estate. By then, Family Development was preparing to auction off the rest of their unsold properties at about half of what everyone else paid there. I received a call from the Real Estate Commissioner just prior to the auction. He looked into the matter. Not long after that, miraculously, the fourth meter was reluctantly installed, but only after all this, thus insuring the health and safety of the residents there. People that bought at the auction found themselves dealing with bills for back taxes that Family Development had not paid on their unsold parcels. To this day, there is a chain -link fence around Brava with green mesh (which has been there for years) which unattractively covers the front undeveloped lots that Family Development left to pursue their projects elsewhere. City of Palm Desert Community Developmem SEP 18 2012 THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commissionand City of Palm Desert. 0 � Sincerely, / E 11 THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Wham It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, .,2G5 Cj, )C,,al C4--, %��� E z THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. i z✓_ \ �Gr2/8eed�' 9y W ) THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, il) K THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, K THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, n %zz ( D K THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, 10 E THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, � � to t I i cl SCI� `11L1v"� lug C� N THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, // �� K K THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, ��� 1�; �Z6666662� i) W1 THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, � C� E THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, A" 01 t i a 22-0,, � •c iv �^ K K THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, Nam_ K K THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely,j.(�'1�-mot. K 0 THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, E THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sinc1erel , �/� s, M� E 10 THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, H U 3 `P aCm 1�� , 6 12) R 2 2 Ga O I THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, E THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, y c�� THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, C,� I Cd E t' THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely,, ':mw V /A � K THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, C�r�I NA L A- W THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that 1 have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, �� THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, ,_.�_ /^ a �r J E E THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, K i� THE CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 RE: Villa Portofino To Whom It May Concern: The purpose of this letter is to let you know that I have reviewed the plans that Family Development is submitting on September 18, 2012. 1 believe that the proposed Villas with rooftop decks, as well as the tract map will be of great benefit to Villa Portofino and the city, and I am in complete support of approval both by the Planning Commission and City Council of Palm Desert. Sincerely, � \%��p , fl�A JA�o �Ij o- I � 1 VL 7 aZ a ccda-VAlI, CiiY 01 ��1 i dfSIfZ'i 73—Slo FRED WANING DRIVE PALml DESEM, CALIFORNIA 9z26o—,578 rEL:76o 346—o6u FAX:76o 341-7098 i n(uC palm-desert.org CITY OF PALM DESERT LEGAL NOTICE CASE NOS. DA 11-516, PP/CUP 98-21 Amendment No. 2 & TTM No. 36404 NOTICE IS HEREBY GIVEN: That a public hearing will be held before the Palm Desert City Council on October 11, 2012, for consideration of modifications to the prior approvals for Villa Portofino (Southwest corner of Portola Avenue and Country Club Drive) including: a Conditional Certificate of Compliance to confirm the prior subdivision of a portion of the property; a Tentative Tract Map; a modified Precise Plan; an amended and restated Development Agreement; and architectural elevations for 72 new condominium/villa units on lot No. 5 of the proposed map. 5 �� � I'll a �� � •' `� :. � ' � G� � 7Ar.' a� a ti a a D 1 er - 4 us PUBLIC HEARING: Said public hearing will be held before the City of Palm Desert City Council on Thursday October 11, 2012, 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 is available for review in the Department of Community Development at the above address betwegn 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 September 28, 2012 Palm Desert City Council City of Palm Deeen Dommun ty DevelcPmeat DIANA PLOTKIN OCT 0 9 2012 73730 CALLE BISQUE PALM DESERT, CA. 92260 760/346-6962 October 8, 2012 0 _0 v o' C'f D~ K Members of the City Council so 'mmm 73-510 Fred Waring Drive Palm Desert, Ca. 92260 Gentlemen: o o+ nZ' ,,,® RE: APPROVALS FOR VILLA PORTOFINO(SOUTHWEST CORNER OF PORTOLA AVE. & COUNTRY CLUB DRIVE My name is Diana Plotkin and I am a resident at 73730 Calle Bisque, Palm Desert, Ca. 92260, in the Casa Blanca Community. I have lived there for over 12 years. Several of my neighbors and I are opposed to the issuance of permits to a portion of the Portofino Project. Since the support for this project by our Board of Directors was never voted on by the 134 units in the complex, nor did most of us know about the negotiations, our concerns were never taken into consideration when support was issued. We are very concerned about the burm that is illegal and is 7 to 8 feet higher then what City Code allows. This burm has existed for a number of years and has put all of us living closest to Monterey in jeopardy. The burm is higher then the wall that separates the two properties. I have personally yelled at several young men trying to climb into our community and chased them away. We have had a number of break ins over the years which while cannot be attributed to the burm (because no one saw them come over the burm), it does give anyone who is up to no good, the opportunity to get into Casa Blanca and could have been caused by this access. We are asking that before any permits are issued for the Portofino Project that they are forced to remove this dangerous burro and reduce it to what Palm Desert Code requires and not one inch higher. This burm is illegal and your Department of Building & Safety should have issued orders to remove it years ago. I can assure you if 1, as an individual property owner, had built something illegal like this I would have been cited and forced to remove it immediately. As the permits are written now this burm can stand until Portofino decides to build on this side of the property. That could be 10 years from now or indefinitely without anything being done. No one knows when they intend to build on this part of the property and in the meantime we are all saddled not only with the illegality of this but also the visual blight, and DIANA PLOTKIN 73730 CALLE BISQUE PALM DESERT, CA. 92260 760/346-6962 Page 2 October 8, 2012 Portofino Case the danger of someone getting into our complex from the Portofino side. While we are not opposed to Portofino's project but we are asking the City of Palm Desert to do its job and see to it that before any permit is given to them that they are made to reduce the burn to the height that City Code requires. A simple legal request. Thank you very much. Since�ely D' us Plotkin cc: The Desert Sun EXHIBIT A WHEN RECORDED RETURN TO: The City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: City Manager Fee Exempt - Govt. Code 27383 (Space above for Recorder's Use) VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR A PORTION OF THE PROJECT between THE CITY OF PALM DESERT a California charter city and VP LAND, LLC; VP BUILDERS, LLC; and COUNTRY CLUB DRIVE INVESTORS, LLC Dated as of , 2012 72500.00791 \7577720.1 VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR A PORTION OF THE PROJECT This Villa Portofino Amended and Restated Development Agreement for a Portion of the Project ("Agreement') is entered into and effective on the date it is recorded with the Riverside County Recorder ("Effective Date") by and between (i) the CITY OF PALM DESERT, a California charter city ("City'), (ii) VP Land, LLC, a Colorado limited liability company ("VP Land"), (iii) VP Builders, LLC, a Colorado limited liability company ("VP Builders") and Country Club Drive Investors, LLC, a Delaware limited liability company ("County Club Drive Investors"). VP Land, VP Builders, and Country Club Drive Investors are sometimes individually referred to as "Owner' and collectively referred to as "Owners" herein. VP Land, LLC is also referred to as "Designated Owner' hereunder. RECITALS WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Section 65864 et seq. of the Government Code authorizing any city, county or city and county to enter into a development agreement with an applicant for a development project, establishing certain development rights in the property which is the subject of the development project application ("Development Agreement Law"); and WHEREAS, City has adopted an ordinance and regulations establishing procedures and requirements for the approval of development agreements, pursuant to California Government Code Section 65865 ("Development Agreement Procedures"); and WHEREAS, VP Land owns certain real property legally described in the attached Exhibit "A1" (the "VP land Parcel"), VP Builders owns certain real property legally described in the attached Exhibit "A-2" (the "VP Builders Parcel"), and Country Club Drive Investors owns certain real property legally described in the attached Exhibit "A-3" (the "Portola Parcel") (the VP Land Parcel, the VP Builders Parcel and the Portola Parcel are collectively referred to herein as the "Property') (for the avoidance of doubt, the existing 72 Villa units identified as Units 1-72 of the Phase 1 condominium plan (described below), and any associated real property rights and interests, the proposed 40 condominium units identified as Units 73-112 of the Phase 2 condominium plan (described below), and any associated real property rights and interests (collectively, the "Excluded Units"), and the land underlying the Clubhouse (as hereafter defined and as set forth in the condominium plans recorded against a portion of the Property) are not intended to be a part of the Property, nor subject to this Agreement); and WHEREAS, In 1998 and 1999, Owners' predecessors in interest, Royce International Investment Co. ("Royce"), was granted approval of General Plan Amendment 98-6, Change of Zone 98-7, Precise Plan/Conditional Use Permit 98-21 , and a Development Agreement entitled "Senior Housing Development Agreement Royce International", dated February 25, 1999 and approved by the City Council for the City of Palm Desert pursuant to City Ordinance No. 907 on February 25, 1999, as amended by City Ordinance No. 1075 adopted September 23, 2004 to reduce the minimum age limit set forth in said Senior Housing Development Agreement Royce International from 62 years of age to 55 years of age (collectively "Initial Development Agreement")(collectively "Prior Approvals"), which Prior Approvals provided for the development 72500.00791\7577720.1 on the Property of a health club and wellness resort for seniors, 288 apartments, 182 casita units, 161 bed skilled nursing facility, 150 bed assisted living facility and zone change to senior overlay (the "Initial Project'); and WHEREAS, pursuant to the Prior Approvals, in the intervening years 72 villa units and a clubhouse and related improvements (the "Clubhouse") were completed and construction of an additional 48 villa units was commenced; and WHEREAS, condominium plans were recorded against portions of the Property resulting in unapproved parcels and individual condominium units that were sold to the general public, and the terms of the Initial Development Agreement were not complied with by Royce; and WHEREAS, Owners have requested City to approve modifications to the Prior Approvals and related considerations, including a Conditional Certificate of Compliance to, among other things, confirm the prior subdivision of a portion of the Property ("COC"), a Tentative Tract Map, a modified Precise Plan, and this Amended and Restated Development Agreement, which shall collectively provide for the development of 311 units of independent living, assisted living, and/or skilled nursing on the Portola Parcel and up to 358 condominium units collectively on the VP Land Parcel and the VP Builders Parcel, without taking into account the 112 Excluded Units, all subject to a household age restriction of 55 years old (collectively the "Project') and WHEREAS, by electing to enter into this Agreement, City shall bind future City Councils of City by the obligations specified herein, and limit the future exercise of certain governmental and proprietary powers of City; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, City has found that the provisions of this Agreement and its purposes are consistent with the objectives, policies, and general land uses and programs specified in City's General Plan; and WHEREAS, all actions taken and approvals given by City have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes and other procedural matters in accordance with the Development Agreement Law and Development Agreement Procedures; and WHEREAS, all actions taken by the City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (Public Resources Code Section 21000, at sec.); and NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Owners (each herein sometimes called a "Party' and jointly the "Parties") do hereby agree as follows: 72500.00791\7577720.1 ARTICLE 1 GENERAL PROVISIONS 1.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement, which, with respect to the Property and only the Property, is intended to amend and restate the Initial Development Agreement. In the event of any conflict between the terms of this Agreement and the terms of the Initial Development Agreement, the terms of this Agreement shall control. Furthermore, and with respect to the Property only, the rights, interests, obligations and responsibilities of the Owners and the City, and any covenants, conditions or restrictions applicable to the Property, arising from or under the Initial Development Agreement, are replaced in their entirety by the rights, interests, obligations and responsibilities of the Owners and the City, and any covenants, conditions or restrictions applicable to the Property, as set forth herein. 1.2 Ownership of Property. Owners represent, covenant and warrant that they are the owners of fee simple title to their respective parcels comprising the Property as described in the above Recitals and as set forth on Exhibit "A-1" through Exhibit "A-3". 1.3 Term. The term ('Term") of this Agreement shall commence on the Effective Date and shall continue for a period of ten (10) years thereafter unless this Term is modified or extended pursuant to the terms of this Agreement. So long as an Owner is not then in default of its obligations hereunder or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals (as hereafter defined), and provided the Development Commitments (as hereafter defined) have been and, if applicable, continue to be satisfied and complied with, City agrees to reasonably consider an extension of the Term of this Agreement with respect to and upon the written request of such Owner for an additional five (5) year increment. Any such consideration by the City of an extension of the Term will require a determination by the City, in its sole discretion, that there has been no material change in the attendant facts and circumstances relating to the Project that would make or warrant a material change to the Project as currently contemplated advisable from the City's perspective. 1.4 Assignment, Sale and Transfer of Interest in parcels of the Property and this Agreement. Owners shall have the right to assign, sell or transfer their portion of the Property in whole or in part at any time during the term of this Agreement; provided, however, that any such assignment, sale or transfer to any party that is not (a) a member of the homebuying public, (b) Palm Desert Villa Portofino Homeowners' Association, a California non- profit mutual benefit corporation, being the homeowners' association previously established for the Project other than the Portola Parcel ("HOA"), with respect to easements and common areas, or (c) a lender who will obtain a security interest in all or any portion of the Property (collectively and as so qualified, "Exempt Parties") shall include the assignment and assumption of the respective rights, duties and obligations of the assigning, selling or transferring Owner arising under or from this Agreement. Except as otherwise expressly contemplated hereunder, no sale, transfer or assignment of any right or interest under this Agreement to any party that is not one of the Exempt Parties shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. Each Owner shall notify the City in the event of such Owner's sale or transfer of any portion of the Property to any party that is not one of the Exempt Parties. Failure to provide notice of sale or transfer when required hereunder shall be grounds for termination of this Agreement as it relates to the Owner in violation hereof, at absolute discretion of City. 72500.00791\7577720.1 1.5 Amendment or Cancellation of Agreement. Except as otherwise provided herein, this Agreement may be amended or canceled in whole or in part only by written consent of all Parties in the manner provided for in California Government Code Section 65868; provided, however, City's Director of Community Development may, in his/her sole discretion, make and approve minor technical, non -substantive modifications to this Agreement as requested by an Owner so long as the other Owners and their portion of the Property will not be materially and adversely affected by such modification (the "Minor Modification Qualification"). 1.6 Termination. This Agreement shall be deemed automatically terminated and of no further effect upon the occurrence of any of the following events: 1.6.1 Expiration of the Term of this Agreement as set forth in Section 1.3. 1.6.2 Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance adopting this Agreement. 1.6.3 The adoption of a referendum measure pursuant to California Government Code Section 65867.5, overriding or repealing the ordinance adopting this Agreement. Except as provided under section 2.3.3, termination of this Agreement shall not constitute termination of any Development Approvals (hereinafter defined) granted for or applicable to the Project prior to such termination. Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder, except with respect to: (i) any obligation to have been performed by such Party prior to such termination, (it) any default in the performance of the provisions of this Agreement by such Party which occurred prior to such termination, or (iii) any obligations of such Party which are specifically set forth herein as surviving the termination of this Agreement. 1.7 Notices. (a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below; or (iv) on the date of delivery by facsimile transmission to the recipient named below. All notices shall be addressed as follows: If to City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: City Manager and City Attorney Telephone: (760) 346-0611 Facsimile: (760) 340-0574 72500.00791 \7577720.1 With a copy to: Best Best & Krieger LLP 74-760 Highway 111, Suite 200 Indian Wells, California 92210 Attention: City Attorney for City of Palm Desert Telephone: (760) 568-2611 Facsimile: (760) 340-6698 If to VP LandNP Builders: VP Builders, LLCNP Land, LLC c/o Family Development Group, Inc. 73081 Fred Waring Drive Palm Desert, California 92260 Attention: Rudy C. Herrera Telephone: (760) 900-8989 Facsimile: (760) 776-4422 With a copy to: VP Builders, LLCNP Land, LLC c/o Real Capital Solutions 371 Centennial Parkway, Suite 200 Louisville, CO 80027 Attention: Ryan Atkin Telephone: (303) 466-2500 Facsimile: (303) 466-4602 If to Country Club Drive Investors: Country Club Drive Investors, LLC 28071 Las Brisas Del Mar San Juan Capistrano, CA 92675 Attn: Jerry Robinson Telephone: (949) 240-7109 Facsimile: (949) 240-7109 (c) Any Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a Party or an officer or representative of a Party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. ARTICLE 2 DEVELOPMENT OF THE PROPERTY 2.1 Development Approvals. For the purpose of this Agreement, the term "Development Approvals" means the following entitlements issued or approved by City for development and/or use of the Project, as same shall be modified to provide for the Project, including the continued development, construction and sale of condominium units on the Property, and to provide for a unit age restriction of 55 years old within the Project: (a) GPA 98-6; CZ 98-7; PP/CUP 98-21; (b) The COC; 72500, 00791 \7577720.1 (c) Tentative Tract Map 36404 (the'TTM"); (d) This Amended and Restated Development Agreement; and (a) Conditions of Approval, attached hereto as Exhibit "B". 2.2 Owner Commitments: As part of the Project, and in consideration for the Development Approvals, Owners have committed to certain improvements as set forth below in this Section 2.2 in conjunction with the development and construction of the Project ("Development Commitments"). The allocation of applicable costs and responsibilities for such Development Commitments as between the Owners, as applicable, has been or will be addressed by the Owners in a separate agreement. 2.2.1 Emergency Vehicle Access Road: Temporary improvements to the emergency vehicle access road on and across the Portola Parcel to Portola Avenue as required by PP 98-21 shall be completed in accordance herewith prior to the issuance of any additional building permits for the Project. The existence and use of such access road is contemplated by an existing easement between the Owners, which easement will be realigned by the Owners and set forth on Final Project Map (as hereafter defined). Such temporary improvements to the emergency vehicle access road may be constructed as a 24 foot wide roadway with one lane in each direction, and in any event shall comply with the requirements of the City's Director of Public Works and Fire Marshall, which requirements shall include, but not be limited to: (1) The driveway apron shall be fully improved; (2) A survey must be completed and approved to center the emergency vehicle access road on the property line; (3) Except as otherwise set forth herein, use of the emergency vehicle access road shall be limited to emergency vehicles and construction vehicles only, provided that use and access for construction purposes is subject to review by the City's Director of Public Works and may be revoked at any time, and further provided that (A) any construction traffic use of the emergency vehicle access road shall utilize transponders or other means to actuate the VDP Gate (as hereafter defined) for the passing of each construction vehicle, (6) the VDP Gate shall not be left open at any time, except for Fire Department emergencies, and (C) Designated Owner shall ensure that public traffic and residents do not use such emergency vehicle access road until permanent improvements have been installed in accordance herewith, at which time the emergency vehicle access road, as enhanced by the completion of the Secondary Access Permanent Improvements (as hereafter defined), may be utilized for purposes set forth in Section 2.2.3 herein. (4) A crash gate with a Knox box shall be located where the emergency vehicle access road joins Villa Del Pellegrino (the "VDP Gate"); (5) The emergency vehicle access road must be designed and constructed to support an 80,000 lb. vehicle and shall be a minimum of 3 inches AC on compacted native soil; 72500.00791v577720.1 (6) The bank along the north side of the emergency vehicle access road needs to be cut back 3/1; and (7) Improvement plans for the emergency vehicle access road shall be submitted, reviewed, and approved before construction takes place. 2.2.2 Amendment of CC&Rs: Designated Owner shall covenant and agree to be bound by the Second Amended and Restated Declaration of Condominium for Villa Portofino dated September 25, 2007 and recorded December 28, 2007 as Document No. 2007- 0769813 with the Riverside County Clerk and Recorder, as same has been modified prior to the Effective Date (the "Existing CC&R"s), pursuant to a recorded instrument in form and substance reasonably satisfactory to the City recorded prior to or concurrent with this Agreement and prior to the issuance of any additional building permits for the Project (the "CC&R Acknowledgement Obligation"). The CC&R Acknowledgement Obligation shall require that Designated Owner execute any future amendment to the Existing CC&Rs to clarity the property ownership descriptions in the Existing CC&Rs. 2.2.3 Portola Avenue Improvements/Full Improvements to the Secondary Access: Concurrent with the recording of this Agreement and the Final Map applicable to the Project derived from and based upon the TTM ('Project Final Map"), Country Club Drive Investors will dedicate right-of-way along Portola Avenue and Country Club Drive to the City as required by the Development Approvals (such dedication and acceptance by the City being referred to herein as the 'Portola Dedication"). The land that is the subject of the Portola Dedication is depicted on Exhibit "C' attached hereto (the 'Portola Dedication Land"). Concurrent with the recording of the Project Final Map, each Owner will provide to the City and the Party performing the underlying work, a construction access easement with terms reasonably acceptable to the applicable Parties thereto, if and to the extent required, to provide for the construction of the Portola Improvements (as hereafter defined). Prior to the recording of the Project Final Map, Designated Owner shall enter into an Improvement Agreement with the City substantially in the form of Exhibit "D" attached hereto (the 'Improvement Agreement'), which Improvement Agreement (a) shall address construction of (i) street improvements along Portola Avenue as required by the Development Approvals ('Portola Improvements"), and (ii) full improvements to the secondary access on and across the Portola Parcel to Portola Avenue as required by the Development Approvals ("Secondary Access Permanent Improvements"), and (b) shall be secured by a single improvement bond in the amount reasonably acceptable to the City securing the design and construction of the Portola Improvements and the Secondary Access Permanent Improvements in compliance with the Improvement Agreement (the 'Improvement Bond"). Once the Secondary Access Permanent Improvements have been installed, any access and use restrictions set forth in Section 2.2.1 hereof shall no longer apply and the portion of such road on the Portola Parcel may be utilized by the Owners and their successors, assigns, contractors and invitees; provided, however, that the VDP Gate (or a replacement or enhancement thereof) shall not be removed and entry upon the VP Land Parcel and the VP Builders Parcel shall be restricted to the use and access for ingress and egress purposes of emergency and construction vehicles and for the use and access of the owners of all or any portion of the Property other than the Portola Parcel, and their successors, mortgagees, lessees, licensees, contractors, guests and invitees, for pedestrian, bicycle and vehicular (including construction vehicles) access, ingress and egress; provided, however, nothing herein shall be deemed to restrict the use of the Owner of the Portola Parcel and the successors, assigns, contractors and invitees of such Owner, and the residents of the Portola Parcel, for purposes other than access to the VP Land Parcel and the VP Builders Parcel. The 72500.00791\7577720.1 Parties intend that the Improvement Bond will be posted upon execution of the Improvement Agreement and Designated Owner agrees to utilize commercially reasonable best efforts to procure such Improvement Bond prior to the occurrence of the Portola Dedication; provided, however, that in the event that the bonding company rejects Designated Owner's application for such Improvement Bond because neither the City nor Designated Owner then own the Portola Dedication Land, as evidenced by a written notice of rejection of Designated Owner's underlying application for the improvement Bond from such bonding company, or if such bonding company requires that the Portola Dedication occurs before such Improvement Bond becomes active, City shall permit Designated Owner to procure the Improvement Bond in active form promptly following the occurrence of the Portola Dedication; provided, however, that no additional building permits shall be issued for the Project until such Improvement Bond is procured and active. 2.2.4 Bond per Improvement Agreement: The Improvement Agreement and the Improvement Bond shall provide, to City's satisfaction, for completion of the Portola Improvements and the Secondary Access Permanent Improvements by the date two (2) years after the Effective Date of this Agreement but in any event prior to issuance of any building or grading permits for the Portola Parcel not specifically related to the Portola Improvements and the Secondary Access Permanent Improvements. Ownership of all or any portion of the Portola Parcel shall not be transferred prior to the occurrence of the Portola Dedication. If the Portola Improvements and/or the Secondary Access Permanent Improvements are not completed in a timely manner by Designated Owner in accordance with the standards set forth in the Improvement Agreement, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Project until such time as the Portola Improvements and the Secondary Access Permanent Improvements have been completed. The City shall have the right to use the applicable bond to complete the remaining/incomplete Portola Improvements and/or the Secondary Access Permanent Improvements, and upon completion, issuance of permits and certificates, and performance of inspections will resume. 2.2.6 Country Club Wall: The Project's perimeter wall along County Club Drive shall be repaired by the Party owning the underlying land before issuance of any additional building permits for the Project. The perimeter wall shall be extended along the Project's north property line to the adjoining City parcel (that has been developed as a fire station) by Country Club Drive Investors per plans approved by the City prior to the issuance of building permits for the Portola Parcel other than any such building permits that may be required in connection with the construction of the access road across the Portola Parcel or the Portola Improvements ("Country Club Wall Extension"). 2.2.6 Landscaping: Prior to issuance of any additional building permits for the Project, Designated Owner shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Country Club Drive, including the median, and all retention basins within the Project (the "Landscaping Maintenance Agreement"). The Landscaping Maintenance Agreement may be assigned by Designated Owner to the HOA. Prior to the issuance of the first certificate of occupancy or completion for the Portola Parcel, Country Club Drive Investors shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Portola Avenue (the "Portola Landscaping Maintenance Agreement'). 72500.00791v57n 0.1 2.2.7 Signal Maintenance: Designated Owner has entered into a signal maintenance agreement providing that Owners will pay to the City twenty five percent (25%) of the costs related to energy, maintenance and repair of the traffic signal at Country Club Drive and Via Portofino/Palm Greens Parkway (the "Signal Maintenance Agreement'). The Signal Maintenance Agreement may be assigned by Designated Owner to the HOA. 2.2.8 Affordable Housing In -Lieu Payment: As an affordable housing in -lieu payment each Owner shall pay $1,166 per residential unit constructed on their respective portion of the Property prior to the City's issuance of a certificate of occupancy for or applicable to such unit(s) (the "In -Lieu Fee"); provided, however, that with respect to the Portola Parcel, the unit breakdown for which the In -Lieu Fee is due shall be as follows: Lot 3 of the Portola Parcel shall contribute the In -Lieu Fee for 75 units (Skilled Nursing) and Lot 4 of the Portola Parcel shall contribute the In -Lieu Fee for 80 units (Assisted Living). No additional In -Lieu Fee shall be due with respect to the Portola Parcel. 2.3 Rights to Develop. Subject to the terms, conditions, and covenants of this Agreement, each Owner's right to develop their portion of the Project in accordance with the Development Approvals (and subject to the Conditions of Approval) shall be deemed vested upon complete execution of (1) this Agreement, and (2) the Improvement Agreement, which vesting shall expire with respect to an Owner and their portion of the Property upon the earlier of the following occurrences: (a) termination of this Agreement with respect to such Owner pursuant to the terms hereof; (b) an uncured material default of this Agreement by such Owner; (c) an uncured material default under the Improvement Agreement, subject to the City providing notice to the Owner of such default and a reasonable cure period; or (d) as to a particular phase, parcel, or lot comprising a portion of the Project, the earlier of the final approved City inspection of the completed development on such phase, parcel, or lot, or the issuance by the City of a certificate of occupancy for the last improvement to be occupied on such phase, parcel, or lot. Additionally, (as) in the event of and during the period of an uncured default under the Landscaping Maintenance Agreement or the Signal Maintenance Agreement, and subject to the City providing notice of such default and a reasonable cure period to the Owners, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Project, and (bb) in the event of and during the period of an uncured default under the Portola Landscaping Maintenance Agreement, and subject to the City providing notice of such default and a reasonable cure period to Country Club Drive Investors, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Portola Parcel. So long as this Agreement remains in full force and effect, and subject to the terms of the preceding sentence, City agrees with respect to the Project to issue building permits and certificates of occupancy and to conduct inspections and review plans and submittals in the ordinary course, and to cooperate with Owners with respect to satisfying any other approvals or authorizations required by the Existing Development Regulations (as hereafter defined) and any applicable New Laws (as hereafter defined). Except for the expiration set forth in clause (a) of the preceding sentence, the expiration of the vesting right set forth in the preceding sentence shall not terminate the obligations of Owners under this Agreement. Except as explicitly modified by this Agreement, and except as otherwise expressly provided herein, the Project shall remain subject to the following, to the same extent it would without this Agreement: W 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 72500.00791 \7577720.1 committees existing on the Effective Date of this Agreement (collectively, the "Existing Development Regulations"); (ii) all amendments or modifications to Existing Development Regulations after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Owner's ability to develop and construct the Project in accordance with the Development Approvals, unless such New Laws are (A) adopted by the City on a City wide -basis, with no exceptions or grandfather clause of any kind applicable to similar developments, and applied to the Site in a non-discriminatory manner, (B) required by a non -City governmental entity to be adopted by or applied by the City to the Project (or, if adoption is optional, if the failure to adopt or apply such non -City governmental law or regulation and apply same to the Project would cause the City to be in violation of state of federal law, or to sustain a loss of funds or loss of access to funding or other resources or subject to any penalty not reimbursed in full by the Owners), or (C) New Laws that have been adopted by City Council as of the Effective Date but have not been finally approved by the Effective Date beyond any challenge or appeal period, but only to the extent the City specifically reserves the right to apply same to the Project under this Agreement. (iii) all subsequent development approvals and the conditions of approval associated therewith, including but not limited to any further site development permits, tract maps, and building permits; (iv) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable, which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees and costs are due and payable; and (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. 2.3.1 Additional Applicable Codes and Regulations. Notwithstanding any other provision of this Agreement, the City also reserves the right to apply the following to the development of the Project: 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. In the event of fire or other casualty requiring construction of more than fifty (50%) percent of any building previously constructed hereunder, nothing herein shall prevent the City from applying to such reconstruction, all requirements of the City's Building, Electrical, Mechanical, and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal Code, solely to the extent applicable to all development projects in the City. 72s .00791v577720.1 This Agreement shall not prevent the City from establishing any new City fees on a City- wide basis and applied to the Project in a non-discriminatory manner on a go forward basis, including new development impact fees, or increasing any existing City fees, including existing development impact fees, and to apply such new or increased fees to the Project or applicable portion thereof where such new or increased fees may be charged. 2.3.2 Owners' Obligations Regarding Conditions of Approval. The Owners shall comply with the Conditions of Approval for the Development Approvals. Owners acknowledge that additional conditions of approval beyond those set forth in Exhibit "B" may be applicable to the Project if imposed in conjunction with future Project Approvals; provided, however, that no additional conditions of approval or restrictions arising in connection with any such future Project Approvals shall attach to, condition or restrict any portion of the Property unless the underlying Owner is a party to or consents in writing to the application or submittal to the City seeking any such future Project Approvals. An Owner's failure to comply with the Conditions of Approval as they relate to such Owner's Property shall be a material breach of this Agreement by such Owner and grounds for its termination with respect to such Owner and such Owner's portion of the Property pursuant to Section 3.3 hereof. 2.3.3 Grading Plans/Pad Heights. Owners shall submit precise grading plans for review and approval of the City. Pad elevations on the precise grading plans for the VP Land Parcel and the VP Builders Parcel shall conform to the range of elevations shown on the preliminary grading plans approved by the City Planning Commission. 2.4 Changes and Amendments. The Parties acknowledge that refinement and further development of the Project will require subsequent development approvals and may demonstrate that changes are appropriate and mutually desirable in the Development Approvals, except that minor modifications to the Development Agreement, as determined by the Director of Community Development to not be a substantial change in the proposed Project or conditions of approval, can be approved by the Director of Community Development. In the event an Owner finds that a non -minor modification in the Development Approvals is necessary or appropriate as same relates to their Property, then subject to the Minor Modification Qualification, such Owner may apply for a subsequent development approval to effectuate such change and City shall process and act on such application if consistent with the terms hereof except as otherwise provided by this Agreement. 2.5 Modification or Suspension by State or Federal Law. In the event that state or federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 2.6 Intent and Purpose. The Parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority which cannot be restricted by contract pursuant to applicable law. 72500, 00791 \7577720.1 The provisions of this Agreement and benefits to be received by City and Owners hereunder are in the best interests of City and the health, safety, morals and welfare of its taxpayers and residents and are in accordance with the public purposes set forth in federal, state and local laws and regulations, including California Government Code Section 565865. The Parties hereby acknowledge that implementation of this Agreement and the resulting development of the Property will result in substantial public benefits that justify City's decision to execute this Agreement. These benefits include, but are not limited to, furtherance of the goals and objectives of the City's General Plan applicable to the Property, and the strengthening of the City's land use and social structure by stimulating economic activity and job creation within the City. ARTICLE 3 REMEDIES 3.1 Remedies. Each of the Parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement. However, the City shall not be liable under any circumstances for monetary damages for any breach of this Agreement or for any cause of action which arises out of this Agreement. 3.2 Specific Performance/Self Help. The Parties acknowledge that although money damages are available to the City for a breach of this Agreement, such money damages and other remedies at law generally are inadequate and specific performance and other non -monetary relief, including temporary and permanent injunctive relief, are particularly appropriate remedies for the enforcement of this Agreement by any Party and should be available to such Parry because it may be difficult and impracticable to determine the sum of money which would adequately compensate such Party for breaches of this Agreement; the Parties acknowledge and agree that any injunctive or equitable relief may be ordered on an expedited, priority basis. Additionally, each Owner shall have the right of self-help (including reasonable access rights) hereunder and under any agreements referenced herein to cure any default by another Owner herein or therein if such default by such other Owner would materially and adversely affect such non -defaulting Owner. In the event an Owner exercises such right of self help, the defaulting Owner shall reimburse the non -defaulting Owner for any and all costs associated with the exercise of such self help remedy upon demand, and the non -defaulting Owner shall have the right to record a lien on the defaulting Owner's portion of the Property to secure payment of such costs. 3.3 Termination. Subject to Section 4.8 hereof, the failure of an Owner to complete or satisfy in a timely manner the Conditions of Approval applicable to such Owner per section 2.3.2, or the Development Commitments applicable to such Owner, shall constitute a material breach of this Agreement and entitle the City to terminate this Agreement with respect to such Owner, at its absolute discretion, if such breach is not cured following notice of such breach and a reasonable opportunity to cure same (which cure period shall not be, in any event, less than 30 days). For the purposes of this section 3.3, the Development Commitments shall be deemed to apply to all of the Owner except that (a) the CC&R Acknowledgement Obligation shall not be deemed to apply to Country Club Drive Investors, and (b) the Country Club Wall Extension and any obligations arising from or in connection with the Portola Landscaping Maintenance Agreement shall not be deemed to apply to VP Land or VP Builders. ]2500.00]91\7=20.1 ARTICLE 4 MISCELLANEOUS PROVISIONS 4.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Riverside County Recorder within the period required by Government Code Section 65868.5. 4.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter hereof, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 4.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. 4.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California, without regard to conflicts of laws principles (if applicable). This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 4.5 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 4.6 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by another Party, or the failure by a Party to exercise its rights upon the default of another Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by such other Party with the terms of this Agreement thereafter. 4.7 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 4.8 Force Majeure. No Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control, (including the Party's employment force), government regulations, court actions (such as restraining orders or injunctions), another Party's breach of this Agreement, or other causes beyond the Party's control. 72500.00791 V5F 720.1 Without limiting the generality of the foregoing, upon the issuance of a court order enjoining development of the Project incident to any legal proceeding by a third party to challenge the modifications to the Development Approvals as described in this Agreement or to challenge any action taken by City in connection therewith, the Term of this Agreement shall automatically be extended for the period equal to the period of the pendency of such order. 4.9 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 4.10 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and (c) is binding upon each Party and each successor in interest during their ownership of the Property or any portion thereof. Notwithstanding the foregoing, this Agreement shall be deemed to have automatically terminated without any further actions required by any of the Parties upon (a) the closing of the sale of any condominium unit within the Project to a member of the homebuying public, but only with respect to such condominium unit and the buyer thereof, and (b) the conveyance of any Project common areas to the HOA, but only with respect to such Project common areas and the HOA. 4.11 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument. 4.12 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that no Party is acting as the agent of any other Party in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement with respect to any Parties hereto. The only relationship between City and Owners is that of a government entity regulating the development of private property and the owners of such property. 4.13 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of any Party at any time, the other parties shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The provisions of this section shall not require the taking of any actions which are prohibited by law or, except as expressly set forth in this Agreement, impair the lawful discretion of City as to those matters to which the law imparts discretion to City. 72500.00791 V51]720.1 4.14 Attorneys' Fees. If legal action is brought by any Party against the others for breach of this Agreement, or to compel performance under this Agreement, the prevailing Party shall be entitled to an award of reasonable attorneys' fees and litigation costs in addition to all other relief to which it may be entitled. 4.15 Cooperation in the Event of Legal Challenge. 4.15.1 The filing of any third party lawsuit(s) against City or Owners relating to this Agreement, the Development Approvals or any other Project related approvals (collectively "Project Approvals") or other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project or approval of any subsequent approvals, unless the third parry obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order. 4.15.2 In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, or the Project Approvals for the Project ("Project Challenge"), each Owner and City shall have the right, in its sole discretion, to elect whether or not to defend such action on its own behalf. Except as otherwise expressly provided herein, Designated Owner shall defend, indemnify, and hold harmless the City (including its agents, officers and employees) from a Project challenge with counsel chosen by the City, subject to Designated Owner's approval of counsel, which shall not be unreasonably denied, and at Designated Owner's sole expense; provided, however, that the City shall be responsible for salaries, benefits, administrative and overhead expenses incurred by the City in connection with any such defense (the "Defense and Indemnity Obligation"). If the City is aware of such an action or proceeding, it shall promptly notify Owners and cooperate in the defense. Designated Owner upon such notification shall deposit with City sufficient funds in the judgment of City Finance Director to cover the expense of the Defense and Indemnity Obligation without any offset or claim against said deposit to assure that the City expends no City funds, and City Finance Director may require additional deposits if at any time the current deposits are insufficient to assure that the City expends no City funds (the "Defense Deposit Obligation"). Any such deposited funds not utilized by the City to defend a Project Challenge shall be promptly returned to Designated Owner. Notwithstanding the foregoing, neither Designated Owner nor VP Builders shall have any obligation or responsibility hereunder pursuant to the Defense and Indemnity Obligation or the Defense Deposit Obligation, in which case Country Club Drive Investors shall be solely responsible for satisfying the Defense and Indemnity Obligation and the Defense Deposit Obligation (and entitled to a return of any unused funds), if (i) neither VP Land nor VP Builders is then in default of any obligations under this Agreement or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals, and (ii) such Project Challenge specifically involves and solely relates to the development of and/or the construction upon the Portola Parcel or was solely caused or created by the act or omission of Country Club Drive Investors (the "Designated Owner Exception"). If any Party elects to defend a Project Challenge, the Parties hereby agree to affirmatively cooperate in defending said Project Challenge and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law. As part of the cooperation in defending a Project Challenge, the Parties shall coordinate their defense in order to make the most efficient use of legal counsel and to share and protect information. Each Party shall have sole discretion to terminate its defense of a Project Challenge at any time. The City shall not settle any third party litigation of Project Approvals without Designated Owner's consent, which consent shall not be unreasonably withheld, ]2500.00]91 V51A20.1 conditioned or delayed, unless Designated Owner fails to deposit sufficient funds to assure defense and indemnity of the City. If Designated Owner is responsible hereunder for satisfying the Defense and Indemnity Obligation and the Defense Deposit Obligation because the Designated Owner Exception does not apply, Country Club Drive Investors, although not responsible to City hereunder for satisfying the Defense and Indemnity Obligation or the Defense Deposit Obligation, shall be responsible for reimbursing Designated Owner upon demand for 28% of the funds required from Designated Owner to satisfy the Defense and Indemnity Obligation and the Defense Deposit Obligation in accordance herewith before taking into account any reimbursement from other Owners (the "CCDI Reimbursement Obligation"), and VP Builders shall be responsible for reimbursing Designated upon demand for 36% (or as otherwise agreed to by VP Land and VP Builders) of such required funds, which obligations shall be secured by lien rights in favor of Designated Owner; provided, however, that -the CCDI Reimbursement Obligation shall not apply, and Country Club Drive Investors shall have no obligation or responsibility hereunder to the City or to VP Land nor VP Builders with respect to any aspect of the Defense and Indemnity Obligation and the Defense Deposit Obligation if (x) Country Club Drive Investors is not then in default of any obligations under this Agreement or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals, and (y) such Project Challenge specifically involves and solely relates to the development of and/or the construction upon the VP Land Parcel and/or the VP Builders Parcel or was solely caused or created by the act or omission of VP Land and/or VP Builders. 4.16 Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Law in effect as of the Effective Date. Accordingly, to the extent the subsequent amendment to the Development Agreement Law would affect the provisions of this Agreement, such amendment shall not be applicable to the Agreement unless necessary for this Agreement to be enforceable. (Signatures follow on next page) 72500.00791\7577720.1 SIGNATURE PAGE TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT CITY: CITY OF PALM DESERT a California charter city 0 Its: ATTEST: By: Rachelle D. Klassen, City Clerk APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP By: Dave J. Erwin, City Attorney 72500.00791 Vs]A2o.1 SIGNATURE PAGE OF OWNERS VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT VP Land, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager as Rudy C. Herrera, Manager VP Builders, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager M Rudy C. Herrera, Manager Country Club Drive Investors, LLC, a Delaware limited liability company Name: 72500.00791v5n720.1 STATE OF CALIFORNIA COUNTY OF On _, 2012, before me, (insert name) Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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. [SEAL] Notary Public, State of California STATE OF CALIFORNIA COUNTY OF On _, 2012, before me, (insert name) Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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. [SEAL] Notary Public, State of California ]2500.00]91 V57A20.1 STATE OF CALIFORNIA COUNTY OF On , 2012, before me, (insert name) Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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. [SEAL] Notary Public, State of California STATE OF CALIFORNIA COUNTY OF On _, 2012, before me, (insert name) Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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. [SEAL] Notary Public, State of California 72500, 00791 \7577720.1 EXHIBIT "A-1" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of VP Land Parcel The land referred to herein is situated in the State of Califomia, County of Riverside, City o= PALM DESERT, and described as follows: PARCEL A: LOT 1 OF TRACT 29489, IN THE CITY OF PALM DESERT, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 311, PAGES 60 AND 61 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THOSE PORTIONS OF LOT I OF TRACT 29489 SHOWN AND DEPICTED ON THOSE CERTAIN CONDOMINIUM PLANS FOR Vi:LLA PORTOFINO, FOR PHASES 1 & 3 RECORDED JANUARY 23, 2002 AS INSTRUMENT NUMBER 2002-038727 AND AMENDED DECEMBER 28, 2007 AS INSTRUMENT NUMBER 2007-0769812 (PHASE D: AND NOVEMBER 30, 2004 AS INSTRUMENT NUMBER 2004-0950249 (PHASE 3) ; ALL OF OFFICIAL RECORDS, ALSO EXCEPTING THEREFROM [SEE FOLLOWING PAGE] 72500.00791 \7577720.1 EXHIBIT "A-1" continued ALSO EXCEPTING FROM PARCEL A: PARCEL 1: Units 73 through 112, being a portion of Lot 1 of Tract No. 29489, In the City of Palm Desert, as shown by Map on Ole in Book 311, Pages 60 and 61 of Maps, in the Office of the County Recorder of Riverside County, California, as shown on the Condominium Plan for Phase I1 of Villa Portofino Project, recorded December 28, 2007 as Instrument No. 2007-770586 of Official Records of Riverside County. PARCEL 2: An undivided 40140ths Interest in and to the "Building Common Area" as shown in the Plan and more particularly defined In the Declaration. EXCEPTING THEREFROM THE FOLLOWING: A. Units 73 through 112 IndusIve, as shown and defined In the Declaration and Plan above mentioned; and B. All of those certain "Exclusive Use Common Areas' more particularly shown and described In the Declaration and Plan above mentioned and reserved to particular units other than the unit described inand as Parcel I herein; and C. Excepting and reserving, however, the easements and rights of way described in the Declaration for the project and any exhibits attached thereto ("Declaration") recorded on Januarryy 2�3, 2002 as Instrument No. 2002-038728 and amended and restated March 24, 2004 as Instrument No. Z004- 2058W and December 28, 2007 as Instrument No. 2007-0769813, all of Official Records of the County or Riverside, State of California. PARCEL 3: A non-exclusive easement for Ingress and egress and a non-exclusive easement and right to enter upon any portion of Lot 1 for the purpose of performing any duty or exercising any right of the Patin Desert Villa Portofino Homeowners' Association under that certain Amended and Restated Declaration of Condominium recorded In the Office of the Recorder on March 24, 2004 as instrument No. 2004.0205658 of Official Records 'Declaration"). This easement and right to enter Includes, without limitation, the right to enter the Members =men Area, the Building Common Area and the Units. Ail of those non-exclusive rights appurtenant to Parcels 1 and Z above for Ingress, egress and support, and all other purposes described In the Declaration and Plan above mentioned. PARCEL4: Those certain exclusive Use Common Areas as defined by the above referenced Condominium Plan and Declaration appurtenant to Parcel 1 above. APN: 622.020.090-9 (Portion) PARCEL B: AN ACCESS EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS PHASE I OF THE VILLA PORTOFINO CONDOMINIUM PROJECT AS SET FORTH ON THAS CERTAIN CONDOMINIUM PLAN RECORDED JANUARY 23, 2002, AS FILE NO. 2002- 038727 SAID EASEMENT WAS RECORDED AUGUST 31, 2006 AS INSTRUMEN17 NUMBER 2006-0646593, OF OFFICIAL RECORDS. 72500.00791 \7577720.1 EXHIBIT "A-2" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of VP Builders Parcel The land referred to herein U situated In the State of California, County of Rlvesside, City of Palm Desert, and described as fatim s: PARCEL A: THAT PORTION OF LOT I AND A PORTION OF LOT A OF TRACT NO.29499, IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 311 PAGES 60 AND 61 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AS SAID BOUNDARIES ARE SHOWN AND DEPICTED IN THAT CERTAIN CONDOMNIUM PLAN ("PLAN-) FOR PHASE 3 OF VELA PORTOFINO PROJECT ("PROJECT") RECORDED NOVEMBER 30, 2004 AS DOCUMENT NO.2004.950249. IN THE OFFICIAL RECORDS OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA. PARCEL B: AN ACCESS EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS PHASE I OF THE VELA PORTOFINO CONDOMINIUM PROJECT AS SET FORTH ON THAT CERTAIN CONDOMINIUM PLAN RECORDED JANUARY 23, 2002, AS FILE NO.2002-039727 SAID EASEMENT WAS RECORDED AUGUST 31, 2006 AS INSTRUMENT NUMBER 20064646593, OF OFFICIAL RECORDS 72500.00791 V577720.1 EXHIBIT "A-X TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of Portola Parcel The Sand referred to herein is shunted in the State of Calirornis, County ofRfversidc, City of Palm Desert, and described as follows: THE POTION OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 8, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO AND MERIDIAN, CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SAIDNORTH HALF OF THE NORTHEAST QUARTER WITH THE SOUTH LINE OF THENORTH 44.00 FEET OF SAID NORTH HALF OF THE NORTHEAST QUARTER; THENCE NORTH 89-37'25" EAST ALONG SAID SOUTH LINE A DISTANCE OF 2060.13 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 89°37-25"FAST ALONG SAID SOUTH LINE ADISTANCE OF 32955 FEET TO TIE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAID DEEDED TO THE CITY OF PALM DESERT RECORDED MARCH 5, 1996 AS INSTRUMENT No- 51057, OF OFFICIAL RECORDS AND RE -RECORDED SEPTEMBER 24, 1986 AS INSTRUMENT NO.234154,OF OFFICIAL RECORDS; THENCE SOUTH OMT3S" EAST ALONG THE WESTERLY LINE OF SAID CITY LAND A DISTANCE OF 51.00 FEET TO AN ANGLE POINT; THENCE SOUTH 45" 38" EAST ALONG LAST SAID WESTERLY LINE A DISTANCE OF23894 FEET TO AN ANGLE POINT; THENCE SOUTH W52'36" EAST ALONG THE SOUTH LIFRi OF SAID CITY LAND ADISTANCE OF 40.00 FEET TO A POINT ON TH WEST LINE OF THE EASTERLY 50.00 FEET OF SAID NORTH HALF OF THE NORTHEAST QUARTER; THENCE SOUTH 00°07'20"WEST ALONG LAST SAID WEST LINE A DISTANCE OF 1060.61 FEET TO A POINT OF INTERSECTION OF SAID WEST LINE OF THE EASTERLY 50.00 FEET WITH THE SOUTH LINE OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SAID SECTION 8; THENCE SOUTH 99-41Tr WEST, ALONG LAST SAID SOUTH LINE ADISTANCE OF 170.00 FEET; THENCE NORTH 00°07'20" EAST, A DISTANCE OF 150.00 FEET; THENCE SOUTH 89-41'07- WEST, A DISTANCE OF 369.69 FEET; THENCE NORTH OOT7'20" EAST A DISTANCE OF 1131.08 FEET TO A POINT ON THE SOUTH LINE OF THE NORTHERLY 44.00 FEET OF SAID NORTH HALF OF THE NORTHEAST QUARTER, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING. AS PER CERTIFICATE OF COMPLIANCE (WAIVER OF PARCEL MAP PMW 00.23) RECORDED OCTOBER 24,2001 AS INSTRUMENT NO, 2001578389, OF OFFICIAL RECORDS. APN: 622-020-086-6 (End ofLcgal Description) 72500.00791 V577720.1 EXHIBIT "B" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT CONDITIONS OF APPROVAL CONDITIONS OF APPROVAL 2.7 CASE NOS. DA 11-516, PP 98-21 Amendment No. 2, and TTM 36404 DEPARTMENT OF COMMUNITY DEVELOPMENT: 1. The development of the property shall conform substantially with exhibits on file with the Department of Community Development/Planning, as modified by the following conditions. 2. 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 City Fire Marshal Public Works Department Evidence of said permit or clearance from the above agencies shall be presented to the Department of Building & Safety at the time of issuance of a building permit for the use contemplated herewith. 3. Prior to issuance of any additional building permits for the Project, Designated Owner shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Country Club Drive, including the median, and all retention basins within the Project (the "Landscaping Maintenance Agreement'). The Landscaping Maintenance Agreement may be assigned by Designated Owner to the HOA. Prior to the issuance of the first certificate of occupancy or completion for the Portola Parcel, Country Club Drive Investors, successors and assigns, shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Portola Avenue (the "Portola Landscaping Maintenance Agreement"). All to be consistent with the Property Maintenance Ordinance (Ordinance No. 801), the approved landscape plan, and the current addition of the City of Palm Desert Plant Maintenance Guide. 4. Access to trash/service areas shall be placed so as not to conflict with parking areas. The applicant shall contact Burrtec Waste and Recycling, Inc. to provide trash and recycling services that shall include the provisions of and operation of a 72500.W791\7577720.1 stinger/bin truck to maneuver the bins to a collection area above ground from within the underground service area. Depending on the location of the trash and recycle bins, the trash enclosures may be required and shall be consistent with the Palm Desert Municipal Code Chapter 8.12 and other conditions, such as number, size, and location of enclosures to accommodate the required number of bins. All bins or enclosures must be screened from public view. 5. All sidewalk plans shall be reviewed and approved by the Department of Public Works. 6. The applicant shall submit design development plans to the Architectural Review Commission before review of the construction drawings by the City. 7. All conditions of approval shall be recorded with the Riverside County Clerk's office before any building permits are issued. Evidence of recordation shall be submitted to the Department of Community Development/Planning. 8. The Final Development Agreement shall be recorded within 40 days of final approval of the project by the City Council. 9. Prior to the City issuing any building permits for Lot 3 and Lot 4 on Tentative Tract Map 36404, the existing block wall on Country Club Drive shall be extended to the adjoining city owned fire station parcel. 10. Applicants shall defend, indemnify and hold harmless the city against any third party legal challenge to these approvals, with counsel chosen by the city at applicants expense. The defense obligation is described in more detail in the Amended and Restated Development Agreement. 11. None of these project approvals is valid until recordation of the certificate of approval and the Development Agreement. If a court voids any of the project approvals, including the Certificate of Compliance or Development Agreement, all of the development approvals shall be null and void. 12. The City Council approval of the Certificate of Compliance is to retroactively approve the prior unapproved subdivision of the property. 13. Developer shall enter into a recordable Development Agreement to memorialize these and other conditions placed on the project. DEPARTMENT OF PUBLIC WORKS: Prior to recordation of the Tract Map and any permits: 72SM00791\75=0.1 1. The applicant shall not be placed on the agenda for the first reading of City Council until the preliminary WQMP is approved. 2. The final tract map shall be submitted to the Director of Public Works for review and approval. 3. Dedicate additional right of way for ultimate improvements at Portola Avenue secondary access as set forth as Lot B of the tentative tract map. 4. The final tract map shall dedicate an additional 11' of right-of-way along Country Club Drive for a total of 55' from center line as set forth as lot A thereon. 5. Reciprocal access easements and drainage easements between lots shall be provided for on the final tract map or in the CC&R's. 6. The final tract map shall provide for a public 20' pedestrian easement and a private 20' landscape easement within the 20' adjoining and along Portola Avenue, and a private 20' landscape easement along Country Club Drive, in addition to the street right of way noted above, as set forth on the tentative tract map. An additional public pedestrian easement may be required on Country Club Drive for any portion of sidewalk beyond 55-feet south of the street centerline. 7. Prior to City Council approval of the final tract map, the applicant shall construct or enter into a subdivision agreement and post security, in a form and amount acceptable to the City Engineer, guaranteeing the construction of all off -site improvements. Improvements, as specified in the Development Agreement, shall include: a. Improvements on Portola Avenue including, but not limited to, the installation of curb and gutter, asphalt paving, an 8' ADA compliant meandering sidewalk, and a deceleration lane. Design shall be per the approved site plan. b. Full Improvements of the secondary access. The construction of an emergency vehicle access road per section 2.21 of the Development Agreement shall be completed before issuance of any additional building permits for the project. 8. The emergency vehicle access road to Portola Avenue may be used by construction traffic through the use of transponders or other means to actuate the gates for the passing of each construction vehicle. The gates are not to be left open at any time, except for Fire Department emergencies. The applicant is responsible to ensure that public traffic and residents do not use this access road. Construction access on the emergency vehicle access road is subject to review by the Director of Public Works and may be revoked at any time. 72500.00791\7577720.1 9. Access rights shall be restricted along Portola Avenue except at the "Secondary Access". 10. The construction of a block wall on Country Club Drive prior to issuance of any building permits for units within Lots 3 and/or 4. 11. Landscaping along Portola Avenue frontage shall be completed when development within Lots 3 and/or 4 occurs. 11. The applicant shall pay the appropriate signalization fee in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55 and drainage fee in accordance with Section 26.49 of Palm Desert Municipal Code and Palm Desert Ordinance Number 653. 12. The applicant will execute a recordable covenant agreeing to be bound by existing CC&R's and to execute future amendments. Prior to any further condominium plans being recorded, the applicant shall: 13. Record the final tract map. The condominium plans shall reference the final tract map recording information. 14. Submit a sample grant deed relative to the conveyance of the units, and the condominium plan, to the Public Works Department for review prior to the recording of any further condominium plans and related deeds. Prior to the issuance of grading permits the applicant shall: 15. Provide the City Engineer with evidence that a Notice of Intent (NOI) has been filed with the State Water Resources Control Board. Such evidence shall consist of a copy of the NOI stamped by the State Water Resources Control Board or the Regional Water Quality Control Board, or a letter from either agency stating that the NOI has been filed. 16. Submit a final Water Quality Management Plan (WQMP) for approval. The WQMP shall identify the Best Management Practices (BMPs) that will be used on the site to control predictable pollutant runoff. Prior to the issuance of grading permit, the Operation and Maintenance Section of the approved final WQMP shall be recorded with County's Recorder Office and a conformed copy shall be provided to the Public Works Department. 17. Storm drain/retention area 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. 7M0,00791v577720.1 18. Submit a PM10 application for approval. The applicant shall comply with all provisions of Palm Desert Municipal Code Section 24.12 regarding Fugitive Dust Control. 19. Submit precise grading plans for review and approval. Pad elevations on precise grading plans shall conform to the range of elevations shown on the preliminary grading plans approved by Planning Commission. 20. Identify all proposed and existing utilities on the precise grading plan. 21. Submit a landscape plan concurrently with the precise grading plan for review and approval. Applicants are advised to use the City of Palm Desert Design Guide when designing plans. Landscape plans must meet the following criteria: a. Must be water efficient in design and meet the City of Palm Desert's Water Efficient Landscape Ordinance. b. Planting plans must show location of proposed and existing utilities. c. Must match approved civil plans. d. All specs and details must be site specific. e. Applicants must have CVWD approval of their irrigation plans prior to City approval. f. Applicants must have a stamp or signature from the County Agricultural Commissioner before City approval. 22. Any deviation from the approved plans shall be reviewed for approval by the City Engineer prior to work commencing. 23. The applicant shall enter into a landscape maintenance agreement as specified in the Development Agreement. DEPARTMENT OF BUILDING AND SAFETY: 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 (Based on the 2008 Energy Efficiency Standards) 2007 CALIFORNIA BUILDING STANDARDS ADMINISTRATIVE CODE 2007 CALIFORNIA FIRE CODE 72500.00791 V577720.1 1. The Fire Department requires the following fire protection measures be provided in accordance with the City of Palm Desert Municipal Code, 2007 California Building and Fire Codes with applicable NFPA and or any other nationally recognized Fire Protection Standards. The Fire Department shall set the minimum fire flow for the remodel or construction of at buildings per California Fire Code Appendix B. 2. The applicant shall provide a fire flow of 1500 gpm for a 1-hour duration at 20 psi residual pressure from a permanently installed Fired Hydrant before any combustible material is placed on the job site. 3. The applicant shall provided proof the existing water system is capable of providing the minimum necessary gpm fire flow for 2500 gpm for multifamily dwellings prior to any project approvals. 4. The applicant shall provide the required fire flow from a permanent wet Barrel Super Hydrant with 1-4" and 2-21/2" discharge outlets located not less than 25' and no more than 165' from any portion of a multifamily dwelling prior to any building permits approvals. 5. The applicant shall submit water plans to be reviewed and approved by the Fire Marshal and include verification that the water system is capable of providing the required fire flow. 6. The applicant shall install a complete NFPA 13 fire sprinkler system. This applies to all buildings with a 3000 square foot total cumulative floor area. The Fire Marshal shall approve the locations of all fire appliances including Post Indicator Valves, Fire Department Connections and Fire Hydrants. All Fire Appliances shall not be within 25 feet of a building and all Fire Department Connections shall be within 50 feet of a Fire Hydrant. 7. All valves controlling the water supply for automatic sprinkler systems and water - flow switches shall be monitored and alarmed per the 2007 California Building and Fire Code. 8. The applicant shall install a complete NFPA 72 Fire Alarm/Sprinkler Monitoring system as required by the 2007 California Building and Fire Code. 9. The applicant shall install portable fire extinguishers as per NFPA 10. The applicant shall install a minimum of 1-2A10BC Fire Extinguisher for every 3,000 square feet, 3' to 5' above grade with no more than 75' walking distance from any point of the business to the extinguisher. The applicant shall install a "K" class 72500.00791\757777M1 fire extinguisher as required for commercial kitchens within 30' of the hazard area. 10. The applicant shall install a Hood/Duct Fire Suppression system as per NFPA 96 for all public commercial and private cooking operations with the exception of a single-family residence. 11. The applicant shall install an all weather Fire Department accessible roadway extending to any portion of the building where as a 150' hose lay can be utilized for the inaccessible building perimeter. Construction type of the same shall be approved by the Fire Marshal and be rated for 80,000 lbs. Turf block will not be accepted. Fire lane access roadway minimum width is 20' and height clearance is 13'6" Public roadway minimum unobstructed width is 36' with parking on both sides. A Fire Apparatus Turn around shall be provided for dead end streets in excess of 150' in length with approved cul-de-sac or hammer head dimensions. 12. Knox access devices shall be provided as follows: • A Knox Padlock for every manual gated entrance. 13. The applicant shall install an illuminated building address in accordance to the city standards for size and location. The building address shall be installed on the building in an unobstructed locale and the color shall be contrasting to background. 14. The applicant shall submit three sets of the following plans for review including tenant improvement: • Fire Alarm System • Sprinkler System • Fire Main Underground • Hood Suppression System • Site Plan to Scale 15, Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. 72500.00791V57 720.1 EXHIBIT "C" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT DEPICTION OF PORTOLA RIGHT OF WAY DEDICATION (Lot "B" in the depiction on the following page below) 72500.00791 \7577720.1 jr 746 LO* 4 MOAN =t's Ag - --- ------ ,IT f r -4 b� LOT 3 IL AD& LLO owmw HOA aTwA 2 T'/ 72500.00791\757n20.1 EXHIBIT "D" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FORM OF IMPROVEMENT AGREEMENT [Attached behind this page] 7e500.00791\75M20.1