2011 11 08 PCCity of La Quinta
Planning Commission Agendas are now
available on the City's Web Page
www.la-guinta.org
PLANNING COMMISSION
AGENDA
A Regular Meeting to be Held at the
La Quinta City Hall Council Chamber
78-495 Calle Tampico
La Quinta, California
NOVEMBER 8, 2011
7:00 P.M.
**NOTE**
ALL ITEMS NOT CONSIDERED BY 11:00 P.M. WILL BE CONTINUED TO THE NEXT
REGULAR MEETING
Beginning Resolution 2011 -017
Beginning Minute Motion 2011-004
I. CALL TO ORDER
A. Pledge of Allegiance
B. Roll Call
II. PUBLIC COMMENT
This is the time set aside for public comment on any matter not scheduled for public
hearing. Please complete a "Request to Speak" form and limit your comments to
three minutes.
III. CONFIRMATION OF AGENDA
IV. CONSENT CALENDAR
Approval of the Minutes of the Regular Meeting of October 11, 2011.
V. PUBLIC HEARINGS:
For all Public Hearings on the Agenda, a completed "Request to Speak" form must be
filed with the Executive Secretary prior to the start of the Planning Commission
consideration of that item. The Chairman will invite individuals who have requested
the opportunity to speak, to come forward at the appropriate time.
Any person may submit written comments to the Planning Commission before a
public hearing, may appear and be heard in support of, or in opposition to, the
approval of the project(s) at the time of the hearing. If you challenge any project(s) in
court, you may be limited to raising only those issues you or someone else raised at
the public hearing or in written correspondence delivered to the City at, or prior to the
public hearing.
A. Item ................... CONDITIONAL USE PERMIT 2011-133
Applicant........... Joe Moore Construction, Inc.
DBA Windsun Energy Systems
Location............ 81-600 Avenue 58, Imperial Irrigation District's La Quinta
Office
Request ............. Consideration of a Conditional Use Permit to Allow for the
Construction of a 30-Foot Tall, 1 K Off -Grid Demonstration
Vertical Axis Wind Turbine.
Action ................. Application withdrawn - no action required.
B. Item ................... DEVELOPMENT AGREEMENT 2011-022, AND RIGHT-OF-
WAY VACATION 2008-042
Applicant...........
Dr. Kathryn Carlson, Village Park Animal Hospital.
Location............
51-230 Eisenhower Drive, Northeast Corner of Avenida
Montezuma and Eisenhower Drive
Request .............
Consideration of a Development Agreement for Parking
Management and a Report of Finding Under California
Government Code Section 65402 That a Proposed Right -Of -
Way Vacation of a ± 535 Square Foot Portion of
Eisenhower Drive is Consistent with the General Plan.
Action .................
Staff Recommendation for Adoption of Resolution
Recommending Approval (DA 201 1-022), with Conditions -
Resolution 2011-
Action .................
Staff Recommendation for Adoption of Resolution
Recommending Approval (ROW-V 2008-042), with
Conditions - Resolution 201 1-_
VI. BUSINESS ITEM:
VII. CORRESPONDENCE AND WRITTEN MATERIAL:
VIII. COMMISSIONER ITEMS:
A. Report on City Council meetings of October 18, and November 1, 2011.
B. Commissioner Weber is scheduled to attend the November 15, 2011,
City Council meeting.
IX. DIRECTOR ITEMS:
X. ADJOURNMENT:
This meeting of the Planning Commission will be adjourned to a Regular Meeting to be held
on November 22, 2011, at 7:00 p.m.
DECLARATION OF POSTING
I, Carolyn Walker, Executive Secretary of the City of La Quinta, do hereby declare that the
foregoing Agenda for the La Quinta Planning Commission meeting of Tuesday, November 8,
2011 was posted on the outside entry to the Council Chamber, 78-495 Calle Tampico and
the bulletin board at the La Quinta Cove Post Office, 51-321 Avenida Bermudas, on
Thursday, November 3, 2011.
DATED: November 3, 2011
CAROLYN WALKER, Executive Secretary
City of La Quinta, California
Public Notices
The La Quinta City Council Chamber is handicapped accessible. If special equipment is
needed for the hearing impaired, please call the City Clerk's office at 777-7123, twenty-four
(24) hours in advance of the meeting and accommodations will be made.
If special electronic equipment is needed to make presentations to the Planning Commission,
arrangements should be made in advance by contacting the City Clerk's office at 777-7123.
A one (1) week notice is required.
If background material is to be presented to the Planning Commission during a Planning
Commission meeting, please be advised that eight (8) copies of all documents, exhibits,
etc., must be supplied to the Executive Secretary for distribution. It is requested that this
take place prior to the beginning of the 7:00 p.m. meeting.
MINUTES
PLANNING COMMISSION MEETING
A regular meeting held at the La Quinta City Hall
78-495 Calle Tampico, La Quinta, CA
October 11, 2011
IV.
CALL TO ORDER
A. A regular meeting of the La Quinta
order at 7:00 p.m. by Chairman AN
B. PRESENT: Commissioners Bath
Chairman Alderson.
ABSENT: None
STAFF PRESENT:
Jay
PUBLIC COMM r, None
CONFIRMAT1t N"OF TH AGENDA:
7:00 P.M.
n was called to
Wilkinson,`Wr"ht, and
David S-vyer, Associate Planner
utive Secretary Carolyn Walker.
being nb {nme Emously
'suggestions, it was moved and seconded by
issioners ht/Bws to approve the minutes of September 27,
mrtte
is sub;;;Una approved.
V. PUBLIC`HEARIN
A. Condition t-o'bse Permit 2007-107, Extension No. 1; a request by Grace
Baptist Church, for consideration of a time extension to a Conditional Use
Permit for a church to occupy an approximately 3,400 square foot tenant
space within an existing commercial office building, located at 47-110
Washington Street, Suite 101 (La Quinta Professional Plaza).
Associate Planner Jay Wuu presented the staff report, a copy of which is
on file in the Planning Department.
Planning Commission Minutes
October 11, 2011
Chairman Alderson asked if there were any questions of staff. There
being none, he opened the public hearing portion of the meeting and
asked if the applicant would like to speak.
Mr. Larry Chappell, 47-110 Washington Street, Suite 101, Pastor of
Grace Baptist Church, introduced himself, gave some background
information on the church and offered to answer Commissioners'
questions.
Commissioner Weber asked if they were
attendees in the existing space.
Mr. Chappell said they had enough
auditorium was capable of accomn
Commissioner Barrows said the extdit@
Mr. Chappell had enough room if they h
Associate Planner Wuu cq0.6hWted the
applicant's needs and ifyb'the1' oven
amendment would come backi,to the °PIb
all their
nce, plus their
a much
0 r four years,,`',and asked if
expand in that time frame.
)act )wasmuchlarger than the
any *&ificant changes, the
Commissioner jr asked ifs ere had teen any comments from the
noticing 9(.1 a surr�iij— ng ne�gl` orhood. Mr. Chappell said no.
Chairman A'ld rsowIcgrnmented on,"1) existing parking and 2) room for
ex with ffie' curret� ..f "or,, 'Ian; both of which were adequate.
Chairman' arson A$ked- if there were any more questions of the
applicant. Th ,being erne he asked if there was any public comment.
0 asked if there was any further public comment. There
rman Alderson closed the public hearing and opened the
ission discussion.
There befiig no further discussion, it was moved and seconded by
Commissioners Barrows/Wright to approve Resolution 2011-016
approving Conditional Use Permit 2007-107, Extension 1, subject to the
conditions submitted. Unanimously approved.
-2-
Planning Commission Minutes
October 11, 2011
VI. BUSINESS ITEMS:
VII. CORRESPONDENCE AND WRITTEN MATERIAL:
Vill. COMMISSIONER ITEMS:
A. Report on City Council Meeting of October 4, 2011, given by
Commissioner Wright, followed by general discussion on the City of
Indio/Goldenvoice concert item.'
B. Chairman Alderson is scheduled to atte`d the, ,, tober 18, 2011, City
Council meeting.k'k '
IX: DIRECTOR ITEMS:
A. The following items were suggeste _4 0 'discussion,{tems for the
Joint Council meeting of November 1 i0i }
• Over -seeding process I'sir ality and
• Roundabouts - applicability a
• Regional - interagicy coordiC+ation.
fiegrQnal Tia7ts , spfio#ty' the Whitewater Trail - the need to
co"rrt tla workit on the Palm Springs to Salton Sea "Car Free" route.
Regional y - cersation about regional public utility needs.
• Regional Building Ordinances - multiple agency consistency.
• Alterrstiui power sources -incorporation into development design
and enpburagement of solar, wind, and fuel cell technology.
Planning Manager Sawyer advised the Commissioners these suggestions
would be passed on to the Planning Director. After his review, several items
would be selected and the Commissioners would be notified of time, place,
and topics for the Joint Council/Commission meeting.
-3-
Planning Commission Minutes
October 11, 2011
X. ADJOURNMENT:
There being no further business, it was moved and seconded by
Commissioners Wilkinson/Wright to adjourn this regular meeting of the
Planning Commission to the next meeting to be held on October 25, 2011.
This meeting was adjourned at 8:00 p.m. on October 11, 2011.
Respectfully submitted,
Carolyn Walker, Executive Secretary
City of La Quinta, California
-4-
T--df ot 4 a"
MEMORANDUM
PH #A
TO: Honorable Chairman and Members of the Planning Commission
FROM: Les Johnson, Planning Directo 9
DATE: November 3, 2011
SUBJECT: Conditional Use Permit 2011-133
On October 31, 2011, staff received a letter from Joe Moore of Windsun Energy
Systems, the project applicant, requesting a formal withdrawal of Conditional Use
Permit 2011-133. Their client, Imperial Irrigation District, decided to not proceed
with the demonstration wind turbine project, which was proposed concurrently in
both La Quinta and El Centro. No further information or reasons have been provided
to staff regarding the decision.
F
PH #B-1
STAFF REPORT
PLANNING COMMISSION
DATE: NOVEMBER 8, 2011
CASE NO: DEVELOPMENT AGREEMENT 201 1-022
APPLICANT/OWNER: VILLAGE PARK ANIMAL HOSPITAL (VPAH, L.L.C.)
REQUEST: CONSIDERATION OF A DEVELOPMENT AGREEMENT
FOR PARKING MANAGEMENT, TO ALLOW
CONSTRUCTION OF A ±8,752 S.F. TWO-STORY
VETERINARY OFFICE BUILDING IN THE VILLAGE AT LA
QUINTA, AS APPROVED UNDER VILLAGE USE PERMIT
2008-042
LOCATION: NORTHEAST CORNER OF EISENHOWER DRIVE AND
AVENIDA MONTEZUMA
ENVIRONMENTAL
CONSIDERATION: THE PLANNING DIRECTOR HAS DETERMINED THAT
THIS DEVELOPMENT AGREEMENT IS -SUBORDINATE TO
VILLAGE USE PERMIT 2008-042, AND THEREFORE THE
ORIGINAL EXEMPTION FROM CEQA REVIEW UNDER
GUIDELINES SECTION 15332 (INFILL DEVELOPMENT)
REMAINS APPLICABLE
GENERAL PLAN
DESIGNATION: VC (VILLAGE COMMERCIAL)
ZONING: VC (VILLAGE COMMERCIAL)
SURROUNDING
LAND USES: NORTH — EXISTING RESIDENTIAL ZONED VC
SOUTH — LA QUINTA PARK ZONED PR
NORTHEAST — VACANT ZONED VC
WEST — EXISTING RESIDENTIAL ZONED VC
BACKGROUND:
Village Use Permit 2008-042 was approved by Planning Commission on September
29, 2011, under Planning Commission Resolution 201 1-015 (Attachment 1). One
of the approval condition requirements (Condition No. 4) was that the developer
and the City enter into a Development Agreement, for the purpose of clarifying the
applicant's parking obligations associated with development of the project.
The proposed building is an ±8,752 square foot structure approved for use as a
veterinary office. The project is required to provide 29 spaces, and 16 spaces have
been accommodated. The subject property size and configuration makes
compliance with parking requirements impractical. Section 9.150.050 of the La
Quinta Municipal Code, permits the use of a development agreement for parking
management and agreements in the Village Commercial district.
The staff report originally prepared for the project was presented on September 29,
2011. The Planning Commission staff report and meeting minutes from that date
have been attached (Attachment 2 & 3).
ANALYSIS:
The Development Agreement (Attachment 4) sets forth a contractual obligation to
provide required parking, in part through assessment of an in -lieu parking fee to pay
for future facilities and improvements that would provide a benefit to the Village as
a whole. The Agreement must be reviewed by the Planning Commission and
approved by City Council prior to issuance of any grading and/or building permits.
The key points of the agreement are:
• Developer to pay into a fund for each deficient space for the project. A
credit of one space for available on -street parking on Avenida Martinez is
allowable. The deficient number of spaces with this credit is 13.
• The required in -lieu fee payment shall be paid in up to two installments prior
to issuing any grading and/or building permit for the project. In addition, the
project approval is not effective unless and until this Agreement has been
approved by City Council.
• After 6pm all but five (5) spaces in the parking lot shall be made available for
general public use.
Public Notice
This case was advertised in the Desert Sun newspaper on October 28, 2011. All
property owners within 500-feet of the site were mailed a copy of the public
hearing notice as required. To date, no comments have been received. Any
correspondence received before the meeting will be transmitted to the Planning
Commission.
STATEMENT OF MANDATORY FINDINGS:
Based on the provisions of 9.250.030, LQMC, findings necessary to approve this
proposal can be made as noted in the attached Resolution to be adopted for this
case. 2
RECOMMENDATION:
1. Adopt Planning Commission Resolution 2011-_, recommending to the City
Council approval of Development Agreement 201 1-022.
Prepared by:
Andr ' J. Mogensen, AICP
Principal Planner
Attachments:
1. Approved Village Use Permit Site Plan from September 29, 2011
2. Planning Commission Staff Report from September 29, 2011
3. Planning Commission Meeting Minutes from September 29, 2011 (excerpt)
4. Draft Development Agreement for VUP 201 1-022 (VPAH LLC)
3
PLANNING COMMISSION RESOLUTION 2011-
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF LA QUINTA, CALIFORNIA,
RECOMMENDING TO THE CITY COUNCIL APPROVAL
OF A DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF LA QUINTA AND VPAH, L.L.C., TO
ESTABLISH PARKING MANAGEMENT FOR AN
±8,752 SQUARE FOOT VETERINARY OFFICE
BUILDING
CASE NO: DEVELOPMENT AGREEMENT 2011-022
APPLICANT: VILLAGE PARK ANIMAL HOSPITAL (VPAH, LLC)
WHEREAS, the Planning Commission of the City of La Quinta,
California, did on the 8`"day of November, 2011, hold a duly -noticed Public Hearing
to consider Development Agreement 201 1-022, for the establishment of parking
management restrictions as part of a ±8,752 square -foot veterinary office building,
as approved under Village Use Permit 2008-042, located at the northeast corner of
Eisenhower Drive and Avenida Montezuma, and more particularly described as:
LOTS 9, 10, 11 & 12 BLK 128 MB 018/082
SANTA CARMELITA AT VALE LA QUINTA NO.14;
APN 773-072-019
WHEREAS, said Planning Commission of the City of La Quinta,
California, did, on the 27' day of September, 2011, certify the environmental
determination and approve Village Use Permit 2008-042, subject to conditions,
particularly Condition No. 4, requiring that a Development Agreement be prepared
for the project; and,
WHEREAS, at said Public Hearing of November 8, 2011, upon hearing
and considering all testimony and arguments of all interested persons desiring to be
heard, the Planning Commission did make the following mandatory findings to
justify a recommendation of approval for said Development Agreement:
1. The proposed Development Agreement is consistent with the La Quinta
General Plan and Municipal Code, based on approval of Village Use Permit
2008-042, and the findings made thereto under Planning Commission
Resolution 201 1-015. Village Use Permit 2008-042 will not be developed in
any manner inconsistent with the General Plan land use designation of
Village Commercial and other current City standards when considering the
conditions as imposed.
4
Planning Commission Resolution 2011-
Development Agreement 2011-022
November 8, 2011
2. The proposed Development Agreement is compatible with the uses and
regulations as stipulated for the Village Commercial land use and zoning
districts, as it ensures that parking improvements will be installed,
maintained, and operated in a manner consistent with alternative parking
solutions as permitted under the Village Commercial zoning.
3. The proposed Development Agreement is in conformity with the public
necessity, convenience, general welfare and good land use practices in that
the Development Agreement will allow for the development of a veterinary
office similar to other uses in the area. The Development Agreement sets
forth operational standards which will make the on -site parking available to
the general public when not in use, and requires the payment of fees to the
City for 13 deficient parking stalls, which will be used ultimately to provide
general public parking in the Village.
4. The proposed Development Agreement will not be detrimental to the public
health, safety and general welfare. The adjacent property is zoned for Village
Commercial Development and most of the surrounding properties are zoned
for a variety of land uses including residential and recreational uses.
Development of a veterinary office in proximity to residential and recreational
uses in the area will not significantly impact quality of life for area residents.
5. The proposed Development Agreement will not affect the orderly
development of property or the preservation of property values. Development
of the subject site, pursuant to the approval under Village Use Permit 2008-
042 and this Development Agreement, will enhance property values and
stimulate further growth as planned for in the Village at La Quinta.
6. The proposed Development Agreement will have a positive fiscal impact on
the City, in that implementation of the Development Agreement will produce
revenues for parking development programs in the Village at La Quinta, as
well as promote tax revenues from future users and clients of the approved
project in the Village at La Quinta.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of
the City of La Quinta, California, as follows:
1. That the above recitations are true and constitute the findings of the
Planning Commission in this case;
2. That it does hereby recommend to the La Quinta City Council approval of
5
Planning Commission Resolution 2011-
Development Agreement 2011-022
November 8, 2011
Development Agreement 201 1-022 for the reasons set forth in this
Resolution.
PASSED, APPROVED, and ADOPTED at a regular meeting of the City
of La Quinta Planning Commission, held on this the 81h day of November, 2011, by
the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ED ALDERSON, Chairman
City of La Quinta, California
ATTEST:
LES JOHNSON, Planning Director
City of La Quinta, California
11
ATTACHMENT # 2
PLANNING COMMISSION
STAFF REPORT
DATE: SEPTEMBER 27, 2011
CASE NO.: VILLAGE USE PERMIT 2008-042
APPLICANT: DR. KATHRYN CARLSON, VILLAGE PARK ANIMAL HOSPITAL
REQUEST: CONSIDERATION OF A VILLAGE USE PERMIT TO CONSTRUCT
AN 8,752 SQUARE FOOT VETERINARY OFFICE
LOCATION: NORTHEAST CORNER OF EISENHOWER DRIVE AND AVENIDA
MONTEZUMA; 51230 EISENHOWER DRIVE
GENERAL PLAN/
ZONING
DESIGNATIONS: VC, VILLAGE COMMERCIAL
ENVIRONMENTAL
DETERMINATION: THE PLANNING DEPARTMENT HAS DETERMINED THAT THIS
APPLICATION IS CATEGORICALLY EXEMPT FROM FURTHER
ENVIRONMENTAL REVIEW PURSUANT TO THE PROVISIONS
OF SECTION 15332 (CLASS 32) OF THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA).
BACKGROUND:
The Village Park Animal Hospital, currently located on the southeast side of the La
Quinta Community Park, has outgrown its current space and will soon be nearing
the end of its lease agreement. The applicant currently owns the AquaPaws
building located at 51230 Eisenhower Drive, on the northwest side of the park, and
is seeking to demolish it in order to construct a new building (Attachment 1). The
applicant is not aware of any plans for the use of the existing building after it is
vacated, as it is currently listed for sale. The existing animal hospital was approved
by the Planning Commission on April 14, 1998, under Conditional Use Permit 98-
039.
PROPOSAL:
The applicant is proposing to construct an 8,752 square foot, 31 foot high, two-
story animal hospital with Mission -Contemporary styled architecture on a 16,205
square foot parcel located on the northwest side of the park (Attachments 2 and 3).
The site has an existing building constructed in 1980 which houses the AquaPaws
ZOA 10-103 Planning Commission Staff Report 6/14/11
P:\Reports - PC\201 1\9-27-1 1\VUP 08-042 Village Animal Hospital\Stf Rpt VUP 08-042.doc
dog grooming business and the Paws and Reflect pet boutique. These businesses
will be relocated and the building will be demolished in order to construct the
proposed new veterinary office.
The proposed new animal hospital has a main entrance oriented northeast towards
both the parking lot and Avenida Martinez, with pedestrian access from all
surrounding streets. The building will be situated three feet from the property line
adjacent to Eisenhower Drive, five feet from the property line adjacent to Avenida
Montezuma, and nine feet from the property line along Avenida Martinez. The new
building will contain all of the necessary components of an animal hospital, including
a sound -proof boarding facility, diagnostic equipment, a .veterinary pharmacy,
grooming services, and a pet rehabilitation center.
Due to the angled orientation of the property line at the corner of Eisenhower Drive
and Avenida Montezuma, the applicant has submitted a concurrent request for a
right-of-way vacation of 535 square feet, which would enlarge a small portion of the
existing property. In addition, the applicant is unable to accommodate the required
on -site parking for a veterinary office and has concurrently applied for a
Development Agreement in order to provide in -lieu compensation for a parking
shortage of 13 spaces.
Site Design
Building Location and Orientation
The building is located on the northwest side of the La Quinta Community Park,
bounded on three sides by city streets, with the parking lot situated on the
northeast side of the building (Attachment 2). The main entrance to the building
will face northeast towards the parking lot with a side portico facing Avenida
Martinez. Secondary entrances to the building are located on the southeast side,
including an exterior stairwell primarily used as a fire exit leading to the second
story and a first -floor side door for quarantined pets. A portion of the outer corner
of the building at the corner of Eisenhower and Montezuma will have decorative
wrought iron fencing for the use of a narrow dog walk for pets.
Vehicular Circulation and Parking
Vehicles will enter the parking lot for the site via either Avenida Montezuma or
Avenida Martinez (Attachment 3, Page 1). Each street will have access to a one-
way driving aisle passing through the parking lot and exiting on the opposite side.
The project requires 29 parking spaces under the parking ordinance, but provides
14 on -site parking spaces and one golf -cart parking space. Although the project
has a shortage of 13 parking spaces under the code, alternative parking
arrangements are permitted in the Village Commercial zoning district, off -site
VUP 08-042 Planning Commission Staff Report 9/27/11 Page 2 of 7
P:\Reports - PC\201 1 \9-27-1 1 \VUP 08-042 Village Animal Hospital\Stf Rpt VUP 08-042.doc
parking is available, and the terms of a special parking arrangement are currently
being drafted. A Development Agreement addressing the parking arrangement for
the veterinary office will be reviewed by the Planning Commission and approved by
the City Council, and will not affect the design of the site plan as proposed.
Pedestrian Access and Circulation
The proposed animal hospital will have sidewalks placed adjacent to the street on
all three sides of the building with crosswalk access to the park and the cove
neighborhood across Eisenhower Drive (Attachment 3, Page 1). ADA parking will
be located across from the front entrance with a corresponding path of travel.
Sidewalks at the front entry and all cross -walks intersecting the proposed parking
lot driveways will be paved with decorative brick pavers. Existing sidewalks along
Eisenhower Drive will remain as -is.
Architecture
The applicant is proposing to construct an 8,752 square foot, 31 foot high, two-
story structure (Attachment 3, Pages 4-7). The white stucco building has been
designed with a combination of traditional and Mission -Contemporary style
architectural elements. Building materials will include a traditional three -tone clay
tile roof supported by treated and stained wooden beams, textured glass blocks,
and decorative wrought -iron fencing and railings (Attachment 4). The balcony at
the northeastern corner of the building will feature a decorative metal screening
material patterned with a silhouette of the surrounding mountains underneath a
stained and treated wooden trellis. All windows on the building will consist of
insulated and tinted glass with black aluminum framing. Most windows on the
building will be covered by a tiled roof awning or otherwise located underneath
building eaves to reduce solar exposure. Glass blocks will also be incorporated into
the building architecture, primarily to permit light into the kennel areas while
providing insulation for sound.
The building incorporates tiered massing to reduce the visual impact from being
situated close the adjacent streets, with the second story generally set a few feet
further back from the first story. Massing is further broken up by the addition of
the balcony, the covered entryway, an exterior stairwell on the southeastern
elevation, reveals (stucco "pop -outs" and crevasses), and a narrow roofline above a
portion of the first story adjacent to Eisenhower Drive. The second story is topped
with three -tone clay -tile hip roofing on the southwest half of the building and a
parapet along the northeast portion. Mechanical equipment will be fully screened
from view within a 5 foot 7 inch deep utility recess on the roof.
A photograph of the materials board is attached for your reference as Attachment
4; the board will also be available for review at the time of the public hearing.
VUP 08-042 Planning Commission Staff Report 9/27/11 Page 3 of 7
PAReports - PC\2011\9-27-11\VUP 08-042 Village Animal Hospital\Stf Rpt VUP 08-042.doc
Landscaping
The applicant is proposing a simple desert landscaping design that enhances the
existing streetscape with water -efficient shrubs and decorative boulders
(Attachment 3, last page [L-111. The existing palm trees that ring the park and a
portion of landscaping already in place along Eisenhower will remain. A portion of
the building facade oriented towards the parking lot will contain a large grid trellis
planted with Bougainvillea. Synthetic turf is proposed within the dog walk area
behind the fencing at the corner of Eisenhower Drive and Avenida Montezuma.
Proposed live oak trees and fruitless olive trees will provide shading within the
parking area and compliment the existing palm trees. A small conceptual re-
circulating water fountain is identified at the building entrance underneath the entry
foyer, but is currently being reconsidered for removal or redesign by the applicant.
Lighting
The applicant has provided a conceptual lighting plan for the proposed parking area
consisting of three, 20 foot high, black "shoe -box" type lighting fixtures with
shielding containing metal halide bulbs (Attachment 3, second to last page). No
parking lot or security lighting fixtures are proposed on the building.
Sustainability
Although the applicant is not proposing any specific elements of environmental
sustainability or energy efficiency, the building has been designed mindful of solar
exposure and water usage and will comply with the current energy code, Title 24.
All window glazing will be insulated and incorporate solar tinting. The proposed
landscaping plan is water -efficient and the conceptual water feature at the entrance
Will utilize only a few gallons of re -circulating water. Even with the water feature
included in the water use calculations, the project is expected to be well below the
annual water allowance.
ANALYSIS -
The proposed animal hospital is consistent with the style of architecture in the
Village District, complies with the Village Design Guidelines and, with the exception
of parking, meets all of the development code provisions. As parking variations are
permitted in the Village Commercial zoning district, staff has negotiated an in -lieu
fee alternative through a Development Agreement. This item will be brought forward
at a later date together with the proposed 535 square foot Right -of -Way Vacation to
accommodate the corner of the building. Staff has found the overall style and layout
of the proposed project, including the landscaping design, the level and quality of
lighting within the parking area, pedestrian connectivity, architectural design,
building scale and massing, and project layout to be acceptable and amenable to the
VUP 08-042 Planning Commission Staff Report 9/27/11 Page 4 of 7
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character of the Village area.
The Mission -Contemporary style building is pedestrian oriented and incorporates a
variety of architectural elements, including graduated heights, two balconies,
recessed and extended building sections, and staggered setbacks. The project is
similar in style and orientation to recent Village projects such as the La Quinta
Museum, and includes architectural elements reflective of the current Village Animal
Hospital, one of the original Village buildings whose architecture influenced the
current Village Design Guidelines. As the project is well designed and complies with
all of the necessary code provisions, staff believes the proposed veterinary office
will make a positive contribution to the Village.
ARCHITECTURE AND LANDSCAPE REVIEW COMMITTEE REVIEW
The Architecture and Landscape Review Committee (ALRC) reviewed this
application at its December 2, 2009 meeting (Attachment 5). At that meeting,
Committee Members Thorns and Rooker respectively moved and seconded to adopt
Minute Motion 2009-008 recommending approval of Village Use Permit 2008-042
by a 2-0 vote.
While the Committee did not move to recommend specific changes to the project,
the following comments were made by the Committee for the applicant's and the
Planning Commission's consideration, recognizing that these were not required
conditions, but rather recommended suggestions:
• The use of a darker color for the building, such as chocolate brown, to
minimize the mass of the building.
• Additional palm trees be added along Eisenhower Drive to help break up the
massiveness of the building.
• The design and placement of the proposed water feature be adjusted, per the
applicant's comments, or eliminated.
• The size of the trees in the parking lot should be increased to 36- from 24-
inch (minimum diameter calipers) boxes in the landscaping area.
• Add additional dog relief area into the landscaping someplace for waiting
animal patients.
• Add eyebrows to the set of windows on the "sheer wall" side of the building
adjacent to the parking lot.
• A smooth finish for the building would be preferred, rather than sand finish.
VUP 08-042 Planning Commission Staff Report 9/27/11 Page 5 of 7
P:\Reports - PC\201 1\9-27-1 1\VUP 08-042 Village Animal Hospital\Stf Rpt VUP 08-042.doc
• A single -tone rooftop would be preferred.
• Simplify the landscaping palette by reducing the number of different types of
plants. Replace the fruitless olives with Palo Verde.
• Remove the planter in the sidewalk area on the eastern side at the entry.
• The same type flooring should be used throughout for the entry area and the
sidewalk, either pavers or concrete.
• Cascading plants should be placed on the balconies.
The minutes of the December 2, 2009 ALRC meeting and action are provided as
Attachment 5.
CEQA:
The proposed Village Use Permit has been determined to be exempt from the
California Environmental Quality Act (CEQA) under Section 15332i as the proposed
project will replace an existing building constructed in 1980 on an urban site less
than five acres in size, and will have no impact on the environment. In addition, the
pending Right -Of -Way Vacation and Development Agreement for parking have also
been determined to be exempt from the California Environmental Quality Act.
PUBLIC NOTICE:
This request was published in the Desert Sun newspaper on September 16, 2011.
To date, no comments or letters have been received. Any comments or
correspondence received following the completion of this staff report will be
presented to the Planning Commission at the hearing.
STATEMENT OF MANDATORY FINDINGS:
Findings to recommend approval of the proposed Village Use Permit can be made
and are contained in the attached Resolution.
RECOMMENDATION:
1. Adopt a Resolution approving proposed Village Use Permit 08-042 with the
attached conditions of approval.
VUP 08-042 Planning Commission Staff Report 9/27/11 Page 6 of 7
PAReports - PC\201 1\9-27-1 1\VUP 08-042 Village Animal Hospital\Stf Rpt VUP 08-042.doc
Prepared by:
Andrew J. Mogensen, AICP
Principal Planner
1. Location Aerial with Site Photos
2. Precise Grading Plan with Inset Map
3. Proposed Village Animal Hospital Plan Set
4. Materials Board Photograph (original will be provided at the hearing)
5. Minutes of the December 2, 2009 ALRC Hearing
VUP 08-042 Planning Commission Staff Report 9/27/11 Page 7 of. 7
P:\Reports - PC\201 1\9-27-1 1\VUP 08-042 Village Animal Hospital\Stf Rpt VUP 08-042.doc
ATTACHMENT # 3
Planning Commission Minutes
September 27, 2011
General discussion followed regarding the City's H.E.A.L. and Green
Programs.
Commissioner Wilkinson said he didn't really hear anything about how
this was going to help Walgreens' business or any substantial statistics
about crime. He provided anecdotal evidence of Blue Laws and pointed
out how he didn't hear any evidence to make him want to rescind the
condition.
Chairman Alderson commented on Walgreens' presentation and said the
community currently is in a slump, and the promotion of business is
pretty important to this community and businesses. He said there are no
schools in the area so they are not an issue. He commented on the pros
and cons and his support of the rescinding of the condition.
General discussion followed on:
• Any exterior display, or signage, involving alcoholic beverages.
• The inclusion of a condition about the amount of square footage to
be allowed for the sale and display of alcoholic beverages.
There being no further discussion, it was moved and seconded by
Commissioners Weber/Barrows to approve Resolution 2011-014
approving Site Development Permit 2002-753, Amendment 1, subject to
the conditions submitted and the additional conditions:
6. The sale of alcoholic beverages at this site is limited to beer and wine.
No hard liquor sales shall occur at this site.
7. The sale of single -serve alcoholic beverages is prohibited.
8. The sale display area of alcoholic beverages shall not exceed an area
greater than two percent (2%) of the store floor area.
AYES: Commissioners Barrows, Weber, and Chairman Alderson. NOES:
Commissioners Wilkinson and Wright. ABSENT: None. ABSTAIN: None.
B. Village Use Permit 2008-042; a request by Dr. Kathryn Carlson, Village
Park Animal Hospital, for consideration of a Village Use Permit to
construct an 8,752 square foot veterinary office, located at 51-230
Eisenhower Drive.
Principal Planner Andrew Mogensen presented the staff report, a copy of
which is on file in the Planning Department. He commented on two letters
Planning Commission Minutes
September 27, 2011
and a memorandum recomr
Approval, which were distri
Staff then recommended a
conditions.
Chairman Alderson asked if
Commissioner Barrows asked
6a; regarding the inclusion of
Works for response.
Principal Engineer Wimmer e
currently address SWPPPs;
Permit, 2) La Quinta's Municil
Code. All three of these
Pollution Prevention Plan (SWI
Statewide General Construct
projects that are one acre or rr
under those two permits, an
under the 2010 California
language that may require the
acre. While we don't have a d
find out how this is being inter
SWPPP may be required under
is less than one acre.
Commissioner Barrows was c
the applicant was supposed to
define what is expected of the
g some changes to the Conditions of
to the Commissioners at the meeting.
d with the inclusion of the changed
were any questions of staff.
i for clarification on condition number
word MAY. Staff deferred to Public
ained there are three documents that
California State General Construction
NPDES Permit, and 3) Uniform Building
,uments speak about the Stormwater
). The Municipal NPDES Permit and the
Permit only require an SWPPP for
i. This project is less than one acre, and
✓PPP would not be required. However
an Building Standards Code, there is
VPPP for projects that are less than one
-iitive answer, staff is researching this to
ud. We are exploring this item, but the
is building code even though this project
tried that it was not really clear what
She asked if there was a way to better
Principal Engineer Wimmer said staff would be amenable to having some
clarifying language put in there.
Commissioner Weber had a qu stion on condition 23.A.2. that had been
deleted. He asked if this was no longer a requirement for the applicant
since it was noted to have bee deleted due to an oversight.
Principal Engineer Wimmer expl fined there is an application that is not yet
going to be heard. The two ther components to this total application
include a right-of-way vaca ion request and the approval of a
development agreement. In th right-of-way vacation request, the issue
Planning Commission Minutes
September 27, 2011
Commissioner Barrows described is what is being looked at. This
particular area has been slated for a signal, but it is also being looked at
potentially for a roundabout. What would be unfortunate is that the
recommendation were made to vacate the right-of-way which is going to
later be needed for either the traffic signal or the roundabout. Since this
item was going tonight a condition was crafted that would basically defer
this particular issue until the right-of-way vacation issues were sorted
out.
General discussion followed on:
• What area was, or could be, affected by the right-of-way or
street vacation.
• The size of the building versus the land available.
• The element of risk.
• "In Lieu Of" fee for 13 parking stalls (50% available/50% being
accommodated).
• Processing procedures for this type of application.
• The possible location of a traffic circle.
• Trip generation not ,requiring a traffic study.
Chairman Alderson complimented the ALRC on its review of this
application and directed the Commissioners to page 5 of 7 in the
architectural review. He suggested item number 4 (the size of the trees
in the parking lot should increase to 36 from 24 inch), number 5, (add
additional dog relief area in the landscape for waiting animal patients),
number 7 (the smooth finish for the building would be preferred rather
than a sand finish), number 10 (cascading plants should be placed on the
balcony) and number 12 (remove the planter in the sidewalk area on the
eastern side of the entry), were worthy of being added as conditions.
Commissioner Wright generally agreed with the ALRC comments, but not
with the one suggesting the use of a darker color for the building.
Commissioner Barrows said she agreed with what had been included in
number 9 (tree replacement) but would comment on it later in the
meeting.
There being no further questions of staff, Chairman Alderson opened the
public hearing portion of the meeting and asked if the applicant would like
to speak.
-10-
Planning Commission Minutes
September 27, 2011
Mr. Brian DeCoster, 80-900 Calle Conchita, introduced himself as the
project manager, and commented on the size of the building and the area
needed to accommodate the applicant's business. He then addressed
item 25F of the memorandum, referring to drive aisles (16 and 20 feet).
He said there had been discussion back and forth on this item, but they
were fairly limited on how much they could adjust the parking lot. He
said they would like to keep the parking lot as it was shown since they
spent a lot of time with a civil engineer and the Engineering Department,
trying to make this happen. He added they were willing to do what it
took, but if there was a better way of doing this to get both your
requirements and our building built then we're certainly all for it. Mr.
DeCoster then referenced ALRC suggested condition number 10 (removal
of planter) and explained why that planter was needed. He also noted
that they have included greenery in quite a few places to try to reduce
graffiti. He then said he would be happy to answer any additional
Commissioner's questions.
General discussion followed which included an explanation of what was
being requested regarding item 25F of the memorandum to the
Commission; with staff commenting that they would be working with the
applicant and their engineer to achieve,those dimensions.
Mr. DeCoster asked for clarification on recommendation number 9 which
states: "Simplify the landscaping palette by reducing the number of
different types of plants. Replace the fruitless olives with Palo Verde."
He wanted to know if the Commission was considering the whole item,
or just the portion regarding the tree replacement.
Commissioner Barrows said she did not feel it was necessary to include
the first sentence, but added that more desert landscaping, particularly
more local species, should be included; which applied to the second
sentence of that recommendation.
Mr. DeCoster said they had no opposition to including desert tree species.
Commissioner Barrows asked the applicant for an explanation of the
comments, noted in the minutes from the ALRC meeting, about the
cascading plants possibly affecting the artistic design of the decorative
screens.
Mr. DeCoster said it would be difficult to maintain plants since that area
is completely screened to prevent a dog from jumping out. It would not
-11-
Planning Commission Minutes
September 27, 2011
be impossible to maintain the plants, but it would be very difficult in that
particular area.
General discussion followed regarding:
• Where the screens were located.
• The type of design utilized on the screens.
• Inclusion of a railing.
Dr. Kathryn Carlson, 80-900 Calle Conchita, introduced herself and spoke
on her mountainscape design. She said she has a garden area for
boarding animals at her current building and wanted a free place for dogs
to be able to go to in her new building. She wanted the same feel, but
had square footage constraints with the new building. She designed this
with the feel of the Art in Public Places pieces that are seen throughout
La Quinta. She said she has always loved La Quinta for the artwork and
how it has been promoted. She thought it would be nice to include that
type of artwork. She added, as you are driving down Eisenhower and you
get to the stop sign at Calle Tampico you will see a beautiful building;
even without the cascading plants because of the design, which is similar
to the City's bridges.
General discussion followed on:
• The inclusion of plants on some of the balconies.
a Clarification of ALRC conditions to be added.
• The addition/placement of a bicycle rack.
General discussion of the water feature then followed on:
• It would be more of an art piece than water feature.
• The general design would include glass block since it would provide
light to the room behind it.
• Would not employ excessive water usage.
• Would be a drip -type fountain with a floor drain.
Dr. Carlson commented that it would be basically like a dripping water
fountain from the wall. If that could not be done, logistically, it would be
made of artistic glass block to represent a water feature. She then
described her vision of the feature utilizing various types of glass block.
-12-
Planning Commission Minutes
September 27, 2011
Dr. Carlson also commented on the negative letter submitted by Mr.
Michael Fisher, and explained her concern about the park being for
families as well as her support and use of the park over the years. She
concluded by saying she tried to support La Quinta as much as possible
and also encouraged her clients to use the trails as well. She then
offered to answer any additional questions the Commissioners might
have.
Chairman Alderson asked if the Commissioners had any further questions.
Having none, Chairman Alderson asked if there was any other public
comment.
Ms. Kay Wolff, 77227 Calle Ensenada, introduced herself and said she
thought that it was wonderful Dr. Carlson was trying to keep her animal
hospital in La Quinta and in the Cove Area. She said it was an asset in
many ways, not only for the services provided, but also for the
extracurricular activities the doctor sponsored in the park. She then
commented on the building that was going to be vacated, its historicity,
and her friend who was raised in that building. She did not want to see it
demolished or desecrated in a way that would remove it from being a
historical landmark for La Quinta. She concluded with her support of the
application to build the new animal hospital.
General discussion followed on the historical background and status of
thecurrent veterinary hospital building. The discussion ended with the
Planning Director clarifying that any significant changes to the exterior of
the building would make it subject to environmental review for CEQA and
would have to be reviewed by the Historic Preservation Commission
which reports directly to the Council. He also stated that there is some
protection for a historical property.
Chairman Alderson asked if there was any further public comment.
Ms. Mary Cornell, 81-107 Tranquility Drive, Indio, introduced herself and
spoke on behalf of Dr. Carlson and the contribution that she has made to
the community, over the years. She added that what Dr. Carlson did, at
a time when almost every veterinary practice had been bought out by
corporations, was to continue to provide compassionate, individual care
for her patients and she was here to provide support for Dr. Carlson's
request.
-13-
Planning Commission Minutes
September 27, 2011
Ms. Cornell added that she hoped that the Commission would see to it
that this went forward because it was not only a contribution to the
members of La Quinta, but all of the surrounding communities that come
to Dr. Carlson for care not available anyplace else.
Chairman Alderson asked if there were any more questions of the
applicant or further public comment. There being none he closed the
public hearing portion of the meeting and opened the matter for
Commission discussion.
General discussion followed on:
• Businesses making the investment to stay in La Quinta.
• How it was good to see projects in that area.
• Coverage of lot area.
• Good design.
• Clarification of item 25.F - 16 to 20 feet.
There being no further discussion, it was moved and seconded by
Commissioners Barrows/Weber to approve Resolution 201 1-015,
approving Village Use Permit 2008-042, as submitted with the addition of
conditions suggested at the ALRC Meeting of December 2, 2009 as
follows:
• A smooth finish for the building shall be used rather than sand
finish (noted in Final Conditions as #56).
• The size of the trees in the parking lot should be increased to 36-
from 24-inch (minimum diameter calipers) boxes in the landscaping
area (noted in Final Conditions as #66)
• Add additional dog relief area into the landscaping someplace for
waiting animal patients (noted in Final Conditions as #67).
• The landscaping plan shall replace Fruitless Olive Trees with Palo
Verde trees (noted in Final Conditions as #68).
In addition, the Condition of Approval No. 6.A. shall be revised, for
clarification, to read:
• For construction activities including clearing, grading or excavation
of land, the Permittee may be required to submit a Storm Water
-14-
Planning Commission Minutes
September 27, 2011
Pollution Prevention Plan ("SWPPP") to the State Water Resources
Control Board, if required by the Building Official.
Unanimously approved.
VI. BUSINESS ITEMS: None.
VII. CORRESPONDENCE AND WRITTEN MATERIAL:
A. Flyer about the Coachella Valley Water District Water Awareness Tour
scheduled for October 7, 2011.
VIII. COMMISSIONER ITEMS:
A. Report on City Council Meetings of August 2, and September 20,
2011; including comments on the approval of the City's Housing
Element and the upcoming Joint Meeting and Commissioner
Appointments meeting.
B. Commissioner Wright is scheduled to attend the October 4, 2011,
City Council meeting.
IX: DIRECTOR ITEMS:
A. Discussion items for the Joint Council meeting will be agendized on next
Planning Commission Meeting.
X. ADJOURNMENT:
There being no further business, it was moved and seconded by
Commissioners Wilkinson/Barrows to adjourn this regular meeting of the
Planning Commission to the next meeting to be held on October 11, 2011.
This meeting was adjourned at 9:06 p.m. on September 27, 2011.
Respectfully submitted,
Carolyn Walker, Executive Secretary
City of La Quinta, California
-15-
ATTACHMENT # 4
RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quints
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
(Exempt from Recording Fee per Gov't Code § 6103)
DEVELOPMENT AGREEMENT
BY AND AMONG
THE
CITY OF LA QUINTA ("CITY")
AND
VPAH, LLC..
A CALIFORNIA LIMITED LIABILITY COMPANY ("DEVELOPER")
2465,015610-0125
2303172.6 al 1,04/11
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of the _ day of
2011 ("Reference Date"), by and among the CITY OF LA QUINTA, a
California municipal corporation and charter city (the "City") and VPAH, LLC., a California
limited liability company (the "Developer"), with reference to the following:
RECITALS
A. Government Code Sections 65864-65869.5 (the "Development Agreement Act")
authorize the City to enter into a binding development agreement for the development of real
property within its jurisdiction with persons having legal or equitable interest in such real
property.
B. Pursuant to Section 65865 of the Government Code, the City has adopted its
Development Agreement Ordinance (La Quinta Municipal Code Section 9.250.030) establishing
procedures and requirements for such development agreements ("Development Agreement
Ordinance").
C. Developer owns the 0.35 acre parcel of real property ("Site") located at the
northeast corner of Eisenhower Drive and Avenida Montezuma, in the City of La Quinta, County
of Riverside, State of California, which Site is legally described in Exhibit "A" attached hereto,
and which is the subject of this Agreement.
D. Prior to the execution of this Agreement, the City approved Village Use Permit
No. 2008-042 (the "VUP"), subject to conditions of approval. The VUP provides planning and
development criteria for a proposed project on the Site, which project is commonly known as
Village Park Animal Hospital (the "Project"). The Project will consist of the development of the
Site with an 8,752 square foot, 31 foot high, two-story animal hospital with Mission -
Contemporary styled architecture. The project site has an existing building built in 1980 which
will be demolished to construct the Project. The VUP is also known as the "Development Plan".
E. The City's Municipal Code requires that a total of 29 parking stalls be provided to
service the Project. The Site is situated such that only 16 of the 29 required parking stalls are
available for the Project. Of these, 15 on -site parking stalls are provided (including one ADA-
accessible space and one golf -cart space) and credit is given for one adjacent on -street parking
space on Avenida Martinez for a total of 16 stalls provided. To fulfill the remaining parking
requirements for the Project, the VUP was conditioned on the Developer entering a development
agreement with the City to require the Developer to pay a parking fee in exchange for crediting
13 parking stalls towards the Project. This fee is to be used for future parking improvements in
the Village Commercial zoning district. Pursuant to Section 9.65.030 of the La Quinta
Municipal Code, alternative parking arrangements are permitted in the Village Commercial
zoning district.
F. Consistent with Section 9.250.030 of the La Quinta Municipal Code, the parties
desire to enter into a binding agreement for purposes of (i) setting forth a per -parking stalls
payment for the Developer's payment to the City of certain fees for use in connection with future
2465,015610-0125
2303172.6 a LOV11
parking improvements in the Village Commercial zoning district that the parties agree are
designed to compensate the City for (A) crediting 13 parking stalls towards fulfilling the
Project's parking obligation; and (B) the potential added wear and tear on the municipal
infrastructure which will result from the Development Plan; (ii) requiring the Developer and its
successors -in -interest to provide public parking on the Site; and (iii) granting Developer a vested
right to develop the Site according to the Development Plan.
F. Among other purposes, this Agreement is intended to be, and shall be construed
as, a development agreement within the meaning of the Development Agreement Act. This
Agreement will eliminate uncertainty in planning for and secure the orderly development of the
Project, ensure a desirable and functional community environment, provide effective and
efficient development of public facilities, infrastructure, and services appropriate for the
development of the Project, and assure attainment of the maximum effective utilization of
resources within the City, by achieving the goals and purposes of the Development Agreement
Act. In exchange for these benefits to City, Developer desires to receive the assurance that it
may proceed with development of the Project in accordance with the terms and conditions of this
Agreement and the Development Plan, all as more particularly set forth herein.
G. The City Council has determined that the Project and this Agreement are
consistent with the City's General Plan, including the goals and objectives thereof.
H. All actions taken by 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.) ("CEQA"), and all other requirements for notice, public hearings,
findings, votes and other procedural matters.
I. On the City Council adopted its Ordinance No.
approving this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
1.0 GENERAL.
1.1 Term.
The term of this Agreement (the "Term") shall commence on the Effective Date hereof.
and shall continue for thirty (30) years thereafter, unless said term is otherwise terminated,
modified, or extended by circumstances set forth in this Agreement or by mutual consent of the
parties hereto after the satisfaction of all applicable public hearing and related procedural
requirements. The Agreement will be terminated if the Developer no longer uses the Site for the
Project or is unable to obtain permanent financing for the Project, provided that in either instance
Developer must agree to rescind the VUP.
2465,015610-0125
2303172 6 a11,04/11 -3-
1.2 Effective Date.
This Agreement shall be effective, and the obligations of the parties hereunder shall be
effective, as of which is the date that Ordinance No. takes
effect ("Effective Date").
1.3 Amendment or Cancellation.
Except as expressly stated to the contrary herein, this Agreement may be amended or
canceled in whole or in part only by mutual consent of the parties and in the manner provided for
in Government Code Section 65867-65868 and the City's Development Agreement Ordinance.
1.4 Termination.
Unless terminated earlier, pursuant to the terms hereof, this Agreement shall
automatically terminate and be of no further effect upon the expiration of the Term of this
Agreement. Termination of this Agreement, for any reason, shall not, by itself, affect any right
or duty arising from entitlements or approvals set forth under the Development Plan, as defined
in Section 2.1, below.
2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF
THE PROJECT.
2.1 Right to Develop.
Subject to the terms, conditions, and covenants of this Agreement, Developer's right to
develop the Project in accordance with the Development Plan (and subject to the conditions of
approval thereof (the "Conditions of Approval") which, among other conditions of approval
associated with future approvals and permits issued by the City, include but are not limited to the
conditions of approval set forth in Exhibit `B" attached hereto) shall be deemed vested upon
execution of this Agreement, which vesting shall expire upon the earlier of the following
occurrences: (a) termination of this Agreement; or (b) an uncured material default by Developer
of this Agreement. 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 Developer under.this Agreement. Notwithstanding anything in this Agreement to
the contrary, 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
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
2465/015610-0125
2303172.6 all/04/1I -4-
Agreement (collectively, "New Laws"), except such New Laws which would prevent or
materially impair Developer's ability to develop the Project in accordance with the Development
Plan, unless such New Laws are (A) adopted by the City on a City wide -basis and applied to the
Site in a non-discriminatory manner, (B) required by a non -City entity to be adopted by or
applied by the City (or, if adoption is optional, the failure to adopt or apply such non -City law or
regulation would cause the City to sustain a loss of funds or loss of access to funding or other
resources), or (C) New Laws the City reserves the right to apply under this Agreement,
including, but not limited to, Sections 2.2 and 3.3.4;
(iii) all subsequent development approvals and the conditions of approval
associated therewith, including but not limited to any further site development permits, tract or
parcel 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 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.
2.2 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:
2.2.1 Building, electrical, mechanical, fire and similar building codes based
upon uniform codes adopted in, or incorporated by reference into, the La Quinta
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.
2.2.2 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 La Quinta Municipal Code, solely to the
extent applicable to all development projects in the City.
2.2.3 This Agreement shall not prevent the City from establishing any new
City fees on a City-wide basis and applied to Site in a non-discriminatory manner,
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.
2465,015610-0125 -5-
23031716 a11/04/11
2.3 . Permitted Density. Height and Use. Limitations.
The permitted. uses, density and intensity of use, location of uses, maximum height and
size of proposed buildings, minimum setbacks, and other standards applicable, to the Project shall
be those set forth in the Development Plan and this Agreement, whichever is the strictest.
2.4' 'Credit of Parkin . Stalls.
talls
In exchange for the full performance of the Developer's Obligations described in
Section 3, the City shall credit the Developer with 13 parking stalls as permitted by the La
Quinta Municipal Code, which spaces shall be counted towards fulfilling the Project's parking
obligations.
3.0 DEVELOPER'S OBLIGATIONS.
3.1 Conditions of Approval.
The Developer shall comply with the Conditions of Approval attached hereto as Exhibit
"C" as well as all other conditions of approval that have been or may be imposed. Developer
acknowledges that additional, conditions of approval- beyond those set forth in Exhibit "C" may
be applicable to the Project if and as associated with•future Project approvals.
3.2 Restriction on the Site.
Prior to, and as a condition precedent of, the City's issuance of any building permit for
the Project, and immediately following payment of the fees detailed in Section 3.3.2, the
Developer shall submit to the City, obtain approval thereof, and record a deed restriction (the
"Restriction") against the Site which, in addition to the obligations set forth in the Conditions of
Approval, shall (i) require the Developer's payment of the fees as described in Section 3.3,
(ii)'acknowledge that such fees have been paid and that the parking obligation for the Project is
fulfilled by the credit of 13 parking spaces; and'(iii),provide for the general public's use of Site
parking stalls during times when the on -Site business is closed as provided by Section 3.5. The
Restriction shall be in a form and substance substantially similar to that of the Restriction
attached hereto as Exhibit "C".
3.3 Payments to City by. Developer.
3.3.1' General.
During the Term of this Agreement, Developer shall make the payments to the City
described in this Section 3.3. The payments under this Section 3.3 are not the exclusive
development impact fees for the Project, and nothing in, this Section 3.3 shall be construed as a
limitation on the right of the City to impose, levy, or assess the Site other development fees as
permitted by applicable law and this Agreement.
3.3.2 Developer's Payments of Up -Front Parking Fees.
Prior to, and as a condition precedent of, the issuance of any building permit for the Site,
Developer shall pay or cause to be paid to the City the sum of $1,183.53 per parking stall for
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each of the 13 parking stalls being credited towards fulfilling the Project's parking obligations.
The total amount of fees due under this provision prior to the issuance of any building permit for
the Site shall be $15,386. This fee shall be paid in two equal installments: (1) the first
installment shall be due at the time of issuance of the building permit by the City; and (2) the
second installment shall be due at the time of issuance of the certificate of occupancy by the
City.
3.3.3 Other Fees and Charges.
Nothing set forth in this Agreement is intended or shall be construed to limit or restrict
the City's authority to impose its existing, or any new or increased, fees, charges, levies, or
assessments for the development of the Site, or to impose or increase, subject to the required
procedure, any taxes applicable to the Site; provided nothing set forth herein is intended or shall
be construed to limit or restrict whatever right Developer might otherwise have to challenge any
fee, charge, levy, assessment, or tax imposed. Developer shall timely pay all applicable fees,
charges, levies, assessments, and special and general taxes validly imposed in accordance with
the Constitution and laws of the State of California, including without limitation school impact
fees in accordance with Government Code §§ 65995, et seq.
3.4 Dedications and Improvements.
Developer shall offer such dedications to the City or other applicable public agency, or
complete those public improvements in connection with the Project, as specified in the
Development Plan and Conditions of Approval.
3.5 Public Use of Site's Parkin Stalls.
talls.
The parking stalls located on the Site shall be available to the general public for use
between the hours of 6:00 p.m. and 2:00 a.m.; provided, however, that Developer (and/or its
permitted successors) may reserve five (5) designated spaces for use after 6:00 p.m. At the
request of Developer, the Planning Director may consider increasing the number of designated
spaces to equal up to 50% of the on -Site parking spaces if the Planning Director determines that
an increase in designated spaces is warranted. Any such approval must be in writing to be
effective. To effectuate the City's implementation of its rights under this section, Developer
agrees to execute the Parking Easement Agreement attached hereto as Exhibit "F". Developer
shall not erect or maintain entry gates, regulated access barriers or any other driveway barrier.
Except for signage identifying designated spaces, Developer shall not erect or place any signage
on the Site prohibiting public parking during times that the on -Site business is closed. The
parking lot on the Site shall be lighted in conformity with the La Quinta Municipal Code
between dusk and 11:00 p.m. every day of the week.
3.6 Indemnification.
(a) Developer agrees to and shall indemnify, hold harmless, and defend, the City and
its respective officers, officials, members, agents, employees, and representatives (collectively,
"the Indemnified Parties"), from liability or claims for death or personal injury and claims for
property damage which may arise from the acts, errors, and/or omissions of the Developer or its
2465M 1561"125 _
2303172,6 a 11104/11 -7
contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to
the Project and/or this Agreement, except to the extent that the liability or claims arise from the
City's gross negligence or willful misconduct. The foregoing indemnity applies to all deaths,
injuries, and damages, and claims therefor, suffered or alleged to have been suffered by reason of
the acts, errors, and/or omissions referred to in this paragraph, regardless of whether or not the
City prepared, supplied, or approved plans or specifications, or both, and regardless of whether
or not any insurance policies are applicable.
(b) Developer agrees to and shall indemnify, hold harmless, and defend, the
Indemnified Parties from any challenge to the validity of this Agreement, the Restriction, or the
Parking Easement Agreement; the Developer shall indemnify, hold harmless, pay all costs and
provide defense for the Indemnified Parities in said action or proceeding with counsel chosen by
the City and reasonably approved by the Developer.
(c) In the event the Indemnified Parties are made a party, to any action, lawsuit, or
other adversarial proceeding in any way involving claims specified in paragraphs (a) or (b)
above, Developer shall provide a defense to the Indemnified Parties, or at the Indemnified
Parties' option, reimburse, the Indemnified Parties their costs of defense, including reasonable
attorney's fees, incurred in defense of such claim. The Indemnified Parties shall have the right to
select legal counsel of their choice. In addition, Developer shall be obligated to promptly pay
any final judgment or portion thereof rendered against the Indemnified Parties. The City shall, at
no cost to the City, cooperate with the Developer in any such defense as Developer may
reasonably request.
4.0 CITY'S OBLIGATIONS & ACKNOWLEDGEMENTS.
4.1 Scope of Subsequent Review/Confirmation of Compliance Process.
Nothing set forth herein shall impair or interfere with the right of the City to require the
processing of building permits as required by law, pursuant to the applicable provisions of the La
Quinta Municipal Code and the provisions of City's Fire Codes and ordinances, Health and
Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes.
Prior to each request for a building permit, Developer shall provide City with a
Compliance Certificate ("Certificate"), in substantially the same form as that attached hereto as
Exhibit "D", which shall describe how all applicable Conditions of Approval have been fully
complied with. The Certificate shall be distributed to the relevant City departments in order to
check the representations made by Developer on the Certificate.
4.2 Project Approvals Independent.
All approvals required for the Project which may be or have been granted, and all land
use entitlements or approvals generally which have been issued or will be issued, by the City
with respect to the Project, constitute independent actions and approvals by the City. If any
provision of this Agreement or the application of any provision of this Agreement to a particular
situation is held by a court of competent jurisdiction to be invalid or unenforceable, or if this
Agreement terminates for any reason, then such invalidity, unenforceability or termination of this
Agreement or any part hereof shall not affect the validity or effectiveness of any such Project
approvals or other land use approvals and entitlements. In such cases, such approvals and
2465/015610-0125 p
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entitlements will remain in effect pursuant to their own terms, provisions, and the Conditions of
Approval. It is understood by the parties to this Agreement that, pursuant to existing law, if this
Agreement terminates or is held invalid or unenforceable as described above, such approvals and
entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the
term of such approvals and entitlements.
4.3 Review for Compliance.
The City shall review Developer's compliance with the terms of this Agreement at least
once during every twelve (12) month period following the Effective Date of this Agreement, in
accordance with the City's procedures and standards for such review set forth in the City's
Development Agreement Ordinance. During such periodic review by the City, the Developer,
upon written request from City, shall be required to demonstrate, and hereby agrees to furnish,
evidence of good faith compliance with the terms hereof. The failure of the City to conduct or
complete the annual review as provided herein or in accordance with the Development
Agreement Act shall not impact the validity of this Agreement. If, at the conclusion of the
annual review provided for herein, Developer has been found in compliance with this
Agreement, the City, through the City's Planning Director, shall, at Developer's written request,
issue a Certificate of Compliance to Developer stating that (1) this Agreement remains in full
force and effect and (2) Developer is in compliance with this Agreement. The Certificate of
Compliance shall be in recordable form, and shall contain information necessary to communicate
constructive record notice of the finding of compliance. Developer, at its option and sole cost,
may record the Certificate of Compliance.
4.4 Satisfaction of VUP Condition.
The City hereby acknowledges and agrees that full compliance with this Agreement,
among other things, will constitute Developer's satisfaction and compliance with those portions
of the conditions of approval for the VUP approved by the City which relate to Developer's
obligation to enter into a development agreement for the payment of parking fees and fulfillment
of parking obligations.
4.5 City Use of Parking Fee
The City hereby agrees that the parking fee paid by Developer will be dedicated for
future parking improvements in the Village Commercial zoning district.
5.0 DEFAULT; REMEDIES; DISPUTE RESOLUTION.
5.1 Notice of Default.
In the event of failure by either party hereto substantially to perform any material term or
provision of this Agreement, the non -defaulting party shall have those rights and remedies
provided herein, provided that such non -defaulting party has first provided to the defaulting party
a written notice of default in the manner required by Section 8.1 hereof identifying with
specificity the nature of the alleged default and the manner in which said default may
satisfactorily be cured. Without limiting the scope of what is considered "material," the parties
1465)015610-0125 9
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agree that Developer's failure to perform any of the obligations contained in Section 3.0 shall be
a material default.
5.2 Cure of Default.
Upon the receipt of the notice of default, the alleged defaulting party shall promptly
commence to cure, correct, or remedy the identified default at the earliest reasonable time after
receipt of the notice of default and shall complete the cure, correction or remedy of such default
not later than ten (10) days [or thirty (30) days for non -monetary defaults] after receipt of the
notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied
within ten (10) days [or thirty (30) days for non -monetary defaults], such party shall commence
to cure, correct, or remedy such default within such ten (10) day period [or thirty (30) day period
for non -monetary defaults], and shall continuously and diligently prosecute such cure, correction
or remedy to completion.
5.3 City Remedies.
In the event of an uncured default by Developer of the terms of this Agreement, the City,
at its option, may institute legal action in law or in equity to cure, correct, or remedy such
default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement. In
no event shall the City be entitled to consequential damages for any Developer default. For
purposes of this Agreement the term "consequential damages" shall include, but not be limited
to, potential loss of anticipated tax revenues from the Project or any portion thereof.
Furthermore, the City, in addition to, or as an alternative to, exercising the remedies set forth in
this Section 5.3, in the event of a material default by Developer, may give notice of its intent to
terminate or modify this Agreement pursuant to the City's Development Agreement Ordinance
and/or the Development Agreement Act, in which event the matter shall be scheduled for
consideration and review by the City Council in the manner set forth in the City's Development
Agreement Ordinance or the Development Agreement Act.
5.4 Developer's Exclusive Remedies.
The parties acknowledge that the City would not have entered into this Agreement if it
were to be liable in damages under, or with respect to, this Agreement or any of the matters
referred to herein including, but not limited to, the Development Plan, Conditions of Approvals,
the Existing Development Regulations or any future amendments or enactments thereto, or the
Project, except as provided in this Section. Accordingly, Developer covenants on behalf of itself
and its successors and assigns, not to sue the City or its respective officers, officials, members,
agents, employees, and representatives for damages or monetary relief (except for attorneys' fees
as provided for by Section 8.22) for any breach of this Agreement by the City or arising out of or
connected with any dispute, controversy, or issue between Developer and the City regarding this
Agreement or any of the matters referred to herein including but not limited to the application,
interpretation, or effect of this Agreement, the Development Plan, the Conditions of Approval,
the Existing Development Regulations or any future amendments or enactments thereto, or any
land use permits or approvals sought in connection with the development of the Project or any
component thereof, or use of a parcel or any portion thereof, the parties agreeing that declaratory
and injunctive relief, mandate, and specific performance shall be Developer's sole and exclusive
judicial remedies.
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6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.
6.1 Encumbrances on the Project Site.
This Agreement shall not prevent or limit the Developer from encumbering the Site or
any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and
leaseback arrangement, or any other form of conveyance in which the Site, or a portion thereof
or interest therein, is pledged as security, and contracted for in good faith and fair value
(a "Mortgage") securing financing with respect to the construction, development, use or
operation of the Project.
6.2 Mortgage Protection.
This Agreement shall be superior and senior to the lien of any Mortgage.
Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid,
diminish, or impair the lien of any Mortgage made in good faith and for value, and any
acquisition or acceptance of title or any right or interest in or with respect to the Site or any
portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or
assignee to said holder (a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in
lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terns and
conditions of this Agreement.
6.3 Mortgagee Not Obligated.
No Mortgagee will have any obligation or duty under this Agreement to perform the
obligations of the Developer or other affirmative covenants of Developer hereunder, or to
guarantee such performance, except that to the extent that any covenant to be performed by the
Developer is a condition to the performance of a covenant by the City, the performance thereof
shall continue to be a condition precedent to the City's performance hereunder.
6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
City shall, upon written request to the City, deliver to each Mortgagee a copy of any
notice of default given to Developer under the terms of this Agreement, at the same time of
sending such notice of default to Developer. The Mortgagee shall have the right, but not the
obligation, within ten (10) days [or thirty (30) days for non -monetary defaults] after the receipt
of such notice from the City, to cure, correct, or remedy the default, or, for such defaults that
cannot reasonably be cured, corrected, or remedied within ten (10) days [thirty (30) days for non -
monetary defaults], the Mortgagee shall commence to cure, correct, or remedy the default within
such ten (10) day period [or thirty (30) day period for non -monetary defaults], and shall
continuously and diligently prosecute such cure to completion. If the default is of a nature which
can only be remedied or cured by such Mortgagee upon obtaining possession of the Site, such
Mortgagee shall have the right to seek to obtain possession with diligence and continuity through
foreclosure, a receiver or otherwise, and shall be permitted thereafter to remedy or cure the
default within such time as is reasonably necessary to cure or remedy said default but in no event
more than thirty (30) days after obtaining possession. If any such default cannot, with diligence,
be remedied or cured within such thirty (30) day period, then such period shall be extended to
permit the Mortgagee to effect a cure or remedy so long as Mortgagee commences said cure or
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remedy during such thirty (30) day period, and thereafter diligently pursues and completes such
cure.
7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT.
7.1 Successors and Assigns.
Developer shall have the right to sell, transfer or assign the Site, or any portion thereof
(provided that no such transfer shall violate the Subdivision Map Act, Government Code
§66416, et seq.) to any person, partnership, joint venture, firm or corporation at any time during
the term of this Agreement, without first obtaining the City's prior written consent; provided,
however, that any such sale or transfer shall include, with respect to the Site or the portion
thereof sold or transferred, the assignment and assumption, in a fully executed written
agreement, in whole or in part, of the rights, duties and obligations of the Developer under the
terms of this Agreement. Upon such sale, transfer or assignment, Developer shall, with respect
to the Site or the portion thereof sold or transferred, be released from any further obligations
under the terms of this Agreement, provided:
(a) Developer no longer has any legal or equitable interest in the Site or the portion
thereof sold or transferred, as applicable;
(b) Developer is not, at the time of the transfer, in default under the terms of this
Agreement; and
(c) Developer has submitted an executed assignment and assumption agreement in a
form set forth in Exhibit "E", attached hereto.
8.0 MISCELLANEOUS.
8.1 Notices.
All notices permitted or required hereunder must be in writing and shall be effected by (i)
personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or (iii)
reputable same -day or overnight delivery service that provides a receipt showing date and time
of delivery, addressed to the following parties, or to such other address as any party may from
time to time, designate in writing in the manner as provided herein:
To City: City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Attn: Community Development Director
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson
24651015610-0125
2303172.6 A 1,04/11 -12-
To Developer: Kathryn Carlson
VPAH,LLC
P.O. Box 1711
La Quinta, CA 92253
Telephone: 760-564-3 83 3
Any written notice, demand or communication shall be deemed received immediately if
personally delivered or delivered by delivery service, and shall be deemed received on the third
day from the date it is postmarked if delivered by registered or certified mail.
8.2 Force Majeure.
In addition to specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default where delays or failures to perform are due to
war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts
of the public enemy, terrorism, epidemics, quarantine restrictions, freight embargoes,
governmental restrictions imposed or mandated by other governmental entities, governmental
restrictions or priority, unusually severe weather, inability to secure labor, materials, or tools
necessary for the Project, delays of any contractor, subcontractor or supplier; acts of another
party, acts or the failure to act of any public or governmental agency or entity (except that acts or
the failure to act of the City shall not excuse performance by the City) or any other causes
beyond the control or without the fault of the party claiming an extension of time to perform. An
extension of time for any such cause shall only be for the period of the enforced delay, which
period shall commence to run from the time of the commencement of the cause. The City and
the Developer may also extend times of performance under this Agreement in writing.
Notwithstanding the paragraph above but subject to the termination options in Section
1.1, Developer is not entitled pursuant to this Section 8.2 to an extension of time to perform
because of past, present, or future difficulty in obtaining suitable construction or permanent
financing for the development of the Site, or because of economic or market conditions.
8.3 Binding Effect.
This Agreement, and all of the terms and conditions hereof, shall be binding upon and
inure to the benefit of the parties, any subsequent owner of all or any portion of the Project or the
Site, and their respective assigns, heirs or successors in interest, whether or not any reference to
this Agreement is contained in the instrument by which such person acquired an interest in the
Project or the Site.
8.4 Independent Entity -
The parties acknowledge that, in entering into and performing this Agreement, each of
the Developer and the City is acting as an independent entity and not as an agent of the other in
any respect.
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2303172.6 all104/II
8.5 Agreement Not to Benefit Third Parties.
This Agreement is made for the sole benefit of the parties, and no other person shall be
deemed to have any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on
this Agreement, nor be deemed to be a third party beneficiary under this Agreement.
8.6 Covenants.
The provisions of this Agreement shall constitute mutual covenants which shall run with
the land comprising the Site for the benefit thereof, and the burdens and benefits hereof shall
bind and inure to the benefit of each of the parties hereto and all successors in interest to the
parties hereto for the term of this Agreement.
8.7 Nonliability of City Officers and Employees.
No official, officer, employee, agent or representative of the City, acting in his/her
official capacity, shall be personally liable to Developer, or any successor or assign, for any loss,
costs, damage, claim, liability, or judgment, arising out of or connection to this Agreement, or
for any act or omission on the part of the City.
8.8 Covenant Against Discrimination.
Developer and City covenant and agree, for themselves and their respective successors
and assigns, that there shall be no discrimination against, or segregation of, any person or group
or persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry, or any other impermissible classification, in the performance of this Agreement.
Developer shall comply with the Americans with Disabilities Act of 1990, as amended (42
U.S.C. §§ 12101, etseq.).
8.9 Amendment of Agreement.
This Agreement may be amended from time to time by mutual consent of the original
parties or such party to which the Developer assigns all or any portion of its interest in this
Agreement, in accordance with the provisions of the City's Development Agreement Ordinance
and Government Code Sections 65867 and 65868.
8.10 No Waiver.
No waiver of any provision of this Agreement shall be effective unless in writing and
signed by a duly authorized representative of the party against whom enforcement of a waiver is
sought and referring expressly to this Section. No delay or omission by either party in exercising
any right or power accruing upon non-compliance or failure to perform by the other party under
any of the provisions of this Agreement shall impair any such right or power or be construed to
be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the
covenants or conditions to be performed by the other party shall be construed or deemed a
waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof.
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8.11 Severability.
If any term, provision, covenant or condition of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this
Agreement shall continue in full force and effect, to the extent that the invalidity or
unenforceability does not impair the application of this Agreement as intended by the parties.
8.12 Cooperation in Carrying Out Agreement.
Each party shall take such actions and execute and deliver to the other all such further
instruments and documents as may be reasonably necessary to carry out this Agreement in order
to provide and secure to the other party the full and complete enjoyment of its rights and
privileges hereunder.
8.13 Estoppel Certificate.
Any party hereunder may, at any time, deliver written notice to any other party requesting
such party to certify in writing that, to the best knowledge of the certifying party, (i) this
Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement
has not been amended or modified either orally or in writing, or if so amended, identifying the
amendments, (iii) the requesting party is not in default in the performance of its obligations
under this Agreement, or if in default, describing the nature and amount of any such defaults, and
(iv) any other reasonable information requested. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following receipt of such written
request. The City Manager, Assistant City Manager, and Planning Director are each authorized
to sign and deliver an estoppel certificate on behalf of the City. The City acknowledges that a
certificate hereunder may be relied upon by transferees and Mortgagees.
8.14 Construction.
This terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction that might otherwise apply. As used in this
Agreement, and as the context may require, the singular includes the plural and vice versa, and
the masculine gender includes the feminine and vice versa.
8.15 Recordation.
This Agreement shall be recorded with the County Recorder of Riverside County at
Developer's cost, if any, within the period required by Government Code Section 65868.5.
Amendments approved by the parties, and any cancellation or termination of this Agreement,
shall be similarly recorded.
8.16 Captions and References.
The captions of the paragraphs and subparagraphs of this Agreement are solely for
convenience of reference, and shall be disregarded in the construction and interpretation of this
Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and
exhibits of this Agreement.
2465,015610-0125
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8.17 Time.
Time is of the essence in the performance of this Agreement and of each and every term
and condition hereof as to which time is an element.
8.18 Recitals & Exhibits Incorporated; Entire Agreement.
The Recitals to this Agreement and all of the exhibits and attachments to this Agreement
are, by this reference, incorporated into this Agreement and made a part hereof. This
Agreement, including all Exhibits attached hereto, constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement, and this Agreement supersedes all
previous negotiations, discussions and agreements between the parties, and no parole evidence of
any prior or other agreement shall be permitted to contradict or vary the terms hereof.
8.19 Exhibits.
Exhibits "A" — "F" to which reference is made in this Agreement are deemed
appropriated herein in their entirety. Said exhibits are identified as follows:
A Legal Description of Site
B Conditions of Approval
C Restriction
D Compliance Certificate
E General Assignment and Assumption Agreement
F Parking Easement Agreement
8.20 Counterpart Signature Pages.
For convenience the parties may execute and acknowledge this agreement in counterparts
and when the separate signature pages are attached hereto, shall constitute one and the same
complete Agreement.
8.21 Authority to Execute.
Developer warrants and represents that (i) it is duly organized and existing, (ii) it is duly
authorized to execute and deliver this Agreement, (iii) by so executing this Agreement,
Developer is formally bound to the provisions of this Agreement, (iv) Developer's entering into
and performance of its obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound, and (v) there is no existing or threatened litigation
or legal proceeding of which Developer is aware which could prevent Developer from entering
into or performing its obligations set forth in this Agreement.
8.22 Governing Law; Litigation Matters.
The internal laws of the State of California shall govern the interpretation and
enforcement of this Agreement without regard to conflicts of law principles. Any action at law
or in equity brought by any party hereto for the purpose of enforcing, construing, or interpreting
the validity of this Agreement or any provision hereof shall be brought in the Superior Court of
the State of Califomia in and for the County of Riverside, or such other appropriate court in said
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county, and the parties hereto waive all provisions of law providing for the filing, removal, or
change of venue to any other court. Service of process on the City shall be made in accordance
with California law. Service of process on Developer shall be made in any manner permitted by
California law and shall be effective whether served inside or outside of California. In the event
of any action between the parties hereto seeking enforcement of any of the terms of this
Agreement or otherwise arising out of this Agreement, the prevailing party in such litigation
shall be awarded, in addition to such relief to which such party is entitled, its reasonable
attorney's fees, expert witness fees, and litigation costs and expenses.
8.23 No Brokers.
Each of the City and the Developer represents to the other party that it has not engaged
the services of any finder or broker and that it is not liable for any real estate commissions,
broker's fees, or finder's fees which may accrue by means of this Agreement, and agrees to hold
harmless the other party from such commissions or fees as are alleged to be due from the party
making such representations.
[Signatures on following page.]
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IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as
of the Reference Date.
"DEVELOPER"
VPAH, LLC, a California limited liability
company
Its:
By:
Its:
[Signatures continue on next page.]
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"CITY"
CITY OF LA QUINTA, a California municipal
corporation and charter city
Thomas P. Genovese
City Manager
ATTEST:
June Greek
City Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
M. Katherine Jenson
City Attorney
2465/015610-0125 -19-
23031726.11/04/1I
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF )
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
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EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[Need to insert — Developer Please Provide]
24651015610-0125 -2 i -
2303172 6 a11/04/II
EXHIBIT "B"
CONDITIONS OF APPROVAL
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EXHIBIT "C"
Restriction
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RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
Space Above Tbis Line for Recorder's Use
(Exempt from Recording Fee per Gov't Code § 6103 )
DEED RESTRICTION
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, VPAH, LLC.,
a California limited liability company ("Declarant"), hereby covenants and declares for the
benefit of the City of La Quinta, a California municipal corporation and charter city (the "City"),
the following covenants, conditions, reservations and restrictions, which shall run with the real
property described herein and shall be binding on Declarant and City and their successors and
assigns, and all other persons or entities acquiring any interest in the real property described
herein, and shall remain in full force and effect from the date of recordation of this Deed
Restriction unless terminated or modified as hereinafter provided.
1. P ose: Declarant owns the 0.35 acre parcel of real property ("Site") located at
the northeast corner of Eisenhower Drive and Avenida Montezuma, in the City of La Quinta,
County of Riverside, State of California, which Site is legally described in Exhibit "A" attached
hereto, which is the subject of this Deed Restriction. In connection with the Site, the City
approved Village Use Permit No. 2008-042 (the "VUP"), subject to conditions of approval,
which provides planning and development criteria for a project commonly known as Village
Park Animal Hospital (the "Project"). The La Quinta Municipal Code requires the provision of
29 parking stalls to service the Project. On 2011 the Declarant and the City
entered into that certain Development Agreement (the "Development Agreement") for the
purposes of (i) setting forth a per -parking stall payment for the Declarant's payment to the City
of certain fees that the parties agree are designed to compensate the City for (A) the crediting of
13 parking stalls located in the Village Commercial zoning district towards fulfilling the
Project's parking obligation; and (B) the potential added wear and tear on the municipal
infrastructure which will result from the Development Plan and the crediting of the parking
spaces in the Village Commercial zoning district; (ii) requiring the Declarant and its successors -
in -interest to provide public parking on the Site; and (iii) granting Declarant a vested right to
develop the Site according to the Development Plan. Capitalized terms not defined herein shall
have the same meaning as set forth in the Development Agreement. In accordance with
Section 3.2 of the Development Agreement, Declarant is required to record this Deed Restriction
against the Site to (i) require the Declarant's payment of the fees as described in Section 3.3 of
the Development Agreement, (ii) acknowledge that such fees have been paid and that the parking
2465/015610-0125
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obligation for the Project is fulfilled by the credit of 13 parking stalls; and (iii) provide for the
general public's use of Site parking stalls during times when the on -Site business is closed as
provided by Section 3.5 of the Development Agreement.
2. Acknowledgement of Payment and Credit of Parkin Stalls. talls. In connection with
the Project, the City has credited the Declarant with 13 parking stalls, and these stalls are counted
towards fulfilling the Project's parking obligations to provide 29 parking stalls for the Project. In
connection with this credit, Declarant has paid the City a parking fee in the amount of $1,183.53
for each parking stall towards the Project's parking obligation for a total of $15,386.
3. Use of Site Parking Lot by General Public. The parking stalls located on the Site
shall be available to the general public for use between the hours of 6:00 p.m. and 2:00 a.m.;
provided, however, that Declarant (and/or its permitted successors) may reserve five (5)
designated spaces to remain open after 6:00 p.m. At the request of Declarant, the Planning
Director may consider increasing the number of designated spaces to equal up to 50% of the on -
Site parking spaces if the Planning Director determines that an increase in designated spaces is
warranted. Any such approval must be in writing to be effective. Declarant shall not erect or
maintain entry gates, regulated access barriers or any other driveway barrier. Except for signage
identifying designated spaces, Declarant shall not erect or place any signage on the Site
prohibiting public parking during times that on -Site businesses are closed. The parking lot on .
the Site shall be lighted in conformity with the La Quinta Municipal Code between dusk and
11:00 p.m. every day of the week.
4. Indemnification. Declarant agrees to and shall indemnify, hold harmless, and
defend, the City and its respective officers, officials, members, agents, employees, and
representatives (collectively, "the Indemnified Parties"), from liability or claims for death or
personal injury and claims for property damage which may arise from the acts, errors, and/or
omissions of the Declarant or its contractors, subcontractors, agents, employees or other persons
acting on its behalf in relation to the Project and/or the Development Agreement, except to the
extent that the liability or claims arise from the City's gross negligence or willful misconduct.
The foregoing indemnity applies to all deaths, injuries, and damages, and claims therefor,
suffered or alleged to have been suffered by reason of the acts, errors, and/or omissions referred
to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans
or specifications, or both, and regardless of whether or not any insurance policies are applicable.
Declarant agrees to and shall indemnify, hold harmless, and defend, the Indemnified
Parties from any challenge to the validity of the Development Agreement, this Deed Restriction,
or the Parking Easement Agreement; the Declarant shall indemnify, hold harmless, pay all costs
and provide defense for the Indemnified Parities in said action or proceeding with counsel
chosen by the City and reasonably approved by Declarant.
In the event the Indemnified Parties are made a party to any action, lawsuit, or other
adversarial proceeding in any way involving claims specified in paragraphs (a) or (b) above,
Declarant shall provide a defense to the Indemnified Parties, or at the Indemnified Parties'
option, reimburse the Indemnified Parties their costs of defense, including reasonable attorney's
fees, incurred in defense of such claim. The Indemnified Parties shall have the right to select
legal counsel of their choice. In addition, Declarant shall be obligated to promptly pay any final
judgment or portion thereof rendered against the Indemnified Parties. The City shall, at no cost
2465,015610-0125
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to the City, cooperate with the Declarant in any such defense as Declarant may reasonably
request.
5. Run with the Land; Binding on Successors and Assigns. The covenants,
conditions, reservations and restrictions herein shall run with the Site and shall be binding upon
Declarant and each successive owner, lessee, licensee and other occupant of all or any portion of
the Site, and shall benefit the City and be enforceable by the City and its successors and assigns.
Every person or entity who now or hereafter owns or acquires any right, title or interest in or to
any portion of the Site is and shall be conclusively deemed to have consented and agreed to
every covenant, condition, reservation and restriction contained herein whether or not any
reference to this Deed Restriction is contained in the instrument by which such person or entity
acquired an interest in the Site...
6. Term, Amendment and Termination. The covenants, conditions, reservations and
restrictions may be validly terminated, amended or modified, in whole or in.part, only by
recordation with the Riverside County Recorder of a proper instrument duly executed and
acknowledged by (a) City, or, as applicable, its successors and assigns, and (b) the owner(s) of
the fee interest in the portion of the Site that is directly affected by such termination, amendment
or modification.
7. Recording. This Deed Restriction shall be recorded on the Site described in
Exhibit "A" in the Office of the County Recorder, Riverside County, California.
8.. Authority of Signatories to Bind Principals. The persons executing this Deed
Restriction on behalf of their respective principals represent that (i) they have been authorized to
do so and that they thereby bind the principals to the terms and conditions of this Deed
Restriction and (ii) their respective principals are properly and duly organized and existing under
the laws of, and permitted to do business in, the State of California.
7. Counterparts. This Deed Restriction may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the same instrument.
[Signatures on next page.]
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IN WITNESS WHEREOF, this Deed Restriction has been executed by the parties as of
the date set forth above.
"Developer"
VPAH, LLC, a California limited liability
company
By:
Its:
By:
Its:
"CITY"
CITY OF LA QUINTA, a California municipal
corporation and charter city
ATTEST:
Thomas P. Genovese
June Greek
City Manager City Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
M. Katherine Jenson
City Attorney
2465,015610-0125
2303172.6 al1/04/11 -27-
STATE OF CALIFORNIA )
ss
COUNTY OF )
On before, me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF 1
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
2465/015610-0125
2303172.6.11/04/11 - -28-
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[Insert legal description here — Developer Please Provide]
24651015610-0125 -2.9-
2303172.6 al I/04/1 I
EXHIBIT "D"
COMPLIANCE CERTIFICATE
2465/015610A125
2303172.E a11/04/11 -30-
COMPLIANCE CERTIFICATE
(VPAH, LLC DEVELOPMENT AGREEMENT)
The undersigned, VPAH, LLC, a California limited liability company ("Developer"),
pursuant to Section 4.1 of that certain Development Agreement dated 2011,
(the "Development Agreement"), by and among Developer and the City of La Quinta, a
California municipal corporation and charter city (the "City"). by its signature below hereby
certifies to the City, for the City's reliance that:
1. Capitalized terms not defined herein shall have the same meaning as set
forth in the Development Agreement;
2. The undersigned is familiar with the certifications and representations set
forth in this Compliance Certificate;
3. Developer has performed and complied with its obligations under the
Development Agreement to be performed or complied with by it on or prior to the date hereof.
Developer has also performed all Conditions of Approval to be performed or complied with by it
on or prior to the date hereof. Not by way of limitation of the foregoing, the Developer warrant
and represents that: (1) the Restriction required by Section 3.2 of the Development Agreement
has been approved by the City and recorded against the Site; (2) all payments required pursuant
to Section 3.3.2 of the Development Agreement have been paid; and (3) all Conditions of
Approval to be performed or complied with as of, the date hereof have been satisfied in the
manner set forth in Schedule 1, which schedule identifies all applicable Conditions of Approval
and a description of how the condition has been satisfied.
IN WITNESS WHEREOF, this Compliance Certificate is executed effective the
day of under penalty of perjury under the laws of California.
VPAH, LLC, a California limited liability company
By:
Its:
By:
Its:
2465,015610-0125
2303172 6 a 11/04/ 11 -3 1-
SCHEDULEI
CONDITIONS OF APPROVAL
[DEVELOPER SHALL ATTACH A FULL AND COMPLETE LIST OF ALL
CONDITIONS OF APPROVAL THAT ARE APPLICABLE TO THE PROJECT TO
DATE AND A DESCRIPTION OF HOW EACH CONDITION OF APPROVAL HAS
BEEN SATISFIED.]
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EXHIBIT "E"
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
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2303 172.6 al 1,04/11 -33-
RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
Space Above This Line for Recorder's Use
(Exempt from Recording Fee per Gov't Code § 6103)
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment") is
made and entered into as of ("Effective Date"), by and between VPAH,
LLC, a California limited liability company (the "Developer" or "Assignor") and [ASSIGNEE]
("Assignee"), with reference to the following Recitals.
Recitals
A. Assignor is the developer of 0.35 acres of real property located in the City of La
Quinta, County of Riverside, State of California (the "Site"), which is legally described in
Exhibit "A" attached here.
B. Capitalized terms not defined herein shall have the same meaning as set forth in
the Development Agreement.
C. Assignor, as "Developer" and the City of La Quinta, a California municipal
corporation ("City"), have entered into that certain Development Agreement dated
2011 (the "Development Agreement"), for purposes of, among other things, (i)
setting forth a per -parking stall payment for the Developer's payment to the City of certain fees
that the parties agree are designed to compensate the City for (A) the crediting of 13 parking
stalls towards fulfilling the Project's parking obligation; and (B) the potential added wear and
tear on the municipal infrastructure which will result from the Development Plan; (ii) requiring
the Developer and its successors -in -interest to provide public parking on the Site; and (iii)
granting Developer a vested right to develop the Site according to the Development Plan.
D. Concurrently with the Effective Date, Assignor shall have conveyed to Assignee
the Site [or the portion thereof described on Exhibit B attached hereto (the "Designated Site")].
2465/015610-0125
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E. In accordance with Section 7.1 of the Development Agreement, Assignor now
desires to assign all of its obligations and its right, title, and interest in and to the Development
Agreement [as to the Designated Site] to Assignee, and Assignee desires to accept such
assignment on, and subject to, the terms and conditions set forth in this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Agreement
1. Assignment. From and after the Effective Date, Assignor hereby assigns,
conveys, transfers and delivers to Assignee all of Assignor's right, title, interest, and obligation
in, to and under the Development Agreement [as the same applies to the Designated Site], and
Assignee hereby accepts such assignment and agrees to assume performance of all terms,
covenants and conditions occurring or arising under the Development Agreement [as the same
applies to the Designated Site] from and after the date of this Assignment.
2. Assumption of Obligations. By acceptance of this Assignment, Assignee hereby
agrees to assume all of Assignor's right, title, interest and obligation in, to and under the
Development Agreement [as the same applies to the Designated Site], and Assignee agrees to
timely discharge, perform or cause to be performed and to be bound by all of the liabilities,
duties and obligations imposed in connection with the Development Agreement [as the same
applies to the Designated Site], from and after the date of this Assignment to the same extent as
if Assignee had been the original party thereto.
3. Successors and Assigns. This Assignment shall be binding upon and shall inure
to the benefit of the successors and assigns of the respective parties hereto.
4. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of California.
5. Further Assurances. The parties covenant and agree that they will execute such
other and further instruments and documents as are or may become necessary or convenient to
effectuate and carry out this Assignment.
6. Authority of Signatories to Bind Principals. The persons executing this
Assignment on behalf of their respective principals represent that (i) they have been authorized
to do so and that they thereby bind the principals to the terms and conditions of this Assignment
and (ii) their respective principals are properly and duly organized and existing under the laws
of, and permitted to do business in, the State of California.
7. Interpretation. The paragraph headings of this Assignment are for reference and
convenience only and are not part of this Assignment. They have no effect upon the construction
or interpretation of any part hereof. The provisions of this Assignment shall be construed in a
reasonable manner to effect the purposes of the parties and of this Assignment.
2465,015610-0125
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8. Counterparts. This Assignment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, this Assignment has been executed by the parties as of the
date set forth above.
"Assignor"
VPAH, LLC, a California limited liability
company
By:
Its:
By:
Its:
"Assignee"
[INSERT ASSIGNEE SIGNATURE
BLOCK]
2465/015610-0125
2303172.6 a VO4/11 -36-
STATE OF CALIFORNIA )
) ss
COUNTY OF 1
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF )
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
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EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[To be inserted — Developer Please Provide.]
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RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
Space above this line for Recorder's use only
(Exempt from Recording Fee per Gov't Code § 6103)
PARKING EASEMENT AGREEMENT
THIS PARKING EASEMENT AGREEMENT (the "Easement Agreement") is made as
of this _ day of 20 by and between VPAH, LLC, a California limited
liability company ("Developer"), and CITY OF LA QUINTA, a California municipal
corporation and charter city (the "City") (collectively, the "Parties").
RECITALS
A. Developer is the owner of that certain real property (the "Site") more particularly
described in Exhibit "A" attached hereto upon which is to be developed the Village Park Animal
Hospital (the "Project").
B. Developer and the City have entered into that certain Development Agreement
(the "DA") for purposes of granting Developer a credit of 13 parking stalls towards the Project's
required parking under the La Quinta Municipal Code in exchange for Developer paying to the
City a parking fee.
C. In Section 3.5 of the DA, Developer agreed to allow access to the parking stalls
located on the Site (the "Parking Stalls") between 6:00 p.m. and 2:00 a.m.
D. The Parties hereto desire to enter into this Easement Agreement for providing
appropriate access to the Parking Stalls, in accordance with Section 3.5 of the DA.
NOW, THEREFORE, incorporating the foregoing recitals and in consideration of the
mutual covenants and conditions contained herein and for other good and valuable consideration,
receipt of which is hereby acknowledged, the Parties agree as follows:
I. Grant of Parking Easement. Developer, for itself and its respective successors
and assigns, hereby grants to the City, its successors and assigns, and their tenants, subtenants,
agents, licensees invitees (including employees, faculty, students and guests), and the general
public for the benefit of the Property, a non-exclusive easement and right-of-way in, upon, over,
and under the Parking Stalls (and all improvements located thereon) for the purpose of providing
2465,015610-0125
2544103.2 a1104111
parking spaces on an "as available" basis ("Parking Use") between 6:00 p.m. and 2:00 a.m., in
accordance with and subject to terms and conditions of the DA and this Easement Agreement.
2. Term. The Parties agree that this Easement Agreement shall continue to be valid
and binding as long as the DA remains in force pursuant to Section 1.1 of the DA.
3. Indemnity.
(a) Developer agrees to and shall indemnify, hold harmless, and defend, the
City and its respective officers, officials, members, agents, employees, and representatives
(collectively, "the Indemnified Parties"), from liability or claims for death or personal injury and
claims for property damage which may arise from any negligent maintenance or omission related
to the Site by the Developer or its contractors, subcontractors, agents, employees or other
persons acting on its behalf in relation to the Project and/or this Agreement, except to the extent
that the liability or claims arise from the City's gross negligence or willful misconduct. The
foregoing indemnity applies to all deaths, injuries, and damages, and claims therefor, suffered or
alleged to have been suffered by reason of the acts, errors, and/or omissions referred to in this
paragraph, regardless of whether or not the City prepared, supplied, or approved plans or
specifications, or both, and regardless of whether or not any insurance policies are applicable.
(b) Developer agrees to and shall indemnify, hold harmless, and defend, the
Indemnified Parties from any challenge to the validity of this Easement Agreement; the
Developer shall indemnify, hold harmless, pay all costs and provide defense for the Indemnified
Parities in said action or proceeding with counsel chosen by the City and reasonably approved by
Developer.
(c) In the event the Indemnified Parties are made, a party to any action,
lawsuit, or other adversarial proceeding in any way involving claims specified in paragraphs (a)
or (b) above, Developer shall provide a defense to the Indemnified Parties, or at the Indemnified
Parties' option, reimburse the Indemnified Parties their costs of defense, including reasonable
attorney's fees, incurred in defense of such claim. The Indemnified Parties shall have the right to
select legal counsel of their choice. In addition, Developer shall be obligated to promptly pay
any final judgment or portion thereof rendered against the Indemnified Parties. The City shall, at
no cost to the, City, cooperate with the Developer in any such defense as Developer may
reasonably request.
4. Successors and Assigns. The terms, covenants and conditions of this Easement
Agreement shall be binding upon- and shall inure to the benefit of the heirs, executors,
administrators and assigns of the respective Parties hereto.
5. Attorneys' Fees. In the event of any action between the parties hereto seeking
enforcement of any of the terms of this Easement Agreement or otherwise arising out of this
Easement Agreement, the prevailing party in such litigation shall be awarded, in addition to such
relief to which such party is entitled, its reasonable attorney's fees, expert witness fees, and
litigation costs and expenses.
6. Notices. All notices permitted or required hereunder must be in writing and shall
be effected by (i) personal delivery, (ii) first class mail, registered or certified, postage fully
2465/015610-0125
2544103.2 all/04/I1 2
prepaid, or (iii) reputable same -day or overnight delivery service that provides a receipt showing
date and time of delivery, addressed to the following parties, or to such other address as any
party may from time to time, designate in writing in the manner as provided herein:
To City: City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Attn: Community Development Director
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson
To Developer: Kathryn Carlson
VPAH, LLC
P.O. Box 1711
La Quinta, CA 92253
Telephone: 760-564-3833
7. Governing Laws. This Easement Agreement shall be construed in accordance
with the laws of the State of California.
8. Execution in Counterpart. This Easement Agreement may be executed in several
counterparts, and all so executed, when taken together shall constitute one agreement binding on
all parties hereto, notwithstanding that all parties are not signatories to the original or the same
counterpart.
9. Severability. If any term, provision of condition contained in this Easement
Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Easement
Agreement, except those terms, provisions or conditions which are made subject to or conditions
upon such invalid or unenforceable terms, provisions or conditions, shall not be affected thereby,
and each term, provision and condition of this Easement Agreement shall be valid and
enforceable to the fullest extent permitted by law.
10. Modifications. This Easement Agreement and the easements granted hereunder
may not be amended or otherwise modified, except by an agreement in writing signed by the
parties hereto. No such amendments or modifications shall have any force or effect whatsoever
unless and until they are written and executed in such a manner.
11. Running With The Land. The Easement Agreement, and all burdens and benefits
created thereby shall be appurtenant to and shall run with the respective property of Developer.
Upon recordation of this Developer Agreement, every person or entity that now or hereafter
owns or acquires any right, title or interest in or to all or any portion of the Property or the
Parking Stalls is and shall be conclusively deemed to have consented and agreed to every
1465,015610-0125
2544103.2 all/04/11
provision of this Easement Agreement, whether or not any reference to this Easement Agreement
is contained in the instrument by which such person or entity acquired such interest.
12. Conflict with the DA. In the event of a conflict between this Easement
Agreement and the DA, the terms of the DA shall govern and control.
[Signatures on next page.]
2465/015610-0125
2544103.2 al 1104/11
IN WITNESS WHEREOF, the Parties have executed this Easement Agreement as of the
date first written above.
"Developer"
VPAH, LLC, a California limited liability
company
By:
Its:
By:
Its:
"CITY"
CITY OF LA QUINTA, a California municipal
corporation and charter city
ATTEST:
Thomas P. Genovese
June Greek
City Manager City Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
M. Katherine Jenson
City Attorney
2465,015610.0125 5
2544103.2 al I/04/1 I
State of California
County of Orange
On before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
State of California
County of Orange
On before me, ,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
2465/015610-0125
2544103.2 a11/04/11
f *14I I RI Y IiAfii
LEGAL DESCRIPTION OF THE SITE
[To be inserted
2465,015610-0125
25441032 a11!04/11
STAFF REPORT PH #B-2
PLANNING COMMISSION
DATE: NOVEMBER 8, 2011
CASE NO.: RIGHT-OF-WAY VACATION 2008-042
REQUEST: REPORT OF FINDING UNDER CALIFORNIA GOVERNMENT CODE
SECTION 65402 THAT THE PROPOSED RIGHT-OF-WAY VACATION
OF A + 535 SQ. FT. PORTION OF EISENHOWER DRIVE/AVENIDA
MONTEZUMA IS CONSISTENT WITH THE GENERAL PLAN
LOCATION: PORTION OF EISENHOWER DRIVE/AVENIDA MONTEZUMA
APPLICANT: DR. KATHRYN CARLSON, VILLAGE PARK ANIMAL HOSPITAL
BACKGROUND:
Pursuant to Government Code Section 65402, the Planning Commission shall make a
finding that the proposed vacation is consistent with the City's General Plan and
Circulation Element for any street right -of -way or public easements being vacated by the
City Council.
A portion of right-of-way near the intersection of Eisenhower Drive/Avenida Montezuma is
no longer required. This portion of right-of-way is specifically described in Attachment 1.
and 2 and is not needed by other property owners for access, or improved accessibility.
ENVIRONMENTAL CONSIDERATION:
The proposed vacation is categorically exempt under Section 15060, and not subject to
the California Environmental Quality Act (CEQA).
PUBLIC AGENCY COMMENTS:
On September 23, 2011, staff mailed notices to potentially affected public utility
agencies and public agencies, respectively, informing them of the proposed vacation. If
the utility companies respond with requests for easements to continue operation and
maintenance of existing public utilities, a utility easement will be reserved. To date, no
objection to the right of way vacation has been received.
FINDINGS:
1. The proposed right-of-way vacation will have no environmental effects that
adversely impact the human population, either directly or indirectly because the
right-of-way is currently unused by the public and is inaccessible to vehicles; and
secondly, the act of vacating the right-of-way will have no physical environmental
effect.
2. The right-of-way vacation will not impact public utility agencies.
RECOMMENDATION:
Adopt Planning Commission Resolution 201 1-_ finding that Right -of -Way Vacation 2008-
042 is consistent with the La Quinta General Plan.
Attachments:
1 . Plat Map
2. Legal Description
Prepared by:
EDWARD J. WIMMER, P.E.
Principal Engineer
2
PLANNING COMMISSION RESOLUTION 2011-
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF LA QUINTA, CALIFORNIA THAT THE PROPOSED
RIGHT-OF-WAY VACATION OF A + 535 SQ. FT. PORTION
OF EISENHOWER DRIVE/AVENIDA MONTEZUMA IS
CONSISTENT WITH THE GENERAL PLAN
CASE NO. 2008-042: RIGHT OF WAY VACATION
WHEREAS, the Planning Commission of the City of La Quinta, California,
did on the 8T" day of November, 2011, consider the request for right-of-way vacation
of a portion of Eisenhower Drive/Avenida Montezuma; and,
WHEREAS, the proposed vacation is exempt under Section 15060 of the
California Environmental Quality Act (CEQA) in that the vacation of the subject
easement will not result in a direct or reasonably foreseeable indirect physical change in
the environment.
WHEREAS, State Government Code Section 65402 requires that prior to
streets being vacated by the City Council, the Planning Commission make a finding that
the proposed right-of-way vacation is consistent with the City's General Plan; and,
WHEREAS, said Planning Commission did make the following Mandatory
Finding confirming that the proposed street vacation is consistent with the City's
General Plan:
The proposed right-of-way vacation will have no environmental effects that
adversely impact the human population, either directly or indirectly, because the
street segment is currently unused by the public and inaccessible to vehicles; and
secondly, the act of vacating the right-of-way will have no physical
environmental effect.
2. The right-of-way vacation will not impact public utility agencies, provided
easements are retained for the continued maintenance and operation of existing
public utilities.
3. The portion of Eisenhower Drive/Avenida Montezuma is no longer needed for
public street purposes.
4. Under CGC Section 65402 the proposed Right of Way Vacation of a 535 sq. ft.
portion of Eisenhower Drive/Avenida Montezuma is consistent with the La Quint3
General Plan.
Planning Commission Resolution 2011-
Right-of-Way Vacation
November 8, 2011
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the
City of La Quinta, California, as follows:
Section 1. That the above recitations are true and constitute the findings of the
Planning Commission in this case;
Section 2. That it does find the proposed Right -of -Way Vacation 2008-042, as
shown on the Attachments 1 and 2, is consistent with the City's General Plan for the
reasons set forth in this Resolution and recommends to the City Council approval of the
right-of-way vacation.
PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta
Planning Commission, held on this 15t day of November, 2011, by the following vote,
to wit:
AYES: Commissioners Barrows, Wright, Weber, Wilkinson, and Chairman Alderson
NOES: None
ABSENT: None
ABSTAIN: None
ED ALDERSON, Chairman
City of La Quinta, California
ATTEST:
LES JOHNSON
Planning Director
City of La Quinta, California
4
EXHIBIT „B„ ATTACHMENT # 1
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ATTACHMENT # 2
EXHIBIT "A"
STREET VACATION
A PORTION OF THE RIGHT OF WAY GRANTED TO THE COUNTY OF
RIVERSIDE PER GRANT DEED RECORDED OCTOBER 25, 1979 AS
INSTRUMENT NO. 256939, RECORDS OF SAID RIVERSIDE COUNTY, STATE OF
CALIFORNIA, IN THE CITY OF LA QUINTA, SAID RIGHT OF WAY BEING A
PORTION OF LOT 12, BLOCK 128, OF SANTA CARMELITA AT VALE LA
QUINTA NO 14, AS SHOWN ON MAP ON FILE IN MAP BOOK 18, PAGE 82,
RECORDS OF SAID RIVERSIDE COUNTY, MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 12,
THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 12 SOUTH
60001'08" WEST A DISTANCE OF 31.51 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE CONTINUING ALONG THE SOUTHERLY LINE OF SAID LOT 12
SOUTH 60001'08" WEST A DISTANCE OF 7.48 FEET TO THE BEGINNING
OF A CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 20.00
FEET;
THENCE CONTINUING ALONG THE SOUTHERLY LINE OF SAID LOT 12
ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 41.85 FEET
THROUGH A CENTRAL ANGLE OF 119'53'30;
THENCE CONTINUING ALONG THE WESTERLY LINE OF SAID LOT 12
NORTH 00005'23" WEST A DISTANCE OF 9.79 FEET;
THENCE LEAVING SAID WESTERLY LINE OF SAID LOT 12 SOUTH
57023'06" EAST A DISTANCE OF 43.32 FEET TO THE TRUE POINT OF
BEGINNING.
SAID PORTION BEING VACATED CONTAINING 535 SQUARE FEET, MORE OR
LESS.
THE ABOVE DESCRIPTION BEING SHOWN ON THE
ATTACHED EXHIBIT "B" AND HEREBY BEING MADE A
PART HEREOF.
D: AASURVEY\7001.098\dwg\ROW
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