HomeMy WebLinkAboutItem 2B06/13/2024
Public Comment
Item 2B
06/13/2024
Public Comment
Item 2B
From:Rob Bernheimer
To:Christy Holstege
Subject:Serena Park
Date:Wednesday, June 5, 2024 2:17:08 PM
Attachments:PastedGraphic-8.tiff
Councilmember Holstege:
I’m reaching out to you regarding the Serena Park DA Amendment that will be on your
agenda June 13th. I represent the buyer, SunCal. The project is in Councilmember Garner’s
district and we met with her today.
SunCal previously purchased the Escena project. They immediately cleaned that property up
and retained a builder that has begun construction of its 1st phase. They are in the process of
recording a map on the next phase. SunCal has a demonstrated positive track record in Palm
Springs.
SunCal has accepted all of the recommendations from the Planning Commission except one.
Importantly, we have agreed to immediately clean up the property - clear the dead trees,
repair/replace the fences/gates to keep trespassers out, install cameras, routinely apply soil
stabilizer, etc. We have also agreed to have an arborist review the existing trees and follow
that recommendation for future removal/maintenance. Clearly Golden Sands is a mess and
SunCall has committed to cleaning that up right away.
The one item that SunCal cannot agree to is to record the phased Final Maps by certain dates.
SunCal will not be the builder. However, they have committed to getting each phase “shovel
ready” by the dates specified in the DA Amendment. The market will determine the timing of
when the permits are pulled. But SunCal will do everything it can to have each phase ready
and will maintain the property throughout the process.
We would be happy to meet with you (in person or virtually) to discuss this. However, we
know your time is valuable and this project is not in your district. If a meeting is not
necessary, please know we are here to answer any questions you may have.
Thank you. All of my contact information is below should you need anything.
Rob Bernheimer
Rob@RobBernheimer.com
45025 Manitou Drive, Suite 3
Indian Wells, CA 92210
(760) 360-7666 office
(760) 831-5455 mobile
06/13/2024
Public Comment
Item 2B
From:Teri McCoppin
To:City Clerk
Subject:Fwd: Serena Park Development Agreement Amendment Request
Date:Monday, June 10, 2024 12:03:22 PM
Attachments:Outlook-csc1ictv.png
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.
Please submit the attached for city council review prior to the 6/13 meeting regarding “Serena Park”
Sent from my iPhone
Begin forwarded message:
From: Teri McCoppin <terimccoppin@yahoo.com>Date: May 21, 2024 at 2:28:01 PM PDT
To: David Newell <David.Newell@palmspringsca.gov>
Cc: planning@palmspringsca.gov
Subject: Re: Serena Park Development Agreement Amendment Request
To Planning
I am a resident in PSCC (the neighborhood most impacted and in closest proximity to the Serena Park Project).
I do not believe that the proposal to amend the DA should be approved.
The amended DA would allow developer to pay the DA fee to the city over a 2 1/2 year period, with the first payment (of less than 21%) not due til June of 2025. Meaning developer could start
with construction 12 months before first payment due. Since the length of the original agreement has not changed, my neighborhood could be in a construction zone from now through 2038. We
have seen several different projects languishing for years in our city, so this not to be dismissed out of hand. Payment (or at least partial payment) of the DA fees, as in the original DA, has been
a safeguard for my community to not be in the middle of a construction site, for the 20 year period as agreed to.
It also concerns me that the EIR for this project dates from 2014. We have had numerous “only once in every 100 years” events as far as rainfall and storms since then that seem to be happening
on an ever more frequent basis, meaning the area’s streets are flooded much more frequently and with deeper impact than anyone could have foreseen in 2014. The impact of this development,
displacing land that has been used to mitigate these flooding effects, might have much more drastic consequences for my neighborhood than the report had projected.
The EIR report also concluded that the 3300 daily trips per day in and out of the 386 unit Serena development would not impact the community enough to warrant any additional traffic signs or
signals. It is hard to imagine that this additional traffic would not impact PSCC residents ability to get in and out of our neighborhood in a timely manner.
I am glad the Staff took the initiative to add the Maintenance and Dust Control Plan to the proposed change in DA, along with its section referring to the Default of Property Maintenance
Obligation. I know this has been an ongoing battle with the current owner, but I don’t see the monetary penalties written into the Default.
Lastly, I wanted to address the third vehicular entrance to the development being proposed as part of this amended agreement. What locations are being discussed, will it be for emergency
vehicles only, for use by construction trucks through the infrastructure timing, for use by construction throughout the (possibly 14 more) years of construction, or now a third entrance to be used
forevermore?
In closing, I am against moving forward with this amended DA for the Serena Park Project
Thank you for your consideration
Teri McCoppin
2545 N Whitewater Club Dr #C , PSCC
Sent from my iPad
On May 20, 2024, at 5:45 PM, David Newell <David.Newell@palmspringsca.gov> wrote:
Teri—
As requested, I'm providing links to the Wednesday night Planning Commission agenda and staff report for the Serena Park Development Agreement Amendment:
5/22 Planning Commission Agenda:
https://destinyhosted.com/agenda_publish.cfm?id=72567&mt=PLAN&vl=true&get_month=5&get_year=2024&dsp=ag&seq=1507
Serena Park Staff Report:
https://destinyhosted.com/palmsdocs/2024/PLAN/20240522_1508/4937%5FITEM%5F%232A%5F%2D%5FPC%5FCombined%5FPacket%5F5%2D22%2D24%5FDA%2D2024%2D0002.pdf
Feel free to contact me if you have questions.
Best,
David
DAVID A. NEWELL, AICP | ASSISTANT
DIRECTOR OF PLANNING
City of Palm Springs | Department
of Planning Services
3200 E. Tahquitz Canyon Way, Palm
Springs, CA 92262
t: 760.323.8245 | f: 760.322.8360
| david.newell@palmspringsca.gov
06/13/2024
Public Comment
Item 2B
From:Jarek Dallos
To:Planning; City Clerk
Cc:Christopher Hadwin; David Newell; Jane Garrison; Judy Deertrack; Brenda Fisher; Steve Braff; Katie Barrows
Subject:Comment Letter: Item 2B. - PNG 1, LLC ON BEHALF OF PS COUNTRY CLUB, LLC FOR AN AMENDMENT OF THE
DEVELOPMENT AGREEMENT FOR SERENA PARK – A RESIDENTIAL DEVELOPMENT CONSISTING OF 386
ATTACHED AND DETACHED RESIDENTIAL UNITS, STREETS, PRIVATE OPEN SPACE AND...
Date:Wednesday, June 12, 2024 1:56:30 PM
Attachments:EXHIBIT C_PUBLICATION_Development Agreement Manual_Institute for Local Govt (EXCERPTS 14 pp).pdf
EXHIBIT A_EXCERPTS_Attachment #3 to CCSR_Proposed Amended Development Agreement_PS Serena
Park.pdf
2024.06.10_Oswit Land Trust_Item 2B_Serena Park_Palm Springs City Council.docx.pdf
EXHIBIT D_PUBLICATION_Development Agreement Monitoring_Audit Reports_City of Austin, TX.pdf
EXHIBIT B_EXCERPTS_Attachment #7 to CCSR_First Amended and Restated Dev Agreement (Recorded May 6,
2024)_PS Serena Park.pdf
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.
Good afternoon Dear City of Palm Springs.
I am reaching out on behalf of Oswit Land Trust, to share with you a comment letter
regarding:
RE: PNG 1, LLC ON BEHALF OF PS COUNTRY CLUB, LLC FOR AN
AMENDMENT OF THE DEVELOPMENT AGREEMENT FOR SERENA PARK – A
RESIDENTIAL DEVELOPMENT CONSISTING OF 386 ATTACHED AND
DETACHED RESIDENTIAL UNITS, STREETS, PRIVATE OPEN SPACE AND
PUBLIC PARK ON 126 ACRES OF LAND LOCATED EAST OF SUNRISE WAY,
NORTH OF VERONA ROAD AND SOUTHWEST OF THE WHITEWATER RIVER
FLOODPLAIN WITHIN SECTION 1 AND 36 (CASE DA-2024-0002).
Kindly please confirm receipt and distribute the attached letter and exhibits to the City
Council.
Thank you,
- Jarek Dallos
--
ING. JAREK DALLOS (He/Him/His)
| Administrative Assistant for Executive Office & ACE Division
Website: www.OswitLandTrust.Org
Email: jarek@OswitLandTrust.Org
06/13/2024
Public Comment
Item 2B
ABOUT THE INSTITUTE FOR LOCAL SELF GOVERNMENT
This publication is a special project of the Institute for Local Self Government, which is the nonprofit
research arm of the League of California Cities. The Institute was founded in 1955 as an educational
organization to promote and strengthen the processes of local self government. The Institute’s mission is to
serve as a source of independent research and information that supports and improves the development of
public policy on behalf of California’s communities and cities.
The Institute’s work is concentrated in three areas:
• Land Use
• Fiscal Issues
• Public Confidence in Local Government
For more information about the Institute and its programs, please visit the Institute’s website at
www.ilsg.org .
ABOUT THE COMMUNITY LAND USE PROJECT
The Institute’s work in the land use area is known as the Community Land Use Project. The goal of this
effort is to assist local agencies in finding solutions to land and resource issues that appropriately balance
private and public interests in community and property. The project focuses primarily on an area of the law
known as “regulatory takings,” but the project also addresses other issues that pose significant challenges
for public agencies.
The Community Land Use Project is developing a number of resources —such as this publication—that are
designed to help local officials implement their land use programs. The project is grateful for the generous
support of the David and Lucile Packard Foundation and the League of California Cities.
EXHIBIT A
TO COMMENT LETTER / OSWIT LAND TRUST
Excerpts Only - 14 pages
“Institute for Local Self-Government -
Development Agreement Manual”
For Introduction to:
PALM SPRINGS CITY COUNCIL ITEM 2B
JUNE 13, 2024
RE: SERENA PARK SPECIFIC PLAN
CONSIDERATION OF AMENDMENT TO
FIRST AMENDED DEVELOPMENT
AGREEMENT
Exhibit C
Oswit Land Trust Comment Letter
06/13/2024
Public Comment
Item 2B
DEVELOPMENT AGREEMENT M ANUAL:
COLLABORATION IN P URSUIT
OF COMMUNITY INTERESTS
Prepared by David J. Larsen, City Attorney, Loomis; Berding & Weil, LLP
With Special Thanks to the Following Individuals
Who Contributed Their Time and Expertise to
This Manual:
William Curley
Attorney
Richards, Watson & Gershon
Craig Ewing
Director of Community Development
City of Belmont
Vince Bertoni
Planning Manager
City of Santa Clarita
Steven P. Rudolph
City Attorney
City of Folsom
Janet Ruggiero,
Director of Community Development
City of Citrus Heights
Linda Guillis
Community and Economic
Development Director
City of Moreno Valley
Peter Brown
City Attorney
City of Carpinteria
Tom Sullivan
Director of Community Development
City of Saratoga
Debra E. Corbett
City Attorney
City of Tracy
PRODUCTION & EDITING
+ JoAnne Speers + Kara Ueda + Charles Su mmerell + Meghan Sokol + Jude Hudson + Iolandé V. Argènt +
All final decisions about the content and formatting of this report were
made by the Institute for Local Self Government.
06/13/2024
Public Comment
Item 2B
THE ADVANTAGES AND
DISADVANTAGES OF
DEVELOPMENT
AGREEMENTS
Development agreements have three defining characteristics:
• They allow greater latitude than other methods of
approval to advance local land use policies in
sometimes new and creative ways;
• They allow public agencies greater flexibility in
imposing conditions and requirements on proposed
projects; and
• They afford project proponents greater assurance that
once approved, their projects can be built.
Although these characteristics can be advantageous, they can also present
challenges. The purpose of this chapter is to discuss potential advantages
and disadvantages of development agreements, from the perspective of
both the public agency and project proponent.
ADVANCING LAND USE POLICIES
Because development agreements are themselves ordinances, they may
supersede existing land use regulations as long as they are consistent with
the general plan and any applicable specific plan.5 As a result, they can
afford the public agency and project proponent greater latitude concerning
allowable land uses in a particular instance. However, there are potential
advantages and disadvantages associated with having this flexibility.
5 See Cal. Gov’t Code § 65867.5.
Advancing Land Use Policies.....11
Imposing Conditions..................14
Assuring Project Will Be Built19
Summary .....................................23
2
C HAPTER
06/13/2024
Public Comment
Item 2B
I NSTITUTE for L OCAL S ELF G OVERNMENT ü C OMMUNITY L AND U SE P ROJECT | 17
AVOIDING CONSTRAINTS AND UNCERTAINTIES
A public agency can avoid the types of constraints and uncertainties
described above by entering into development agreements, since the
project proponents agree to fees and requirements. Once the agreement
is executed, the project proponent has generally waived his or her right to
challenge the fairness or appropriateness of a particular requirement.
For example, the local agency can ask that the project proponent agree to
finance public facilities and improvements without the specter of a
regulatory takings claim. Similarly, the local agency may ask the project
proponent to construct a new school without fear that school facility-fee
limitations will be invoked. The project proponent must agree to such
requirements, of course, before they may become enforceable.
The local agency may also bargain for completion of facilities and
improvements at an earlier stage in the development process. This can
result in needed infrastructure and facilities being put in place prior to or
concurrently with the development, reducing the development’s impact on
existing facilities or services. Similarly, the project proponent may agree
to pay additional fees to protect the agency and existing residents from
any budgetary impacts associated with the development.
For facilities and infrastructure that are funded by multiple projects, the
development agreement process can provide a mechanism to ensure that
each project proponent pays its fair share in a timely manner.
The project-specificity of the development agreement process offers the
public agency the opportunity to design more tailored implementation
programs for its planning policies and objectives as they relate to the
proposed project. The process of negotiating the agreement can help the
agency identify and address issues relating to the project before the
agency provides final approval. The agency may also require that the
agreement include provisions dealing with identifiable contingencies
related to the proposed project.
Finally, the fact that the development agreement is recorded provides a
convenient mechanism for binding future owners to the requirements and
obligations created by the agreement.15
15 See Cal. Gov’t Code § 65868.5 (“ ... the burdens of the agreement shall be binding upon, and
the benefits of the agreement shall inure to, all successors in interest to the parties to the
agreement”).
L EGISLATIVE H ISTORY
OF D EVELOPMENT
A GREEMENT L AW
The Development Agreement Law
was enacted in 1979, in response to
the Avco Community Developers,
Inc. v. South Coast Regional
Commission decision. See 17 Cal.
3d 785 (1976).
The Avco case involved a large
development in Orange County,
some of which was in the coastal
zone. Under the newly enacted
Coastal Act, the developer had to
obtain a permit from the Coastal
Commission unless it had obtained
a building permit. The developer
had secured a final subdivision map
and a grading permit, but did not
have a building permit. T he
developer had already spent a great
deal of money on the site.
The court ruled that the developer’s
project was indeed subject to the
Coastal Act’s additional
requirements and restrictions,
reaffirming the rule that property
owners acquire a vested right to
complete construction only after
they have performed substantial
work and incurred substantial
liabilities in good faith reliance on a
permit issued by regulatory
authorities. Only at that point can a
project be completed free of new
restrictions.
The result in Avco created great
consternation in the development
community, which lobbied the
Legislature to create a mechanism
that would allow developers to
know earlier on in the process what
requirements would apply to their
projects. The development
agreement law is a result of this
effort.
06/13/2024
Public Comment
Item 2B
I NSTITUTE for L OCAL S ELF G OVERNMENT ü C OMMUNITY L AND U SE P ROJECT | 19
expensive public amenity, such as a school or park, in consideration of the
benefits the developer will receive from a development agreement.
As further dis cussed in Chapter 4, one way of avoiding this type of problem
is to discuss the parties’ expectations at the outset, as a prelude to
beginning negotiations. That allows each party to assess early on whether a
development agreement will meet each party’s ne eds.
ASSURING PROJECT CAN BE BUILT
One of the challenges project proponents face in the usual regulatory
process is that the project must meet the regulatory standards in effect at
each stage of the development process. This can result in a proposed
proje ct being subject to new regulations even after it has received final
approval, and even if the new regulations preclude or prohibit construction
of some or all of the project.
As a result, it can be difficult for a project proponent to know at the outset
what criteria the project must meet. It is not until the proponent’s right to
complete the project has “vested,” that he or she has the right to build the
project without concern that new regulations may apply.
Unforeseen regulatory changes (including those adopted by the voters
through the initiative process) can add time and expense to a proposed
project. Moreover, a proponent of a large project must typically invest
substantial amounts of time and money in the project before he or she
receives “vested rights” to complete the project as approved.
26 City of San Jose v. State of California , 45 Cal. App. 4th 1802, 53 Cal. Rptr. 2d 521 (6th Dist.
1996) rev. denied (1996).
W HEN D OES O NE A CQUIRE A “VESTED ” RIGHT TO P R OCEED WITH
D EVELOPMENT, FREE FROM A DDITIONAL R EGULATORY
R EQUIREMENTS ?
Ordinarily, a project proponent acquires a vested right to complete construction when the proponent has:
• Obtained all permits necessary for the proposed structure;
• Performed substantial work in good faith reliance upon those approvals; and
• Incurred substantial liabilities in good faith reliance upon those approvals. The proponent must, of
course, complete the work in accordance with the terms of the permit.26
A project proponent cannot acquire a vested right under an invalid building permit, even if substantial
expenditures have been made in good faith.26 The rights that vest through reliance on the building or other
permit cannot be greater than those specifically granted by the permit itself.26 For example, perfection of a
vested right for one phase of a multiphase project does not create a vested right to build subsequent phases .
06/13/2024
Public Comment
Item 2B
20 | D EVELOPMENT A GREEMENT M ANUAL
On the other hand, a project proponent who is a party to a development
agreement receives “vested rights” to complete the project as approved.
This occurs immediately upon execution of the agreement, by virtue of the
fact that a development agreement “freezes” applicable local land use
regulations with respect to the proposed project.27
POTENTIAL ADVANTAGES: FEWER SURPRISES AFTER
PROJECT APPROVAL
From a project proponent’s perspective, the added certainty associated with
receiving “vested rights” to construct a pr oposed project without concern
that new regulations may apply can be invaluable. It may be especially
important to a project proponent worried about a potential ballot measure or
a change in the governing body majority that could adversely affect the
proje ct. While development agreements are subject to voter referenda,28 an
opponent would have to file his or her submittal within 30 days after final
approval of the development agreement in order to preserve the right to put
the approval of the agreement on the ballot.29 Once the 30-day period is
over, the project proponent can safely assume that the project will not be
affected by future ballot measures.
There are limits to the degree of assurance that a public agency can offer.
For example, additional conditio ns may be imposed on the project if further
environmental analysis is needed under the California Environmental
Quality Act (CEQA). Also, a development agreement cannot prevent the
application of state or federal regulations, as further discussed below.30
Another advantage from the project proponent’s perspective is limiting the
potential for regulatory change. This can be helpful when the proponent
seeks financing. It can also be reassuring with respect to large projects that
have significant upfront costs.
POTENTIAL DISADVANTAGES: RULES OF ENGAGEMENT
ARE LOCKED IN
A development agreement can limit the public agency’s ability to respond to
a changing regulatory environment, precisely because it locks in the
27 See Cal. Gov’t Code § 65865.4.
28 See Cal. Gov’t Code § 65867.5.
29 See Cal. Elect Code § 9237.
30 See Cal. Gov’t Code § 65869.5.
06/13/2024
Public Comment
Item 2B
22 | D EVELOPMENT A GREEMENT M ANUAL
C OMPARISON OF T ENTATIVE M APS , VESTING T ENTATIVE M APS
AND D EVELOPMENT A GREEMENTS
Development agreements are one planning tool. This chart provides a side-by-side comparison of how development agreements
compare with tentative subdivision maps and vesting tentative maps.
Tentative Maps Vesting Tentative Maps Development Agreements
Description Tentative Subdivision Map
(or Tentative Map) – The
project proponent’s initial
proposal for subdividing land,
which is the local agency’s
main opportunity to set
conditions on the proposed
subdivision.
The point in time when a
project proponent has the
right to proceed without being
subject to changes in land use
regulations, typically when
the last permit necessary for
construction of a project
(usually a building permit) has
been issued and substantial
expenditures have been
incurred in reliance on the
permit . The concept of
vested rights is one of the
reasons it is important that
concerned citizens make their
views known as early as
possible in the land use
decision making process.
A legislatively -approved contract
between a jurisdiction and a person
having legal or equitable interest in
real property within the
jurisdiction (California
Government Code Section 65865
and following) that typically
"freezes" certain rules, regulations,
and policies applicable to a project
for a specified period of time,
usually in exchange for certain
concessions by the project
proponent.
Application of Conflicting
Local Rules in Future Yes
Only if necessary to prevent
situation dangerous to health
and safety
Depends on language in agreement
When Requirements Are
Locked In/Not Subject to
Change
No vested right even at the
final map stage
Police power requirements can
be changed at each stage of
the permitting process
Vested right conferred when
building permits issued and
substantial work completed in
reliance on those permits
When application is
“complete”
At execution of agreement, unless
agreement provides otherwise
Fees and Dedications Subject to statutory and
constitutional restrictions
Subject to statutory and
constitutional restrictions
Subject to mutual agreement
Phasing Allowed Allowed Allowed
Effect on Other Agencies’
Regulatory Prerogatives
Does not limit Does not limit Does not limit
Local Agency Procedures Agency must adopt Local agencies may adopt
procedures; otherwise, Map
Act governs
Local agencies must adopt
procedures upon request of
applicant
Processing
Mandatory — Local agencies
must accept application and
process it within statutory
time frames
Mandatory — Local agencies
must accept application and
process it within statutory
time frames
Discretionary — Local agencies
may chose to use or not
Duration Specified by statute, which
includes both automatic and
discretionary extensions
Specified by statute, which
includes bo th automatic and
discretionary extensions
Annual review required. County
development agreements are time-
limited if land is annexed or
incorporated (Government Code
section 65865.3)
Voter Review No — approval is an
adjudicatory act not subject to
referenda
No — approval is an
adjudicatory act not subject to
referenda
Yes — approval is a legislative act
subject to referenda
Time Limit for
Challenging
90 day statute of limitations 90 day statute of limitations 90 day statute of limitations
Governing Statutes Government Code sections
66410 to 66499.37
Government Code sections
66498.1 to 66498.9
Government Code sections 65864
to 65869.5
06/13/2024
Public Comment
Item 2B
28 | D EVELOPMENT A GREEMENT M ANUAL
PLANNING POLICIES AS A MECHANISM FOR DEFINING
PROJECT PROPONENT EXPECTATIONS
An agency’s planning documents, including its local development agreement
procedures, can provide an important source of guidance for project
proponents going into negotiations. By stating in the procedures that the
local agency is committed to using development agreements as a tool to
promote the community’s needs, the agency makes clear that it expects to
receive greater community benefits than it could otherwise achieve through
the land use regulatory process. This level of understanding can be helpful
in setting the proper tone, so both parties have realistic expectations going
into the negotiations.
Such an approach also may be helpful in responding to community concerns
that the community has not received adequate benefits in the past from
development agreements. These concerns may arise, especially when the
project proponent has an ongoing relationship with the public agency.
USES OF DEVELOPMENT AGREEMENTS
Local government agencies have successfully used development
agreements to facilitate:
• School, park and other facility funding;
• Affordable housing projects;
• Large -scale mixed use projects; and
• Multi-phase commercial projects.
Development agreements can also be a vehicle for addressing concerns
among developers about perceived adverse impacts of neighboring projects.
SUMMARY
Used judiciously, development agreements are a useful tool for achieving an
agency’s land use planning objectives. Well-articulated planning policies
36 Cal. Gov’t Code § 14045.
37 Cal. Gov’t Code §§ 65460.10, 65460.2.
38 Cal. Gov’t Code § 65913.5
D EVELOPMENT
A GREEMENTS AND
T RANSIT
Development agreements
may be used to implement
demonstration programs
that test the effectiveness of
increasing the density of
residential development in
close proximity to mass
transit stations.36 Local
agencies may also require
developers to enter into
development agreements to
implement density-bonus
programs in transit village
plans37 or within a half-mile
radius of mass transit
stations.38
THE REQUIREMENT OF “CONSISTENCY
WITH POLICIES” MAY DRIVE THE NEGOTIATING
PROCESS TOWARDS ID OF “PUBLIC BENEFITS”
06/13/2024
Public Comment
Item 2B
38 | D EVELOPMENT A GREEMENT M ANUAL
• Promotes the public health, safety, and general
welfare;
• Is just, reasonable, fair and equitable under the
circumstances facing the agency;63
• Has a positive effect on the orderly development of
property or the preservation of neighboring property
values; and
• Provides sufficient benefit to the community to justify
entering into the agreement.
GOVERNING BODY HEARING AND DECISION ON THE
DEVELOPMENT AGREEMENT
As discussed in Chapter 3, well-articulated planning policies and objectives
should increase the likelihood that the staff’s and planning commission’s
input to the development agreement negotiation process
produces a satisfactory agreement for the governing
body. Adoption of an interest-based negotiation
approach may also allow the governing body to
provide direction to negotiators early on in the
process in open session, consistent with the state’s
open meeting laws. 64
Well-conceived and up-to-date planning policies also
avoid the prospect of asking staff to negotiate in a
vacuum, with little or no immediate direction or
feedback from decisionmakers. This maximizes the
likelihood that the agreement presented for decision-
maker approval reflects their concerns and policy
direction. It minimizes the likelihood of having to
renegotiate the agreement from the dias. (The
downside of which, is inclusion of language in the
agreement which may have unintended
consequences or not fully protect the agency’s
interests.)
63 See generally Morrison Homes Corp. v. City of Pleasanton, 58 Cal. App. 3d 724 (1976)
(analyzing the “contracting away the police power” issue in the context of an annexation
agreement). See also Denio v. City of Huntington Beach, 22 Cal. 2d 589 (1943); Carruth v. City
of Madera , 233 Cal. App. 2d 688 (1965).
64 See generally Cal. Gov’t Code § 54950 and following (The Ralph M. Brown Act).
P RACTICE P OINTER
A development agreement
typically freezes regulatory
requirements in effect at the
time the agreement is
executed. For that reason, it
is helpful to collect all of
those regulatory documents
and file them with the
appro ved development
agreement. This avoids
confusion several years
afterwards as to what
regulatory requirements
apply.
Copies should also be
provided to the project
proponent.
06/13/2024
Public Comment
Item 2B
40 | D EVELOPMENT A GREEMENT M ANUAL
In cities and counties, failure to satisfy the publication requireme nt in a
timely manner prevents the ordinance from taking effect or being valid.70
AMENDING THE DEVELOPMENT
AGREEMENT
After a development agreement has been signed, it may be amended only
by mutual agreement of parties.71 Most development agreement procedures
require amendments that are initiated by the project proponent to go through
the same process as the initial application for the development agreement.
For local agency-initiated amendments, the procedures usually require
notice to the project proponent and provision of information about the
process that the agency will employ.
DEVELOPMENT AGREEMENTS AND
ACCOUNTABILITY
Fundamental to the concept of an enforceable agreement is the notion that
each party will do what it promises to do in the agreement. To underscore
that notion, the development agreement law requires local agencies to
include at least an annual review of the project proponent’s compliance
with the delineated responsibilities.72 The review must require the proponent
to demonstrate good faith compliance with the terms of the agreement.73 If
a local agency finds, based on substantial evidence, that such compliance
has not occurred, the agency may modify or terminate the agreement. 74
In addition, the development agreement law provides that the deve lopment
agreement is “enforceable by any party.”75 A development agreement
typically contains provisions specifying procedures for notice and
termination in the event of a default by either party.
70 Cal. Gov’t Code § 36933(b) (cities). Cf. Cal. Gov’t Code § 25124(c) (providing failure of
county clerk to publish means the ordinance does not take effect for 30 days).
71 See Cal. Gov’t Code § 65868.
72 See Cal. Gov’t Code § 65865.1.
73 See Cal. Gov’t Code § 65865.1.
74 See Cal. Gov’t Code § 65865.1.
75 See Cal. Gov’t Code § 65865.4.
P RACTICE P OINTER
Some agencies specify the agencies’
annual review procedures in the
agency’s ordinances and resolutions
relating to development agreements
Others specify the annual review
procedures in the development
agreement itself. The latter approach
makes the annual review process
part of the negotiations process as it
is the subject of negotiation and the
resolution of that negotiation
memorialized as a term of the
development agreement itself.
Other implementation strategies
include:
1. Assigning one person to
monitor agreement
performance.
2. Creating an implementation
matrix (cross-referencing the
section of the development
agreement, the obligation, the
trigger/timing, which local
agency department has lead
responsibility, and the
status).
Having a well-thought out
implementation strategy helps
ensure the agency gets the benefit of
its bargain.
The City could have defined by ordinance, by DA Agreement or by analysis
in the staff report what it considers good faith compliance to be and what the
thresholds of compliance are. Also, it should have (and still should) identify
not only what noncompliance consists of, but what the remedies are.
The City can define “Good Faith Compliance” and develop
“Performance Thresholds” (1) by Ordinance, (2) within the
terms of the Development Agreement, or (3) under an independent
Monitoring Plan for purposes of Annual Audits.
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52 | D EVELOPMENT A GREEMENT M ANUAL
regulations to the development—is one factor that the courts will evaluate if
the development agreement is challenged.86
It is generally a good idea to allow the parties to terminate the agreement
early in the event of a material breach. (See further discussion concerning
default, remedies, and termination, below.)
Note that development agreements for unincorporated territory within
cities’ sphere of influence must specify a timeframe within which the
annexation must occur.87 The agreement does not become operative until
the annexation occurs.88
REQUIRED CONTENTS
A development agreement must specify the:
• Permitted uses of the property;
• Density or intensity of use; and
• Maximum height and size of proposed buildings.89
These are also known as the developme nt plan. Because development
agreements can and are being used in a variety of applications, the required
content outlined above can be addressed more generically or more
specifically, depending on the goals of the parties and the degree to which
the absence of such specification in the agreement means that the agency’s
regulations apply.90 As a matter of draftsmanship and avoiding a basis for
challenge, however, it is useful to address each of the required content
elements. 91
For example, the permitted uses can be generically established by reference
to a zoning category, such as retail commercial, or specifically established
86 See generally Santa Margarita Area Residents Together v. San Luis Obispo County Board of
Supervisors, 84 Cal. App. 4th 221 (2000) (suggesting such freezes cannot be of unlimited
duration and upholding a zoning freeze for five years)
87 See Cal. Gov’t Code § 65865(b).
88 See Cal. Gov’t Code § 65865(b).
89 Cal. Gov’t Code § 65865.2 (contents of development agreements).
90 See generally Santa Margarita Area Residents Together v. San Luis Obispo County Board of
Supervisors, 84 Cal. App. 4th 221 (2000) (finding the fact that the agreement did not mention
maximum height and size of proposed buildings was not fatal because the agreement was subject
to the county regulations of these variables).
91 See generally Santa Margarita Area Residents Together v. San Luis Obispo County Board of
Supervisors, 84 Cal. App. 4th 221 (2000) (adopting a “substantial compliance” approach to
these required content elements).
P RACTICE P OINTER
A good rule of thumb for
the term of a development
agreement is five to ten
years. Any longer may
constrain a local agency’s
ability to impose new
regulatory requirements to
respond to changing needs
and issues in the
community.
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by reference to a site plan detailing every aspect of a proposed project.
Likewise, the density and intensity can be generically designated by using a
range of possibilities, (six to ten units per acre, for example), or specifically
designated (two units per acre). Similarly, the requirement that the
maximum size and height of proposed buildings be included does not mean
that every de velopment agreement must propose buildings.
PUBLIC BENEFITS
Another required element of a development agreement is the provision for
reservation or dedication of land for a public purpose.92 A “permissive
element” refers to the terms and conditions relatin g to the project
proponent’s financing of necessary public facilities and the subsequent
reimbursement of the project proponent for its non-pro rata share over time.
93
In fact, it is a good idea to specify all of the public benefits that will result
from the agreement, following a recital explaining that the project proponent
recognizes that he or she is being afforded greater latitude in exchange for
agreeing to contribute greater public benefits than could otherwise be
required, and that the project proponent does so freely and with full
knowledge and consent.
ADDRESSING A POTENTIAL POLICE POWER CHALLENGE
Early on, commentators speculated whether adopting a development
agreement might constitute an illegal “contracting away” of an agency’s
police powers, which, in this context, refers to a local agency’s governing
powers. “Police” derives from the Greek word polis, which means city.
Cities and counties typically obtain their police powers through the state
Constitution.94
The California Constitution says, for example: “A county or city may make
and enforce within its limits all local, police, sanitary, and other ordinances
and regulations not in conflict with general laws.”95 These powers afford
the local agency latitude in dealing with issues that are local in nature and
have not been addressed by the state legislature.
92 Cal. Gov’t Code § 65865.2.
93 See generally Santa Marg arita Area Residents Together v. San Luis Obispo County Board of
Supervisors, 84 Cal. App. 4th 221 (2000) (finding the fact that the agreement did not mention
maximum height and size of proposed buildings was not fatal because the agreement was subject
to county regulations of these variables).
94 See Cal. Const. Art. XI, §7.
95 Cal. Const. art. XI, § 7.
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Accordingly, it is a good idea for the drafters to include a provision in the
development agreement explaining the extent to which the property will
continue to be subject to the entity’s zoning rules, regulations and policies,
as well as a provision explicitly reserving the entity’s police powers unto
itself, except as otherwise provided in the agreement.
RECOVERY OF COSTS
Depending on the nature of the project, negotiating a development
agreement can involve significant costs for the public agency in the form of
staff time and legal fees. The agency may want to provide for the recovery
of some or all of those costs, either in its local procedures (as part of the
cost of processing a development agreement) or as a term of the
agreement itself. If provided for in the agency’s local procedures, the
agency will want to ensure that it does not assess the project proponent
more than its actual costs. One way is to establish an hourly rate and
record the staff’s time spent working on the project.
WHICH REGULATIONS ARE FROZEN?
Three drafting considerations affect which local land use rules and
regulations will apply under the terms and conditions of the development
agreement.
First, state law says that unless the agreement provides otherwise (see
sidebar at right), the rules and land use policies in effect when the
development agreement is adopted will apply to the project. The project
proponent will be inclined to want language to the effect that the local
agency is not allowed to apply rules or land use policies that would
effectively nullify its prior approval of the project. In turn, the agency’s
attorney will want language that confirms the statute allows the agency to
apply new rules in the future, as long as they are not in conflict with the
rules and regulations that were in place when the agreement was adopted.
Second, the attorneys need to decide what language to use in the event the
parties agree to allow land uses that are inconsiste nt with the otherwise
applicable zoning requirements in existence at the time the development
agreement was negotiated. One approach is to include language saying the
then-existing zoning ordinance governs, but only to the extent it is not
inconsistent wit h any provisions of the agreement. Depending on the
circumstances, the agency attorney may prefer to actually amend the
zoning ordinance so that it is consistent with the development agreement, in
order to allow other projects to request that zoning in the future.
P OSSIBLE
E XCLUSIONS FROM
THE F REEZE
Local agencies may wish to
discuss retaining their
discretion to apply changes to
the following components of a
development agreement:
• Impact fees;
• Uniform codes;
• Processing fees; and
• Procedural regulations.
New and Compatible
Regulations that apply
should be identified.
Regulations that conflict
with DA protections should
be identified.
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G LOSSARY OF K EY T ERMS (CONTINUED ),
Incorporation Of Recitals: generally states that the recitals which precede the “now therefore” clause are
incorporated into the agreement itself.
Insurance: sets forth types and amounts of insurance that the developer is to provide as security for the hold
harmless and indenmnity requirements
Jurisdiction And Venue: identifies the county in which any litigation should be filed and that the interpretation,
validity, and enforcement of the agreement shall be governed by California law
Liquidated Damages: identifies circumstances which would limit remedies against the agency to specific performance
(no ability to receive money damages); under some circumstances, liquidated damages clauses may protect the agency
from upside risks associated with damages awards. There may be instances in which the agency desires liquidated
damages if developer fails to perform (such as failure to dedicate property
Milestones: see Phasing
Notices: describes where and how notices required in the agreement are to be sent
Operating Memorandum: describes instances in which formal amendment to agreement is not needed to implement
the agreement such as minor refinements and/or clarifications; should be up to agency’s sole discretion to determine
whether amendment or “Operating Memorandum” is appropriate
Parties To The Agreement: identifies the persons having “legal or equitable interest” in the property
Phasing Of Development: describes the “triggers” or “milestones” of the project; may also be known as the
“development plan”; on larger, phased projects, it may be useful to include “milestone” requirements so the agency can
terminate the agreement if phases have not been completed within a specified time frame
Private Undertaking: identifies that the project is a private development and there is no partnership, joint venture,
or other association of any kind between the developer and the agency
Project And Property Subject To This Agreement: describes the project name, street address and references a legal
description of the property (generally an exhibit)
Protest Rights: provides for the developer to waive protest rights, and releases the agency from any claims arising out
of the calculation, allocation, and use of development mitigation fees (AB 1600 fees)
Public Benefits: this provision is a required element of a development agreement related to the reservation or
dedication of land for a public purpose; a permissive element is the terms and conditions relating to the project
financing of necessary public facilities and the subsequent reimbursement for the developer’s non-pro rata share over
time, and generally includes a description of the public benefits that will result from the agreement, following a recital
explaining that the developer recognizes that greater latitude is provided in exchange for agreeing to contribute greater
public benefits than could otherwise be required.
Recitals: describes the parties to the agreement; also describes applications and hearing process as well as CEQA
review (for example: development agreement application number, general plan amendment application number, type of
CEQA review done (if EIR gives state clearinghouse number), also identifies dates of public hearings before planning
commission and agency; many development agreements begin with a recital explaining the positive effects of entering
into a development agreement, and that the agreement is entered into pursuant to the state development agreement law; a
recital may address contingencies that will delay the effective date of the agreement, such as the need for annexation of
the property
Recordation: implements state law requirement which requires the agreement to be recorded
06/13/2024
Public Comment
Item 2B
ATTACHMENT #3
Exhibit A
Oswit Land Trust Comment Letter
Attachment #3 Proposed Development Agreement
Serena Park
Item 2B
Palm Springs City Council
June 13, 2024
EXCERPTS
TextTextTextTextText
06/13/2024
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Item 2B
55575.18145\42234823.3
-1 -
RECORDING REQUESTED BY:
CITY OF PALM SPRINGS
AND WHEN RECORDED MAIL TO:
CITY OF PALM SPRINGS
OFFICE OF THE CITY CLERK
3200 E. TAHQUITZ CANYON WAY
PALM SPRINGS, CA 92262
SPACE ABOVE FOR RECORDER’S USE ONLY
Pursuant to Government Code Section 6103, recording fees shall not apply
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF PALM SPRINGS
AND
PS COUNTRY CLUB, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
AND
SERENA 386, LLC, A CALIFORNIA LIMITED LIABILITY
COMPANY
FOR
SERENA PARK PROJECT
CASE NO. 5.1327, PDD-366, TTM36691
THIS AREA FOR
RECORDER’S
There is no clause incorporating the previous protections from
Amended Agreement 2021! The original DA specified the in lieu
fees would be applied to open space preservation.
Palm Springs Serena Park Project
City Council Agenda - June 13, 2024
Proposed 1st Amendment to the “First Amended
Development Agreement (2021)” for Serena Park
APPENDIX 3 - Item 2B, City Council Staff Report June 13, 2024
NOTATION: SERIOUS AMBIGUITY OR CONFLICT IN CLAUSE 1.01 AND CLAUSE 4.06.07
ON WHETHER THE PROVISIONS OF THE FIRST AMENDED AND RESTATED
DEVELOPMENT AGREEMENT ARE INCORPORATED INTO THE PROPOSED DA WHERE
THEY DO NOT CONFLICT, INCLUDING SPECIFIED USES OF IN-LIEU FEES
UNDER GENERAL PLAN POLICIES LU 2.2 IN EFFECT AND FROZEN AT DATE OF ENACTMENT.
06/13/2024
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55575.18145\42234823.3
-2 -
USE ONLY
FIRST AMENDMENT TO THE
FIRST AMENDED AND
RESTATED
DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED
DEVELOPMENT AGREEMENT (this "Amendment") is entered into by and between the
City of Palm Springs, a California Charter City and municipal corporation, (“City”), PS
Country Club, LLC, a California Limited Liability Company (“PS Country Club”), and
Serena 386, LLC, a California Limited Liability Company (“Serena 386” or “Developer”),
pursuant to California Government Code § 65864 et seq.
RECITALS
A.First Amended and Restated Development Agreement. On October 14,
2021, the City approved Agreement No. A9378, the First Amended and Restated
Development Agreement between the City and PS Country Club, later executed by both
parties (“Development Agreement”). The Development Agreement amended and
restated a previous development agreement between the Parties.
B.In 2022, the City declared PS Country Club to be in default of the
Development Agreement.
C.PS Country Club is in escrow to sell the development to SERENA
386/Developer. SERENA 386/Developer will not consummate the transaction without the
City’s approval of this Amendment.
D.The City’s approval of this Amendment is contingent upon the acquisition of
the project by SERENA 386/Developer. In such event:
1.City hereby approves the assignment of the Development
Agreement to SERENA 386/Developer. Upon close of escrow, SERENA 386 shall
assume all obligations of “Developer” pursuant to the Development Agreement, as
amended.
2.City and SERENA 386/Developer intend to modify and restate all
maintenance obligations concerning the Property while the Property is owned by
Developer. Any and all prior oral or written commitments by PS Country Club to maintain
the Property, including but not limited to that certain Landscape Ground Maintenance
Agreement dated December 12, 2012, and any settlement agreement between the
parties, are hereby terminated and replaced with the maintenance requirements
contained herein.
PSMO DA
Who can
be applicant?
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55575.18145\42234823.3
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H.Planning Commission – Council Findings. The approval of this Amendment is
made pursuant to findings by the Planning Commission and the Council that this
Development Agreement:
a.Is consistent with the objectives, policies, general land uses and programs
specified in the general plan and any applicable specific plan;
b.Is compatible with the uses authorized in, and the regulations prescribed
for, the land use district in which the real property is located;
c. Is in conformity with public convenience, general welfare and good land use
practice;
d.Will not be detrimental to the health, safety and general welfare;
e.Will not adversely affect the orderly development of property or the
preservation of property values.
AMENDMENT
NOW, THEREFORE, in consideration of the promises, covenants, and provisions
set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties
agree as follows:
ARTICLE 1. DEVELOPMENT AGREEMENT.
Section 1.01. Development Agreement. All terms and definitions contained within
the Development Agreement shall apply in this Amendment and remain in full force and
effect unless specifically amended in this Amendment.
ARTICLE 2. INCORPORATION OF RECITALS.
Section 2.01. Recitals. The Recitals set forth above, and the introductory paragraph
preceding the Recitals, are hereby incorporated into this Amendment as if set forth herein
in full.
ARTICLE 3. EFFECTIVE DATE
Section 3.01. Effective Date of this Amendment. This Amendment shall become
effective as of the date PS Country Club sells the project to Developer (i.e. the close of
escrow) (the “Amendment Effective Date”).
ARTICLE 4. AMENDMENTS TO THE DEVELOPMENT AGREEMENT.
Section 4.01. Development Agreement Fee. Section 4.03 e. of the Development
Agreement is hereby deleted and replaced as follows:
“e. The Development Agreement Fee (“DA Fee”) was established at
Three Million Dollars ($3,000,000) in the Development Agreement. In 2021,
Developer paid Five Hundred Thousand Dollars ($500,000) towards the DA Fee. The
balance of the DA Fee of Two Million Five Hundred Thousand Dollars ($2,500,000)
It becomes
effective when
recorded
Is Section 1.01 the incorporation clause to the
existing “First Amended and Restated Serena Park
Development Agreement recorded on
May 6, 2024?” Recomm. greater specificity
in language of Section 1.01 herein.
GC 65868.5
10 Day Req.
See Also:
GC 36933
for effectiveness
upon publication.
NOTE: THIS CLAUSE CONFLICTS
WITH SECTION 4.06.07 HEREIN
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Section 64.06.04. Construction. Each reference in this Amendment to
this Amendment or any of the Project Approvals shall be deemed to refer to the
Amendment or the Project Approvals as they may be amended from time to time, whether
or not the particular reference refers to such possible amendment. This Amendment has
been reviewed and revised by legal counsel for City, PS Country Club and Developer,
respectively, and no presumption or rule that ambiguities shall be construed against the
drafting party shall apply to the interpretation or enforcement of this Amendment.
Section 64.06.05. Other Miscellaneous Terms. The singular shall
include the plural; the masculine gender shall include the feminine; “shall” is mandatory;
“may” is permissive. If there is more than one signer of this Amendment, the signer
obligations are joint and several.
Section 64.06.06. Covenants Running with the Land. All of the
provisions contained in this Amendment shall constitute covenants or servitudes which
shall run with the land comprising the Project Site and the burdens and benefits hereof
shall be binding upon and inure to the benefit of the parties and their respective heirs,
successors in interest, transferees and assignees, representatives, lessees, and all other
persons acquiring all or a portion of the Project or the Project Site, or any interest therein,
whether by operation of law or in any manner whatsoever. All of the provisions contained
in this Amendment shall be enforceable as equitable servitudes and shall constitute
covenants running with the land pursuant to California law including, without limitation,
Civil Code Section 1468.
Section 64.06.07. Entire Agreement, Counterparts and Exhibits. This
Amendment is executed in duplicate, each of which is deemed to be an original. This
Amendment consists of 9 pages and two exhibits which constitute, except for the
Development Agreement, the full, final and exclusive understanding and amendment to
the Development Agreement, and supersedes all negotiations or previous agreements of
the parties with respect to all or any part of the subject matter hereof.
Section 64.06.08. Waiver. Any waivers of the provisions of this
Amendment or any breach of covenants or conditions contained in this Amendment shall
be effective only if in writing and signed by the appropriate authorities of City and
Developer. A waiver of one provision or breach shall not be considered as a continuing
waiver, shall not constitute a waiver of any other conditions or covenants and shall not
operate to bar or prevent the other party from declaring a forfeiture or exercising its rights
for any succeeding breach of either the same or other condition or covenant.
Section 64.06.09. Recordation of Development Agreement. No later
than thirty (30) days after the Amendment Effective Date, the City Clerk shall record an
executed copy of this Amendment in the Official Records of the County of Riverside.
Section 64.06.10. No Third Party Beneficiaries. No person or entity
shall be deemed to be a third party beneficiary hereof and nothing in this Agreement
(either express or implied) is intended to confer upon any person or entity, other than City,
GC requires
10 days
GC 65858.5
THIS CLAUSE
CONFLICTS
WITH
SECTION 1.01
HEREIN
06/13/2024
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Item 2B
June 11, 2024
ONE-SHEET INTRODUCTION
URGENCY ISSUE
TO THE HONORABLE CITY COUNCIL
COMMENT LETTER ON SERENA PARK
SUBMITTED BY: OSWIT LAND TRUST, 501 (c)(3)
Palm Springs, CA
Oswit Land Trust has attended closely to the resolution of the Development Agreement (currently in
default) between the City of Palm Springs and the owner of Serena Park. Our concern is a prominent risk
the City is vacating the legal and factual foundation for ‘in-lieu’ fees. A significant public harm will result
if not corrected. This risk is an illegal diversion of targeted funds for open space acquisition into another,
undefined use.
This is a “call-out” to the city of Palm Springs because we feel the staff report and recommendations of
the Planning Commission contain a critical oversight that the City Council may not recognize and act
upon.
The current, active, and recorded Development Agreement (Attachment #7) clearly and unambiguously
provides that all ‘in-lieu fees” be applied for open space acquisition.(Section 4.03(e)) at page 56 of the
City Council Staff Report.This language was inserted after the City Council reviewed and determined
that Land Use Policy 2.2 created this specific obligation, and the City Council memorialized this into their
adoption of the original agreement, finally recorded May 6, 2024. The proposed Amendment under
consideration on June 13
th did not clearly incorporate that language leaving an uncomfortable ambiguity.
We are asking for complete clarification that the $3,700,000 is obligated to open space acquisition of
funds. Conversations with staff indicate the City’s position is that there are options on use of the funds,
including use for housing. This could not be correct.
The reason the funds are targeted is well-documented in Section 4.03(e) – the “open space acquisition”
fees (exactions) are to compensate for the transfer of residential density from another parcel onto
Serena Park. In compensation for this transfer of density, the City negotiated under Land Use Policy 2.2
(specifically!) that the loss of open space be mitigated through payments.
Our request is that the City Council make a clear determination based upon the language of Attachment
#7 and provide that the amended agreement (Attachment #3) incorporate all legal responsibilities for
the use of the in-lieu fees so there is no misunderstanding.
Adhering to the original application of law and intent of the decision makers is critical for Development
Agreements because their enforcement can be over a long period of years. In fact, this amendment, if
passed, will have a total term of 20 years. Monitoring and annual compliance review are required.
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Item 2B
The Honorable Members of the City Council
Palm Springs, CA
ATTN:planning@palmspringsca.gov
Christopher Hadwin, Director of Planning at Christopher.Hadwin@palmspringsca.gov
David Newell, Planner at David.Newell@palmspringsca.gov
Re:Item 2B. PNG 1, LLC ON BEHALF OF PS COUNTRY CLUB, LLC FOR AN
AMENDMENT OF THE DEVELOPMENT AGREEMENT FOR SERENA PARK – A
RESIDENTIAL DEVELOPMENT CONSISTING OF 386 ATTACHED AND DETACHED
RESIDENTIAL UNITS, STREETS, PRIVATE OPEN SPACE AND PUBLIC PARK ON
126 ACRES OF LAND LOCATED EAST OF SUNRISE WAY, NORTH OF VERONA
ROAD AND SOUTHWEST OF THE WHITEWATER RIVER FLOODPLAIN WITHIN
SECTION 1 AND 36 (CASE DA-2024-0002)
STAFF RECOMMENDATION:
1. Open the public hearing and receive public testimony.
2. Waive the reading of text in its entirety, and introduce for first reading an ordinance entitled,
“AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING
SECTION 94.08.09 OF THE PALM SPRINGS ZONING CODE AND APPROVING A DEVELOPMENT
AGREEMENT AMENDMENT WITH PS COUNTRY CLUB, LLC, RELATED TO THE SERENA PARK
PROJECT PERFORMANCE SCHEDULE FOR CONSTRUCTION, THE DEVELOPMENT AGREEMENT FEE
PAYMENT DATE, AND OTHER MINOR REVISIONS RELATED TO THE CONVERSION OF THE PALM
SPRINGS COUNTRY CLUB GOLF COURSE INTO 386 RESIDENTIAL UNITS LOCATED NORTH OF
VERONA ROAD, EAST OF SUNRISE WAY AND SOUTHWEST OF THE WHITEWATER RIVER WASH
(CASE DA-2024-0002).”
3. Authorize the City Manager to execute the First Amendment to the First Amended and Restated
Development Agreement.
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To Whom It May Concern:
Oswit Land Trust is a 501C3 non-profit land conservancy dedicated to preserving critical habitat for
wildlife corridors and sensitive species. We achieve our goals through the acquisition of land and
advocacy. We are a proud member of the Land Trust Alliance and have over 3,000 active members who
are residents within the Coachella Valley and beyond.
We wish to express our gratitude to the members of the City Council for ongoing efforts to achieve a
healthy balance between development pressures and a fragile ecosystem that is seeing increasing
challenges to biodiversity through fragmentation and stress on natural systems.
Serena Park has our attention because it lies within a windy and sand-exposed part of the city recently
stressed from the silt deposits and wind increases that followed Tropical Storm Hilary. It is, likewise,
close to the watercourses of Whitewater Channel. This project also began as a Golf Course Conversion,
prior to passage of the current ordinance protections. These land conversions, and the opportunities
they present, are one of the primary missions of Oswit Land Trust. The Developer’s default of payments
gave the City of Palm Springs the option of “reversion to acreage” on nullifying its subdivision of lands,
and we also assume that regardless of a change in land use designation to “Low Density Residential”
from “Open Space Recreation and Parks,” the city can legislatively change back to Open Space. ‘
Should these options not be exercised, at the very least Oswit Land Trust strongly advocates for the
proper and legal use of the $3.2 million in-lieu fee towards open space acquisition, as is provided in the
existing agreement, under Section 4.03 (e). Our position is based upon the following:
(1) The essence of a Development Agreement is to create vested rights in a Developer to suspend
the operation of all changes in law, policy, or regulations that occur in what can be a long
timeline between execution of the Development Agreement and “commencement of
construction” on each phase of a complex project. Without a Development Agreement, the risk
to the landowner (developer) is considerable that regulations, policies, and conditions will
change, become applicable to the pending project, and the Developer is exposed to significant
expense and even invalidation of the project. This negotiating environment is exactly where
cities are allowed to work out valuable “trade-offs” in public benefits that otherwise could not
be charged to the Developer. The City worked out a fair exchange in Serena Park, using its
General Plan Policies (as the law requires), and explicitly provided in the language of the
Development Agreement that $3,000,000 of in lieu fees would be applied to “acquisition of
open space”under General Plan Land Use Policy 2.2.(Section 4.03(e)).Findings supported
that conclusion in the adopted Resolution, and the evaluation of impacts to the changing land
use classification from open space to residential densities would have been identified and
mitigated in the Certified EIR. This arrangement was Section 4.03(e)of the recorded First
Amended and Restated Development Agreement (Attachment #7).The Agreement is an
ordinance and changes the basic land use designation and laws of the city, resulting in vested
and invaluable land use rights to the owner. In the community interest, the public entitlements
are recorded and likewise vest as public rights, although they may be subject to renegotiation.
But here, there has not been a renegotiation of public benefits; in fact, the Developer obligation
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Item 2B
has increased by $700,000. The existing development agreement language that implements
Land Use Policy 2.2 is as follows:
“D. Conversion of Open Space - Parks/Recreation Land. The Developer
acknowledges the Project Site is currently designated as "Open Space -
Parks/Recreation" in the City's adopted General Plan and is zoned as "Open
Space" and is therefore subject to the City's Land Use Policy LU2.2 for the
conversion of open space to developable areas. The Parties acknowledge the
Developer shall cooperate with the City to secure the replacement of converted
open space areas on the Project Site through the use of density transfer of
property designated for residential development within the City.”First Amended
and Restated Development Agreement, Recorded May 6, 2024, page 52, City
Council Staff Report.
Section 4.03(e) Public benefits provided by Developer. . . . .
e. Payment of Development Agreement Fee over and above the fees referred to
in paragraph 4.02, above, to be used by the City for acquisition of open space for
the purposes of Developer's compliance with the City's General Plan Land Use
Policy 2.2 in generating land use density for the subject property. The
Development Agreement Fee shall be Three Million Dollars ($3,000,000.00) paid
to City, including Five Hundred Thousand Dollars ($500 ,000) due no later than
November 1, 2021, and the remainder of Two Million, Five Hundred Thousand
Dollars ($2,500,000) due no later than November 1, 2022. . . . .First Amended
and Restated Development Agreement, Recorded May 6, 2024, page 56, City
Council Staff Report.
(2) The legal findings used to adopt the existing Development Agreement (Ordinance May 6, 2024)
required a finding of consistency with the City’s General Plan in the year of its adoption (2016),
extended once again in the later “Amended and Restated” Development Agreement. The City
negotiated and extracted the benefits based upon an assessment of community needs stemming
from application of General Plan Land Use Policy 2.2 overtly to satisfy “acquisition of open
space.” The land use policy was implemented through the Development Agreement Ordinance
(PSMO 94.08.00) and CEQA assessment. The certified EIR should reflect the in-lieu obligation as
mitigation of open space under the original land use classification of “General Plan Open Space,
Parks and Recreation,”with monitoring and enforcement obligations. Proper use of funds to
mitigate open space loss implements CEQA’s legal requirements.
(3) Oswit Land Trust recommends that the City Council develop appropriate ordinances to
implement its General Plan Open Space priorities and funding mechanisms, and commence
4
06/13/2024
Public Comment
Item 2B
Scoping Sessions with the public on options, opportunities, and funding for open space
acquisition.
(4) Conflicting Language: The proposed Amended Development Agreement under consideration by
the City Council at today’s hearing (Attachment #3) has two sections whose language appears to
be ambiguous at their best interpretation, and seriously in conflict at their worst. Either scenario
is disturbing because these provisions determine whether the agreement currently in effect is
incorporated or abandoned, and whether LU 2.2 open space acquisition policies are
implemented.
(5) Here is a reading of the conflicting sections from the proposed Development Agreement
(Attachment #3). We ask these ambiguities be immediately corrected:
“Section 1.01. Development Agreement.All terms and definitions contained
within the Development Agreement shall apply in this Amendment and remain
in full force and effect unless specifically amended in this Amendment.Page 17,
City Council Staff Report [Note: All terms within “which” development
agreement?]
“Section 4.06.07.Entire Agreement, Counterparts and Exhibits. This
Amendment is executed in duplicate, each of which is deemed to be an original.
This Amendment consists of 9 pages and two exhibits which constitute,except
for the Development Agreement, [emphasis added]the full, final and exclusive
understanding and amendment to the Development Agreement and supersedes
all negotiations or previous agreements of the parties with respect to all or any
part of the subject matter hereof.”Page 21, City Council Staff Report [Note:
What does “except for the Development Agreement” mean? Either the
proposed amendment is the full and final and exclusive understanding, or it is
not. It would not read “it is the full and final except for…”]
(6) The ILG Advisory Manual for Development Agreements at page 52 (Exhibit C) states that a
reasonable term for “freezing regulations” for a developer is between five to ten years. Serena
Park was negotiated in 2016 (eight years) and is asking for twenty more years;twenty-eight (28)
years total. We ask the City Council to consider applying the recommended range of years from
the Institute for Local Self-Government (ILG) on Development Agreements. The City would not
want to encourage “favoritism” towards specific developers who live “outside” updated
regulatory requirements imposed upon the remainder of the industry.
5
06/13/2024
Public Comment
Item 2B
(7) Oswit Land Trust has attached Exhibit C and Exhibit D to this comment letter. Exhibit C
represents the legal and planning publication that instructs California cities on “best practices”
and “legal compliance.” Exhibit C is the Development Agreement Manual published by the
California Institute of Local Self-Government (ILG).Its provisions instruct California cities and
counties thoroughly on the development agreement process of (1) attending to and defining
community needs; (2) substantiating needs through careful attendance to general plan policies
and programs reflected in FINDINGS, and (3) enforcing the public obligations through required
annual reviews, including Monitoring and Compliance Reports, and Public Audits.Exhibit D is a
“best practice”Audit Report and Development Agreement Monitoring Report by the City of
Austin, Texas. The Audit Report was included because its detail, complexity, and relationship to
the budget immediately show that negotiation of “public benefits” is not shifting sand, but
serious “policy implementation”and must tie down into full-scale tracking and compliance, just
as cities are required to fund and implement public work projects, transportation, and
infrastructure. The City of Austin Report audited 21 Development Agreements and collected $69
million in incentive payments while reporting compliance with 82% of its contract obligations.
We felt the recommendations to City Council did not emphasize adherence to general plan
standards (except in a highly generalized sense), the need for community consultation on public
benefit negotiations, and ultimate accountability back to the public over time on negotiated
public benefits. Exhibits C and D deal with timelines, objectives, and reporting so that
intervening years and shifting priorities do not unfairly rob the general public of its negotiated
benefits.
Thank you as always for your dedicated service to the community of Palm Springs.
With regard,
Brenda Fisher
Oswit Land Trust, Land Manager
ATTACHMENTS:
6
06/13/2024
Public Comment
Item 2B
EXHIBIT A – Attachment #3 to CCSR Proposed Amended Development Agreement
EXHIBIT B – Attachment #7 to CCSR First Amended and Restated Development Agreement
EXHIBIT C – Excerpts from “Development Agreement Manual,”ILG (14 pp)
EXHIBIT D – Publication, “Development Agreement Monitoring, Audit Reports,” City of Austin
7
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Public Comment
Item 2B
Development Agreements
Monitoring
Audit Report
February 2017
City of Austin
Office of the City Auditor
The City’s monitoring generally ensures that businesses comply with contractual
requirements prior to releasing development incentives. The City made 11 incentive
payments to businesses in calendar years 2014 through 2016. All payments were made
after the Economic Development Department verified compliance with the contract terms
and an independent reviewer confirmed the Department’s results. In 82% of the compliance
areas selected for review, the Department performed a thorough review. However, the
Department’s review of three compliance areas was limited. Additional documentation
would provide a stronger basis to ensure compliance.
Exhibit D
Oswit Land Trust Comment Letter
Item 2B
Serena Park
Palm Springs City Council
June 13, 2024
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 2 Office of the City Auditor2Office of the City Auditor
Background
Objective
Contents
The objective of the audit was to determine if businesses and the City
comply with contractual requirements of development agreements.
Objective and Background 2
What We Found 3
Recommendations and Management Response 5
Scope and Methodology 11
The City uses economic development agreements to support job creation
and economic growth through incentives to businesses. Since 2003, the
City has entered into 21 economic development agreements. When we
began this audit, the City had active economic development agreements
with eight business entities, as shown in Exhibit 1. Since that time, one
entity has terminated the agreement leaving seven active agreements.
Texas Local Government Code authorizes municipalities to offer incentives
to promote economic development. The agreements contain performance-
based requirements that businesses need to meet in order to receive
incentives from the City.
The City’s Economic Development Department oversees the City’s
incentive programs. These incentives can be a refund of a portion of
property taxes paid by the business or a “per job” payment to businesses
by the City for projects that are not capital intensive.
Chapter 380 of the Texas Local
Government Code authorizes
municipalities to offer incentives to
promote economic development.
Exhibit 1: Business Investments and Payments to Businesses
SOURCE: Economic Development Department, October 2016
NOTE: The City’s economic development agreement with the Domain did not specify targets for
investments or jobs.
Cover: Map of seven active economic development agreements, January
2017, Office of the City Auditor.
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 3 Office of the City Auditor
What We Found
The City’s monitoring
generally ensures that
businesses comply
with contractual
requirements prior to
releasing development
incentives, although the
documentation reviewed
for some requirements is
limited.
Every year, the City’s Economic Development Department reviews
businesses slated to receive incentives to determine their compliance
with economic development agreements. In addition, an independent
reviewer assists the City in evaluating its compliance reviews, using
procedures agreed-upon by both the City and the reviewer. If the annual
review confirms compliance, and the independent evaluation confirms
the departmental review, then the business is deemed to have fulfilled its
obligations for the year. The City then pays the incentive to the business.
Auditors reviewed 11 payments made during calendar years 2014 through
2016 from the City to businesses with active development agreements.
In all cases where appropriate, the City made payments to the businesses
only after the Economic Development Department verified compliance
with the contract terms and its independent reviewer reported that it
confirmed the Department’s work.
The Economic Development Department conducts the reviews using
procedures that verify compliance with the terms of the agreements. In
82% of the compliance areas auditors selected for review, the Department
performed a thorough review. The Department’s examination included:
• paystubs and other supporting schedules to confirm jobs created;
• a new full-time employee report to confirm average annualized
compensation;
• invoices and supporting documentation to support leasehold
improvements;
• a 2014 list of minority- or woman-owned business enterprise (MBE/
WBE) contractors showing information confirming prevailing wage pay;
• employee handbooks, labor law posters, and application process
disclosures to confirm compliance with equal opportunity employment
regulations;
• a copy of a memo from the City’s Small and Minority Business
Resources Department certifying compliance with the MBE/WBE
program ordinance;
• site plan applications to confirm compliance with City Code; and
• signed certificates of compliance with the development agreements.
The Economic Development Department performs annual reviews to
verity that businesses comply with their contractual requirements prior to
the City releasing incentives. In 2009,1 City Council added a requirement
for an independent, third-party reviewer to confirm the results of the
Department’s reviews. The City hired an external accounting firm to
conduct these compliance reviews in accordance with the American
Institute of Certified Public Accountants’ Attestation Standards.
1 City ordinance no. 20090312-005.
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 4 Office of the City Auditor
However, in three compliance areas, as noted in Exhibit 2, the City relied
on assertions from the businesses to determine compliance. Additional
documentation, such as the items listed in Exhibit 2, would provide
a stronger basis to ensure compliance. We also identified where, for
one transaction involving one business, the records documenting the
City’s review indicate that the City relied on the business’ assertion for
a particular requirement and did not provide evidence that it reviewed
underlying accounting records.
Exhibit 2: Compliance Areas Needing Additional Review
SOURCE: Office of the City Auditor’s analysis, October 2016
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 5 Office of the City Auditor
Recommendations and Management Response
1
Equal Opportunity Compliance refers to the companies’ efforts to provide opportunities
for minority-owned, women-owned and local small businesses to provide non-construction
commodities and services worth more than $5,000 exclusively for use at the Austin location.
Typically, these opportunities occur in the first year of the term; in subsequent years, there are few
or no new opportunities. There is no way to independently verify that there actually were no new
non-construction opportunities.
EDD’s monitoring of this requirement is two-pronged. Regardless of whether there were new
opportunities or not, EDD asks each company to report their expenditures during the year with
businesses that meet the requirement in their agreement, and verifies that (1) the business was
certified when the company began doing business with it, and (2) the company can support (with
invoices) a sample of the reported spend. If a company’s reported spend decreased over the previous
year and the company did not provide opportunities to certified firms, we would question why.
The second prong differs depending on whether or not there were new opportunities reported by
the company. If not, in order to ensure that the company is aware of its obligations, we ask them to
document the process they follow when opportunities arise.
EDD will strengthen agreed-upon procedures to more thoroughly document the City’s review.
Regarding Undocumented Workers, EDD will continue to require each company to (1) acknowledge in
its Certificate of Compliance that it has complied with its Chapter 380 agreement and (2) sign an
acknowledgement each year that it has complied with its obligations under Texas Government Code,
Chapter 2264. Beginning in 2017 EDD will explore the feasibility of verifying the US citizenship or
authorization to work in the U.S. of each employee in the samples of employees in New Full-time Jobs
and Existing Jobs.
Regarding confirmation of Chapter 380 payment amounts, the information on EDD’s public website
regarding payment amounts and dates is from the City’s accounting records;1 however, that
information on EDD’s website is transcribed manually, not automatically. EDD will explore methods to
automatically populate the date and amount of each Chapter 380 payment from the City’s accounting
system. In the meantime, EDD will have a second person confirm the accuracy of the payment and
incentive information on the website after entries are posted.
Proposed Implementation Plan:
Management Response:Concur
The Economic Development Department Director should strengthen the review procedures that
address the documentation concerns identified in this audit to ensure the City obtains conclusive
evidence of the business’ compliance.
Proposed Implementation Date:2017
2 EDD reports on it’s website the date each Chapter 380 payment was released. For all companies except The Domain, this
is the date Financial Services released the payment; however, for The Domain, it is the date EDD sends the payment via
certified mail in order to track the date the payment was received by The Domain.
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 6 Office of the City Auditor
Management Response
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 7 Office of the City Auditor
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 8 Office of the City Auditor
ACTION PLAN
Development Agreements Audit
Recommendation Concurrence and Proposed
Strategies for Implementation
Status of
Strategies
Proposed
Implementation
Date
The Economic
Development Department
should strengthen the
procedures that address
the documentation
concerns identified in this
audit to ensure the City
obtains conclusive
evidence of the
companies’ compliance.
Concur See below See below
Equal Opportunity Compliance refers to
the companies’ efforts to provide
opportunities for minority-owned, women-
owned and local small businesses to
provide non-construction commodities
and services worth more than $5,000
exclusively for use at the Austin location.
Typically, these opportunities occur in the
first year of the term; in subsequent years,
there are few or no new opportunities.
There is no way to independently verify
that there actually were no new non-
construction opportunities.
EDD’s monitoring of this requirement is
two-pronged. Regardless of whether
there were new opportunities or not, EDD
asks each company to report their
expenditures during the year with
businesses that meet the requirement in
their agreement, and verifies that (1) the
business was certified when the company
began doing business with it, and (2) the
company can support (with invoices) a
sample of the reported spend. If a
company’s reported spend decreased
over the previous year and the company
did not provide opportunities to certified
firms, we would question why.
The second prong differs depending on
whether or not there were new
opportunities reported by the company. If
not, in order to ensure that the company
is aware of its obligations, we ask them to
document the process they follow when
opportunities arise.
EDD will strengthen agreed-upon
procedures to more thoroughly document
the City’s review.
Underway
06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 9 Office of the City Auditor
Recommendation Concurrence and Proposed
Strategies for Implementation
Status of
Strategies
Proposed
Implementation
Date
Regarding Undocumented :orkers, EDD
will continue to require each company to
(1) acknowledge in its Certificate of
Compliance that it has complied with its
Chapter 0 agreement and (2) sign an
acknowledgement each year that it has
complied with its obligations under Texas
*overnment Code, Chapter 22.
%eginning in 201 EDD will explore the
feasibility of verifying the US citi]enship or
authori]ation to work in the U.S. of each
employee in the samples of employees in
1ew )ull-time -obs and Existing -obs.
Underway 201
Regarding confirmation of Chapter 0
payment amounts, the information on
EDD’s public website regarding payment
amounts and dates is from the City’s
accounting records1; however, that
information on EDD’s website is
transcribed manually, not automatically.
EDD will explore methods to automatically
populate the date and amount of each
Chapter 0 payment from the City’s
accounting system. In the meantime,
EDD will have a second person confirm
the accuracy of the payment and
incentive information on the website after
entries are posted.
3lanned 201
1 EDD reports on it’s website the date each Chapter 0 payment was released. )or all companies except The
Domain, this is the date )inancial Services released the payment; however, for The Domain, it is the date
EDD sends the payment via certified mail in order to track the date the payment was received by The
Domain.
06/13/2024
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Item 2B
Development Agreements Monitoring 10 Office of the City Auditor
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06/13/2024
Public Comment
Item 2B
Development Agreements Monitoring 11 Office of the City Auditor
Audit Standards
Scope
Methodology To accomplish our audit objectives, we performed the following steps:
•researched ordinances and resolutions pertaining to economic
development agreements;
•interviewed Economic Development Department staff responsible for
overseeing economic development agreements;
•analyzed agreed-upon procedures developed for the independent
reviewer by the Economic Development Department;
•interviewed staff from the independent reviewer;
•reviewed compliance reports from businesses participating in
economic development agreements with the City;
•tested the Economic Development Department’s verification of
contract compliance for a judgmental sample of active agreements;
•reviewed, for a sample of active agreements, the Independent
Accountant’s Reports on Applying Agreed-Upon Procedures prepared
by the independent reviewer, and the work supporting their reports;
and
• evaluated internal controls related to monitoring economic
development agreements.
The audit scope included agreements put in place since 2003 and active
in fiscal years 2015 through 2016. We also reviewed incentives paid to
businesses in calendar year 2014 through 2016.
We conducted this performance audit in accordance with Generally
Accepted Government Auditing Standards. Those standards require that
we plan and perform the audit to obtain sufficient, appropriate evidence
to provide a reasonable basis for our findings and conclusions based on
our audit objectives. We believe that the evidence obtained provides
a reasonable basis for our findings and conclusions based on our audit
objectives.
06/13/2024
Public Comment
Item 2B
The Office of the City Auditor was created by the Austin City
Charter as an independent office reporting to City Council to help
establish accountability and improve City services. We conduct
performance audits to review aspects of a City service or program
and provide recommendations for improvement.
City Auditor
Corrie Stokes
Deputy City Auditor
Jason Hadavi
Alternate formats available upon request
Copies of our audit reports are available at
http://www.austintexas.gov/page/audit-reports
Audit Team
Walt Persons, Audit Manager
Karl V. Stephenson, Auditor-in-Charge
JoJo Cruz
Office of the City Auditor
phone: (512) 974-2805
email: oca_auditor@austintexas.gov
website: http://www.austintexas.gov/auditor
AustinAuditor
@AustinAuditor
06/13/2024
Public Comment
Item 2B
ATTACHMENT #7
Item 2B - Page 49
EXCERPTS FROM:
SERENA PARK DEVELOPMENT AGREEMENT CURRENTLY IN EFFECT
APPROVED BY CITY COUNCIL: SEPTEMBER 30, 2021
COUNTY RECORDER - MAY 6, 2024
LEGAL REQUIREMENT - DA MUST BE RECORDED WITHIN 10 DAYS OF APPROVAL
GC 65868.5 / EFFECT OF NOT RECORDING IS TO INVALIDATE
NOTE:
ATTACHMENT #3 TO THE STAFF REPORT IS THE PROPOSED DEVELOPMENT AGREEMENT (DA)
THE PROPOSED DA (JUNE 13, 2024) DOES NOT INCORPORATE THE EARLIER LANGUAGE OF THE 2021 DA, OR
SECTION 4.03 (e) at page 7 which states,
“Payment of Development Agreement Fee over and above the fees referred to in paragraph 4.02, above, to be
used by the City for acquisition of open space for the purposes of Developer's compliance with the City's General
Plan Land Use Policy 2.2 in generating land use density for the subject property.
The Development Agreement Fee shall be Three Million Dollars ($3,000,000.00) paid to City, including Five
Hundred Thousand Dollars ($500 ,000) due no later than November 1, 2021 and the remainder of Two Million, Five
Hundred Thousand Dollars ($2,500,000) due no later than November 1, 2022.
APPEARS TO INCORPORATE THE PROVISIONS OF ATTACHMENT #7 BELOW
AT SECTION 1.01, ON PAGE 17 OF THE STAFF REPORT FOR ITEM 2B.
Note: The language above appears within this Attachment #7 herein at page 56, at 4.03(b), Item 2B Staff Report
ATTACHMENT #7
NOTE:
ATTACHMENT #3 (PROPOSED AMENDMENT TO FIRST AMENDED RESTATED DA)
CONTAINS TWO CONFLICTING CLAUSES (S.1.01 & S.4.06.07) ON WHETHER THE TERMS OF ATTACHMENT #7
ARE TO BE INCORPORATED INTO THE PROPOSED AMENDMENT (ATTACHMENT #3)
FAILURE TO INCORPORATE THE GENERAL PLAN PROVISIONS FOR IN LIEU FEES UNDER LU 2.2 IN EFFECT AT TIME OF AGREEMENT WILL,
1) INVALIDATE COMPLIANCE WITH GENERAL PLAN POLICIES IN EFFECT AT TIME OF AGREEMENT (LU 2.2),
2) DESTROY THE PRIMARY ‘PUBLIC BENEFIT’ IDENTIFIED AND NEGOTIATED IN THE ORIGINAL DA
3) INVALIDATE MITIGATION OF OPEN SPACE LOSS FROM INTENSIFYING LAND USE (GPA) UNDER THE CERTIFIED EIR FROM IN LIEU FEES
OSWIT LAND TRUST
EXHIBIT B TO CCSR_ATTACHMENT #7 TO CCSR
SERENA PARK, ITEM 2B
PALM SPRINGS CITY COUNCIL
JUNE 13, 2024
Section 7.03 herein freezes the Development Agreement by the Ordinances in effect at time of agreement and is invalidated in the Proposed DA
(e)
06/13/2024
Public Comment
Item 2B
RECO RDING REQU EST ED BY :
CITY OF PALM S PRI NGS
2024-0130895
0 5 /06 /2024 11 :52 AM Fee : $ 0 .00
P a g e 1 of 3 3
Re co rde d i n Off i cial Reco r d s
Count y o f R iverside
Pe t e r Aldan a
AND WHEN RECOR DED MAIL TO: i1i1lf ~~i~bj~{iillr.11111 CITY OF PALM SPRI NG S
OFFICE OF THE CITY CLE RK
3200 E. TAHQUITZ CA NYON WAY
PALM S PRINGS, CA 92262
SP ACE ABOVE FOR RECORDER'S USE ON LY
Pursuant to Government Code Section 6103, recording fees shall not app ly
1.2 .19
FIRST AMENDED AND RESTATED
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF PALM SPRINGS
AND
PS COUNTRY CLUB , LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
FOR
SERENA PARK PROJECT
CASE NO. 5 .1327 , PDD-366 , TTM36691
Titl e of Doc ument
THIS AREA FOR
RECORDER'S
USE ONLY
Approved by City Council 09.30.2021
Recorded 05.06.2024
FIRST AMENDED DA
NOW PROPOSING —
AMENDMENT TO FIRST AMENDED
ATTACHMENT #7 / STAFF REPORT
CITY COUNCIL JUNE 13, 2024
06/13/2024
Public Comment
Item 2B
J. This Agreement will reduce air pollution by reason of a significant reduct ion in wind
borne dust and sand to adjacent neighborhoods.
k. Th is Agreement will increase parkland in an underserved area of the City.
I. This Agreement will allow legal commitments by Developer over and above those
allowed by state law and the Palm Springs Municipal Code requirements.
C. Description of the Project and Project Site. Developer represents and
warrants that it has a legal interest in certain real property as legally described in Exhibit
A attached hereto (the "Project Site"). The residential project on the Proj ect Site , along
with all related public and private improvements and obligations , is the "Project."
D. Conversion of Open Space -Parks/Recreation Land. The Developer
acknowledges the Project Site is currently designated as "Open Space -
Parks/Recreation " in the City's adopted General Plan and is zoned as "Open Space"
and is therefore subject to the City's Land Use Policy LU2.2 for the conversion of open
space to developable areas. The Parties acknowledge the Developer shall cooperate
with the City to secure the replacement of converted open space areas on the Project
Site through the use of density transfer of property designated for residential
development within the City.
E. Entitlements. Concurrent with the approval of this Agreement , City approved
the following land use entitlements for the Project Site , which entitlements are also the
subject of this Agreement:
a. General Plan Amendment: From "Open Space -Parks/Recreation" (OS-P/R) to
Very Low Density Residential (VLDR) for the residential portions of the project.
b. Planned Development District in lieu of Change of Zone: From "Open Space" (0 , 0-
5) to Planned Development District (POD).
c. Tentative Tract Map: To subdivide the property into residential lots , privately owned
common areas and a public park.
d. Major Architectural Approval: Conceptual architectural and landscape plans will be
part of the preliminary POD.
e. Transfer of Density Agreement: To cooperate in the transfer of residential density
from the other areas in the City including the Chino Cone Specific Plan to the Project
Site consistent with the provisions of the City's General Plan and the Chino Cone
Specific Plan at the ratio of 1.2 units for each unit removed from the Chino Cone.
The above Entitlements have been approved subject to various conditions and
requirements with which Developer will be required to comply in order to develop
the Project Site ("Conditions of Approval "). The approvals described above , including
without limitation the Conditions of Approval as referenced in this Recital and this
Agreement, are referred to herein as the "Entitlements " and have been reviewed and
approved in accordance with the Municipal Code, California Environmental Quality Act ,
California Public Resources Code Section 21000 et seq . ("CEQA"), and all other
3
06/13/2024
Public Comment
Item 2B
perform and abide by the covenants and obligations of City set forth in th is Agreement is
a material consideration for Developer's agreement to perform and abide by its long
term covenants and obligations, as set forth herein. The Developer may discharge all of
its obligation under the Agreement by agreeing to have all the property returned to an
Open Space designation .
Section 4.02. Fees Paid by Developer. As a material consideration for the long term
assurances and vested rights provided by this Agreement , Developer shall pay fees,
exactions , and charges to City as set forth in the Project Approvals not to exceed the
amounts specified in City Council adopted ordinances and resolutions as of the Effective
Date ("C ity Fees"), per dwelling unit , structure , or improvement , for all fees and charges
imposed by the City and payable no earlier than City's issuance of a build ing perm it.
The amount of the City Fees will be adjusted on the fifth, tenth, and f ifteenth annual
anniversary of the Effective Date to reflect and equal the City 's fees then in effect on
each such anniversary. The term "City Fees" as used in this Section 4.02 for the
purpose of limiting the ability of the City to increase certa in fees , exactions, and charges
does not include fees or charges required or otherwise assessed by any public agency
other than the City or a fee or charge levied by the City to fund an enterprise account,
including without limitation the City 's Sewer Fund or Engineering plan check fees. The
City Fees shall be adjusted to include credits against any and all park fees , including but
not limited to , Quimby Fees pursuant to California Government Code §66477 , included
in the City Fees, for the costs of both land and improvements provided by the Developer
to build the public park.
Section 4.03. Public benefits provided by Developer.
a. All conditions of approval of the Project adopted and accepted by the Developer.
b. Reservation of lands for public use , owned and maintained by Developer or any
successor HOA, in accordance w ith Exhibit C attached hereto.
c. Construction of a portion of an alternate for the CV Link Trail from Verona Road and
Whitewater Club Dr ive to Sunrise Way across development.
d . Indemnification over and above the indemnification allowed under the Map Act.
e. Payment of Development Agreement Fee over and above the fees referred to in
paragraph 4.02 , above , to be used by the City for acquisition of open space for the
purposes of Developer's compliance with the City 's General Plan Land Use Policy
2.2 in generating land use density for the subject property. The Development
Agreement Fee shall be Three Million Dollars ($3 ,000 ,000.00) paid to City , including
Five Hundred Thousand Dollars ($500 ,000) due no later than November 1, 2021 and
the remainder of Two Million , Five Hundred Thousand Dollars ($2,500,000) due no
later than November 1, 2022. If development lots are sold to third-party builders or
bu ilding permits are issued prior to one or more of those dates, the Development
Agreement Fee shall be paid such that as construct ion of the Project occurs , and
either (i) developed lots are sold to third -party builders , or (ii) building permits are
issued for construction of residential dwelling units, the Developer shall pay to City a
pro-rata portion of the unpaid principal at the time vacant lots are sold to third-party
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otherwise affect any provision of the Conditions of Approval , except to the extent that a
provision of this Agreement is in direct conflict with a provision of such Condition of
Approval. Then, and only in that event , the provisions of this Agreement shall prevail
over the contradictory provisions of any such Condition of Approval. The execution of
this Agreement by the parties hereto shall in no way otherwise affect the validity of any
or all of the provisions of the Conditions of Approval.
ARTICLE 5. OBLIGATIONS OF CITY
In consideration of Developer entering in to this Agreement , City agrees that it will
comply with the terms and conditions of th is Agreement. The parties acknowledge and
agree that Developer's agreement to perform and abide b y its covenants and obligations
set forth in this Agreement is a material consideration for the City 's agreement to
perform and abide by the long term covenants and obligations of the City , as set forth
herein.
ARTICLE 6. COOPERATION -IMPLEMENTATION
The parties agree to cooperate in good faith to implement this Agreement.
ARTICLE 7. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
Section 7.01. Vested Right to Develop. Developer shall have a veste d right to build
out the Project through the Term on the Project Site in accordance with the terms and
conditions of the Project Approvals.
Section 7.02. Perm itted Uses Vested by This Agreement. The permitted residential
use of the Project Site, the density and intensity of use of the Project Site , the maximum
height, bulk and size of proposed buildings , provisions for reservation or dedication of
land for public purposes and the location of public improvements , the general location of
public utilities, and other terms and conditions of development applicable to the Project,
are set forth in the Project Approvals.
Section 7.03. Applicable Law. The rules, regulations , official policies , standards and
specifications applicable to the Project (the "Applicable Law") shall be those set forth in
the Project Approvals , and, with respect to matters not addressed by the Project
Approvals, those rules , regulations , official policies , standards and specifications
(including City ordinances and resolutions) governing permitted uses , building locations,
timing of construction , densities, design , heights, fees , exactions, and taxes in force and
effect on the Effective Date of this Agreement.
Section 7 .04. Uniform Codes. City may apply to the Project Site , at any time during
the Term, the then current Uniform building construction, fire or other codes, as the
same may be adopted or amended from time to time by City, and City's then current
design and construction standards for public improvements, as the same may be
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which shall survive such invalidation , nullification or setting aside.
Section 10.02. Waiver of Challenges to Project Approvals.
a. As a condition precedent to receiving the benefits of this Agreement, Developer, its
successors in interest, transferees , assignees , etc., expressly waive any legal or
equitable right to challenge any Project Approvals or other act , entitlement , fee , or
approval expressly set forth in this Agreement, including without limitation, all acts of
protest pursuant to California Government Code Sections 66008 and 66009 as to
any fee against which Developer has vested in accordance with this Agreement.
b. The parties agree that this Section 10.03(b) shall constitute a separate agreement
entered into concurrently , and that if any other provision of this Agreement, or the
Agreement as a whole , is invalidated, rendered null , or set aside by a court of
competent jurisdiction, the parties agree to be bound by the terms of this section,
which shall survive such invalidation , nullification or setting aside.
ARTICLE 11. DEFAULT ; REMEDIES; TERMINATION
Section 11.01. Defaults. Any failure by either party to perform any term or provision
of this Agreement, which failure continues uncured for a period of thirty (30) days
follow ing written notice of such failure from the other party (unless such period is
extended by mutual written consent), shall constitute a default under this Agreement
("Default"). Any notice given pursuant to the preceding sentence ("Default Notice") shall
specify the nature of the alleged failure and, where appropriate, the manner in which
said failure satisfactorily may be cured. If the nature of the alleged failure is such that it
cannot reasonably be cured within such 30-day period , then the commencement of the
cure within such time period, and the diligent prosecution to completion of the cure
thereafter , shall be deemed to be a cure within such 30-day period. Upon the
occurrence of a Default under this Agreement, the non-defaulting party may institute
legal proceedings to enforce the terms of this Agreement or, in the event of a material
Default, terminate this Agreement. If the Default is cured , then no Default shall exist and
the noticing party shall take no further action.
Section 11.02. Enumerated City Rights and Remedies for Developer Default. City
and Developer agree that notwithstanding any provision of this Agreement , in the event
of any Default by Developer, the City , in addition and cumulative to all rights and
remedies provided in this Agreement , shall have two (2) enumerated rights and
remedies , each in an exercise of City 's absolute discretion, enumerated in this Section
11.02. First, City may initiate and approve the Project Site 's reversion to acreage in
conformance with California Government Code, Title 7, Division 2 , Chapter 6,
Reversions and Exclusions (Sections 66499.11 through 66499.29) and Municipal Code,
Title 9 Chapter 9.66 Reversions (Sections 9.66.010 through 9.66.110), unless City
waives said Municipal Code provisions. Second, the City may take unilateral action to
summarily abate any condition representing a nuisance at the Project Site or any portion
16 REVERSION
TO ACREAGE
GC 66499.11-29
PSMO 9.66.010 - 110
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IN WITNESS WHEREOF, the City of Palm Springs California , a California
Charter City and municipal corporation, has authorized the execution of this
Development Agreement in duplicate by its City Manager and attestation by its City
Clerk , and approved by the Council of the City on the 17 th day of October, 2018, and
amended by City Council Ordinance No. 2051 , and Developer has caused this
Agreement to be executed by its authorized representative.
Date: .;-/2/zfl --7-rL;L-------,,...._ _______ _
APPROVED AS TO FORM:
By: _c/_.,,,._~~""-----:j,4_/::;....,.~,-:=;------J~~6firrefer
City Attorney
APPROVED BY CITY COUNCIL:
"CITY"
City of Palm Springs
By:k/4/
Scott Stiles
City Manager
ATTEST
By: lt!l~
, 0
Brenda Pree
City Clerk
I 11,,~-i-l 1-t tf'I\ i. A
Date: ~0 Agreement No. ft 7251
Corporati ons requ ire two nota rized signatures. One s igna ture mus t be fr om C hairman o f Boa rd , President , or any Vice
Pres ident. The second sig nature must be from th e Secretary , Assistan t Secretary, Treas urer, Assis tant Treasu rer , or
Chief Fi nancia l Officer.
"DEVELOPER"
Palm Springs Country Club, LLC,
a California limited liability company
By
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Item 2B
From:David Newell
To:City Clerk
Cc:Christopher Hadwin
Subject:Fw: Serena Park / City Council Agenda Item 2B / June 13, 2024
Date:Thursday, June 13, 2024 10:49:58 AM
Attachments:01 Amended DA under Consideration by City Council_Section 1.01 (Serena Park).png
02 Amended DA under Consideration by City Council_Section 4.06.07 (Serena Park).png
03 Dev Agreement Currently in Effect_Recorded May 6, 2024_Section 4.03 (Serena Park) .png
Public comment on Item 2.B. (Serena Park):
From: Judy Deertrack <judydeertrack@gmail.com>
Sent: Wednesday, June 12, 2024 1:28 PM
To: christopherhadwin@palmspringsca.gov <christopherhadwin@palmspringsca.gov>; David Newell
<David.Newell@palmspringsca.gov>
Subject: Serena Park / City Council Agenda Item 2B / June 13, 2024
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.
To the Director of Planning, City of Palm Springs, Mr. Christopher HadwinAttn: Mr. David Newell, Planner
Dear Mr. Hadwin,
Re: Serena Park Proposed Amendment to the First Amended and Restated DA
City Council Item 2B / June 13, 2024
I wanted to communicate with you over a concern in the wording of the ProposedAmended Development Agreement on Serena Park, and critical clauses in thatagreement that I feel are too unclear or contradictory to be left "as is." I amreferring to the Clauses in the Proposed Amendment that either result inINCORPORATING all terms of the Development Agreement (DA) recorded May 6,
2024, or SUPERSEDE all terms of the DA recorded May 6, 2024.
Please see the attachments below for:Section 1.01 (Proposed Amended DA) - CC Staff Report, Page 14Section 4.06.07 (Proposed Amended DA) - CC Staff Report, Page 21Section 4.03 Public Benefit Clause (Recorded DA) - CC Staff Report, Page 56
Particularly looking at Exhibit #2 below, it first speaks of including an "unidentified"
Development Agreement, and then it has language that states: "and supersedesall previous negotiations and agreements of the parties." at page 21,(Section 4.06.07)
The language must be very precise and clear whether the Amendment isincorporating or superseding previous agreements. Oswit Land Trust will shortlysubmit a comment letter on this issue that gives the history of negotiation and
application of Land Use Policy 2.2, with specific direction by the City Council (prior to
this Amendment) that the public benefit under Policy 2.2 be applied as required in
06/13/2024
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Item 2B
the general plan for "open space acquisition."
I talked with David Newell last week, who is always clear and accommodating (andmuch appreciated) and was told that the City Council had discretion on how thesefees could be applied. The Council did not reserve that discretion under the recordedDevelopment Agreement (Clause 4.03), and made findings to that effect. We wouldexpect the Certified EIR also had mitigation findings, obligating the City to mitigateproperly and follow general plan directives.
Thank you so much.
Judy DeertrackDeertrack Consulting, LLCPalm Springs, CA760 325 4290
06/13/2024
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06/13/2024 Public Comment Item 2B
From:David Newell
To:City Clerk
Subject:Fw: Serena Park
Date:Thursday, June 13, 2024 12:21:13 PM
From: Landi Rodney <rodneynlandi@gmail.com>
Sent: Thursday, June 13, 2024 8:10 AM
To: David Newell <David.Newell@palmspringsca.gov>
Cc: Bud Vitale <buddvi@msn.com>; Deborah Freeman <dhelenfreeman@icloud.com>; Desiree
Otero <mail@desireeotero.com>; fred Fabricant <frdfabricant@gmail.com>
Subject: Serena Park
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links
or open attachments unless you are sure the content is safe.
Mr Newell,
I am the owner of a unit at Palm Springs Country Club located adjacent to the planned development
of Serena Park.
In earlier discussions and negotiations with Eric Taylor representing the previous developer there
were a number of promises agreed to regarding several provisions.
1. An enclosure around the Palm Springs Country Club (discussed was a 3’ to 4’ block wall with
metal extension reaching 5’ to 6’)
2. The ceding to PSCC of an additional 10’ from the property line in order to avoid impinging on the
outdoor spaces and patios of those PSCC units situated directly on the demarcation line.
3. Provisions for the re-opening of the secondary access gate located at the east of the complex
which was closed following the dissolution of the golf club.
I would like to know if these terms continue to be part of the agreement with the new developer. As I
am not available to attend this evenings meeting, I would appreciate if these concerns could be
clarified.
Many Thanks
Rodney Landi
2547B N. Whitewater Club Drive
Palm Springs
514-651-6716
Sent from my iPad
06/13/2024
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Item 2B
From:David Newell
To:City Clerk
Subject:Fw: PS COUNTRY CLUB LLC AND PNG1, LLC/SERENA PARK
Date:Thursday, June 13, 2024 12:22:57 PM
From: Rodney Kizziah <rodneykizziah@gmail.com>
Sent: Wednesday, June 12, 2024 4:29 PM
To: David Newell <David.Newell@palmspringsca.gov>; Jeffrey Bernstein
<Jeffrey.Bernstein@palmspringsca.gov>
Subject: PS COUNTRY CLUB LLC AND PNG1, LLC/SERENA PARK
NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.
Hi David and Jeffrey,
My name is Rodney Kizziah and I own a condo at 2527 North Whitewater Club Drive. I
bought the place about a year and a half ago and since that time the drive through gate to the
Serena Park development land has been breached 3 times.
I contacted Eric Taylor and they were pretty quick to fix it all three times, The most recent
time took the longest which was about a week.
They finally put a thick enough chain and padlock on the gate to prevent someone from
cutting it with wire cutters so it has lasted about 6 months. I sent them suggestions of chains
and padlocks to buy.
When it is broken you can easily drive a car or truck onto the Palm Springs Country Club land
next door. Palm Springs Country Club and Alexander Estates 2 is gated so you can understand
that this would be a security issue.
i understand there are other ways to gain access to this land but the perimeter on Verona Road
has been compromised the whole time. The wall is so low you can easily hop over but there
are also giant holes where you can easily walk through. So this Verona Road facing property
is a welcome mat for people to walk through directly from the street and then since our
property adjoins theirs random people just wander in. In the fall there was a homeless man
who lived on the property about 100 yards from our front doors.
Please see the attached photos to see what I am talking about. As i stated before i know there
are other ways to just walk around to the edge of their property and gain access but it was my
understanding that these concerns were raised in the past and they were supposed to do some
kind of security around the perimeter that seems to have never been done.
Why are there not no trespassing signs or private property postings?
I am writing to you today to put this on your radar and also with the hope that whoever this
land gets transferred to will also try to help if their drive through gate becomes breached but
also with some blind optimism that whoever takes over the land will see their neighbors and
their safety as a priority.
Especially if this transfer is going to start some activity on the land of people coming and
going.
I was going to attend Thursday's meeting but a very kind lady at David's office told me this
meeting was not about what I am bringing up and gave me your emails and said i should just
email you guys.
I appreciate your time very much and I would greatly appreciate your consideration and/or
advice about the security concerns..
06/13/2024
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Hopefully I can get contact info for the new developer so if something comes up with the gate
I would be able to contact them like I have contacted Eric Taylor in the past.
Thank you both for your time.
--
Rodney Kizziah
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