HomeMy WebLinkAboutA5284 - K HOVNANIAN'S FOUR SEASONS PARKLAND DEDICATION AGREEMENT
AS TO PARK LAND DEDICATION — TM 31525
THIS AGREEMENT is made by and between the City of Palm Springs, a
charter city ("City"), and K. Hovnanian's Four Seasons at Palm S rings, LLC, a
California limited liability company ("Hovnanian") effective this 34k day of May,
2006.
RECITALS
A, Hovnanian is the owner and developer of a parcel of land in the City of
Palm Springs (the "Property"), which is approximately 23.9 acres and more
particularly described in Exhibit A attached hereto and incorporated herein.
Hovnanian is the applicant for Tentative Tract Map 31525 ("TM 31525") for the
Property, including 70 residential lots. TM 31525 is within PD 267. PD 267 was
approved by the City as Case No. 5.0866 on January 16, 2002. TM 30054 was
approved concurrently with the PD 267. The City approved revised conditions of
approval on January 15, 2003- Hovnanian is also the developer of TM 30058
within the separate PD 269,
B. On or about August 13, 2003, the City adopted a Quimby Ordinance
(Section 1632 of the City Municipal Code) pursuant to Government Code Section
66477 ("§66477"). The Quimby Ordinance requires developers to dedicate land
or pay an in-lieu fee to provide and maintain park sites within the City. Section
66477 mandates that prior to requiring Quimby dedications or payment of in-lieu
fees, the City has adopted standards for determining the appropriate dedication
or fees. The Quimby Ordinance establishes such standards-
C. At all times relevant to this Agreement, the City's adopted General Plan
designates a park within the Property.
D. Hovnanian submitted its initial application for TM 31525 to the City in
October of 2004.
E. At its regular meeting on December 14, 2005, the Planning Commission of
the City determined to recommend TM 31525, subject to Conditions of Approval.
At the meeting, however, there was unresolved discussion regarding the
Conditions of Approval (Administration No.7; Engineering No. 40). Condition No.
7 required Hovnanian to pay a fee or dedicate land prior to issuance of building
of permits, pursuant to the Quimby Ordinance. Engineering Condition No.40
required Hovnanian to dedicate a seven (7) acre park site ("Lot G"). In making its
Agreement as to Park Dedication—TM 31525 1
resolution, the Planning Commission directed staff to prepare language which
addresses the Quimby issues.
F. Staff has recommended that the Council modify Administrative Condition
of Approval No. 7 for TM 31525 by eliminating the requirement to comply with the
City's Quimby ordinance and that Engineering Condition No. 40 remain in effect-
G. The City has asserted it has the right to require the dedication of land for
open space, park, and recreational purposes where the City has approved
reduced development standards that preserve Hovnanian's development
opportunities for the Property. Hovnanian disputes the City's legal authority and
factual basis for requiring dedication of park land in excess of what would be
required under the Quimby Ordinance without compensation for the fair market
value thereof.
H. Hovnanian is amenable to dedication of the park land with compensation
for excess contribution under the Quimby Ordinance, either upon dedication or
pursuant to reservation agreement (as provided in the Quimby Ordinance) or, in
the alternative, to an election by the City to determine that the park site is not
desirable.
I. The Parties are amenable to working together to resolve their differences
regarding the dedication of Lot G while allowing TM 31525 to move forward with
the approval of the tentative map and preparation and ultimate approval of a final
subdivision map for TM 31525 so long as the parties can preserve their rights
regarding the dedication condition of approval.
NOW THEREFORE, in consideration of the mutual covenants and
conditions set forth herein, the parties agree as follows:
1. All recitals set forth above are incorporated herein by reference and
are a material part of this Agreement.
2. TM 31525 was presented to the City Council on May 3, 2006 at its
regular meeting. The City Council approved TM 31525 subject to Conditions of
Approval, with Condition No. 7 and Engineering Condition No. 40 revised to
provide that each is subject to further negotiation between the City and
Hovnanian pursuant to the terms of this Agreement.
3. The City and Hovnanian understand and agree that except as
otherwise expressly provided in this Agreement, neither this Agreement nor
approval of TM 31525 (or any final map filed thereafter) shall be construed as a
waiver of rights or remedies by either party as to objection to or enforcement of
Condition No. 7 or Engineering Condition of Approval No. 40. This Agreement
merely suspends and tolls all requirements and timelines so that the parties can
work toward a satisfactory resolution of the issues as opposed to compelling
Agreement as to Park Dedication—TM 31525 2
legal action. Upon expiration of this Agreement or termination by either party
pursuant to Section 6, below, all parties are restored to their prior positions with
respect to the objection to or enforcement of Condition No. 7 or Engineering
Condition of Approval No. 40, retaining all rights they each had at the time of the
City Council approval on May 3, 2006, and the parties acknowledge that
Hovnanian shall be deemed to have exhausted its administrative remedies,
including but not limited to any protest requirement under Palm Springs Municipal
Code or under Government Code Section 66020, and may thereafter pursue any
and all available judicial remedies.
4. The City and Hovnanian agree to continue discussions in good faith
to achieve a fair and lawful resolution regarding dedication or re-designation of
the park site and to possibly facilitate the development of more appropriate park
resources to serve the City and its residents.
5. In the event the parties are unable to reach agreement as to the
matters set forth in this Agreement before Hovnanian is prepared to present its
Final Map for City Approval, a Final Map may, at Hovnanian's election, be
• submitted for all of the Property except reserving Lot G for potential park
purposes and subject to the following conditions:
a. The reservation of Lot G shall be subject to this Agreement
which shall be noted on the recorded Final Map and shall survive recordation of
the Final Map through final acceptance of all improvements to be dedicated to
the City (not including Lot G) and/or any other governmental entity.
b. Hovnanian shall be entitled to obtain building permits,
certificates of occupancy and other approvals required for TM 31525, without
regard to resolution of the matters set forth herein, provided other standard
conditions are satisfied.
C. Hovnanian shall neither permanently alter nor improve said
Lot G except in connection with and as reasonably convenient or required for the
development of the remainder of the Property, including but not limited to grading
onto Lot G, construction of an interim retention basin on Lot G, and other
activities reasonably necessary to satisfy requirements imposed by the City, until
resolution of the matters set forth herein by agreement or final judicial order,
subject to rights of appeal.
d. Following recordation of the Final Map through final
acceptance of any improvements to be dedicated to the City (not including the
Lot G) and/or any other governmental entity, the City may elect to enforce
dedication of Lot G following not less than thirty (30) days written notice to
Hovnanian. Hovnanian shall, within such notice period, have the right to take
any and all actions Hovnanian deems necessary to contest Condition No. 7 and
Engineering Condition No. 40 and dedication requirement, including but not
Agreement as to Park Dedication -TM 31525 3
limited to filing a legal action challenging such Condition of Approval and
dedication requirement. City waives any defense of the failure of Hovnanian to
timely appeal such Condition of Approval and dedication requirement so long as
Hovnanian commences its appeal on or before the date thirty (30) days after
Hovnanian's receipt of written notice from the City unequivocally indicating that
the City has elected to enforce dedication of Lot G and notifying Hovnanian that it
must commence appeal proceedings, if at all, on or before the date thirty (30)
days after its receipt of such notice. Such notice shall be required to be
personally delivered to the persons at the appropriate addresses set forth below
(in which event such notice shall be deemed effective only upon such delivery),
delivered by air courier next-day delivery (e.g. Federal Express), delivered by
mail, sent by registered or certified mail, return receipt requested, or sent via
telecopier, as follows:
Attn: Mr. Damon Gascon, Area President
K. Hovnanian's Four Seasons at Palm Springs, LLC
1867 California Avenue
Corona, CA 92881
Facsimile No.: (951) 520-4799
With a copy to: Attn: Joseph M. Manisco, Esq.
K. Hovnanian Companies of California, Inc.
2525 Campus Drive
Irvine, CA 92612
Facsimile No.: (949) 757-0458
Notices delivered by air courier shall be deemed to have been given the
next business day after deposit with the courier and notices mailed shall be
deemed to have been given on the third day following deposit of same in any
United States Post Office mailbox in the state to which the notice is addressed or
on the Fourth day following deposit in any such post office box other than in the
state to which the notice is addressed, postage prepaid, addressed as set forth
above. Notices sent via telecopy shall be deemed delivered the same business
day transmitted provided that an original is mailed first class postage prepaid to
the recipients.
6. The provisions of this Agreement pertaining to the agreement of the
parties to continue negotiations may be terminated by either party following thirty
' (30) days written notice, if to Hovnanian as provided in Section 5A., above, and if
to the City, then to the City Manager at City Hall, 3200 E Tahquitz Canyon Way,
Palm Springs, CA 92263 or by facsimile at (760) 323-8207, and time periods
specified for Hovnanian's objection or action as described in Section 3 shall
commence upon such termination.
Effective the date first written above.
Agreement as to Park Dedication—TM 31525 4
CITY OF PALM SPRINGS K. Hovnanian's Four Seasons at
Palm Springs, LLC, a California
limited liability company
' By:
- David Ready By:
' - City Manager A- Damon Gascon, Vice President
t ATTt 5T: K. Hovnanian Companies of
California, Inc., Authorized Agent
9ty Cleric
Approved as,to form: APPROVED BY CITY COUNCIL
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Douglas Holland
City Attorney
Agreement as to Park Dedication—TM 31525 5
city khovnanien agreement 5.2.06
EXHIBIT A
Order Number: NHRV-1093365
Page Number: 10
LEGAL DESCRIPTION
Real property In the City of Palm Springs,County of Riverside, State of Calffornia, described as
follows:
TENTATIVE TRACT NO. 31525, BEING A SUBDIVISION OF THE FOLLOWING:
PARCEL 1 AS SHOWN ON LOT LINE ADJUSTMENT NO. LLA 03-04 RECORDED APRIL 24,2003 AS
INSTRUMENT NO. 2003-290365 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA,
DESCRIBED IN SAID DOCUMENT AS FOLLOWS:
A PARCEL OF LAND, SITUATED IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE,STATE
OF CALIFORNIA LYING OVER PORTIONS OF SECTION 36,TOWNSHIP 3 SOUTH, RANGE 4 EAST,
SAN BERNARDINO BASE AND MERIDIAN, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID SECTION 36,SAID POINT LYING,
NORTH 00 15'30" EAST 1345.23 FEET ALONG SAID WESTERLY LINE FROM THE SOUTHWEST
r CORNER OF SAID SECTION 36, SAID POINT ALSO BEING ON THE CENTERLINE OF THE 80,00
FOOT WIDE RIGHT-OF-WAY GRANTED TO THE CITY OF PALM SPRINGS RECORDED OCTOBER
10, 1968 AS INSTRUMENT NO. 97819, OF OFFICIAL RECORDS OF SAID RIVERSIDE COUNTY
i AND THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF
500.00 FEET;THENCE, LEAVING SAID WESTERLY LINE, NORTHEASTERLY 471.25 FEET ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 540 00' 04";THENCE, TANGENT FROM SAID
CURVE, NORTH 540 IT 34" EAST 217.77 FEET TO A TANGENT CURVE CONCAVE SOUTHERLY
HAVING A RADIUS OF 500.00 FEET; THENCE, EASTERLY 313.98 FEET ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 350 58'44';THENCE,TANGENT FROM SAID CURVE, SOUTH
890 45'42" EAST 503.01 FEET TO A TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A
RADIUS OF 600.00 FEET;THENCE NORTHEASTERLY 330.26 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 310 32' 17"TO THE SOUTHWESTERLY RIGHT-OF-WAY OF THE
WHITEWATER RIVER CHANNEL,AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 95, PAGES
14 THROUGH 18, INCLUSIVE, RIVERSIDE COUNTY RECORDS,AND ON A CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 7500.00 FEET;A RADIAL LINE TO SAID POINT BEARS
NORTH 410 46' 34" EAST; THENCE NORTHWESTERLY 1817.48 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 130 53'04"TO SAID WESTERLY LINE OF SECTION 36;
THENCE, ALONG SAID WESTERLY LINE, NON-TANGENT FROM SAID CURVE, SOUTH 00 15,30"
WEST 1745.79 FEET TO THE POINT OF BEGINNING;
EXCEPT AN UNDIVIDED ONE-HALF INTEREST IN AND TO ALL OIL, GAS AND OTHER MINERALS
IN OR UNDER SAID LAND,AS RESERVED IN DEED FROM FERGUS HATHORN HEISIG AND
ROMAYNE EDITH HEISIG HUSBAND AND WIFE, DATED FEBRUARY 28, 1956 AND RECORDED
JANUARY 2, 1957 IN BOOK 2018 PAGE 326 OF OFFICIAL RECORDS, RIVERSIDE COUNTY
RECORDS;
ALSO EXCEPTING THAT PORTION INCLUDED WITHIN THE NORTHWEST QUARTER AND THE
NORTH HALF OF THE SOUTHWEST QUARTER OF SECTION 36, ONE-HALF INTEREST IN ALL OIL,
GAS AND OTHER MINERALS IN AND UNDER SAID LAND,AS RESERVED TO TERRY RAY AND
HELEN RAY, HUSBAND AND WIFE, IN DEED RECORDED JANUARY 2, 1957 AS INSTRUMENT NO.
140 IN BOOK 2018, PAGE 320 OF OFFICIAL RECORDS, RIVERSIDE COUNTY RECORDS.
APN; 669-460-005 AND 669-470-030 AND 669-470-031
FrsrAmerlcan Title