AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 102 of 486 8 (including attorneys’ and experts’ fees and expenses and fees and expenses incurred in investigating, defending or prosecuting any litigation, claim or proceeding) that may at any time be imposed upon, incurred by, or asserted or awarded against Landlord in connection or arising out of: (i) any Hazardous Material on, in, under or affecting all or any portion of the Premises, (ii) any violation or claim of violation of any Environmental Law by Tenant; or (iii) the imposition of any lien for the recovery of costs for environmental cleanup or other response costs relating to the release or threatened release of Hazardous Materials on, in, under or affecting all or any portion of the Premises. Tenant’s indemnification shall survive the expiration and termination of this Lease.
4.5 Non-Discrimination. Tenant herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through it, and this Lease is made and accepted upon and subject to the requirement that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, genetic information, gender, gender identity, gender expression, marital status, age, national origin, or ancestry, in the leasing, use, occupancy, tenure, or enjoyment of the Premises, nor shall the Tenant itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of Tenants, sub-tenants, or vendees in the Premises herein leased.
ARTICLE V
TAXES AND UTILITIES
5.1 Possessory Interest Tax/Property Taxes. Tenant recognizes and understands that this Lease may create a possessory interest subject to taxation and that Tenant may be subject to the payment of taxes levied on such interest. Tenant shall pay all taxes including without limitation any possessory interest, real estate and personal property taxes and assessments assessed, levied, confirmed or imposed during the Term of this Lease, whether or not now customary or within the contemplation of Landlord and Tenant: (i) upon, measured by or reasonably attributable to the cost or value of Tenant’s equipment, furniture, fixtures and other personal property located in the Premises, or by the cost or value of the leasehold improvements made in or to the Premises by or for Tenant, regardless of whether title to the improvements is in Tenant or Landlord; (ii) upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion of the Premises; (iii) upon the Premises and all personal property, furniture, fixtures and equipment, and all replacements, improvements, or additions to them, whether owned by Landlord or Tenant; and (iv) upon this transaction or any document to which Tenant is a party creating or transferring and interest or an estate in the Premises.
5.2 Utilities. All utilities serving the Premises are separately metered. Tenant shall pay the appropriate suppliers for all water, gas, power, electricity, light, heat, telephone, facsimile, internet, and other utilities and communications services used by Tenant on the Premises during the Term, including the taxes thereon, whether or not the services are billed directly to Tenant. Tenant shall procure, or cause to be procured, without cost to Landlord, any and all necessary permits, licenses, or other authorizations required for the lawful and proper
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 103 of 486 9 installation and maintenance upon the Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any of the services to and upon the Premises.
Landlord, upon request of Tenant, shall at the sole expense and liability of Tenant, join with Tenant in any application required for obtaining and continuing any of the services.
ARTICLE VI
INSURANCE; INDEMNIFICATION; WAIVER AND RELEASE
6.1 Minimum Insurance Requirements. Tenant, at its sole cost and expense, commencing on the date Tenant is given access to the Premises, and continuing during the Term, shall procure, pay for, and thereafter keep in full force and effect the following types of insurance, in at least the amounts and in the forms specified below:
A. Commercial General Liability (CGL) with limits no less than Two Million Dollars ($2,000,000.00) per occurrence basis including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than Two Million Dollars ($2,000,000) per occurrence. Tenant shall maintain in force liability insurance, at all times during the term of this Lease and any renewal or extension thereof, which shall insure and indemnify Landlord, the City Council and each member thereof, and every officer and employee of Landlord against liability or financial loss resulting from any suits, claims or actions brought by any person or persons and from all costs and expense of litigation brought against Landlord, the City Council and every member thereof for any injury to persons and/or damage to property in, on or about the Premises by reason of the use or occupation by Tenant or by any other person or persons of the Premises and the activities of Tenant.
B. A policy or policies of Workers Compensation insurance in the amount required by the State of California if required by law for Tenant.
C. Property Insurance against all risk of loss at full replacement cost with no coinsurance penalty provision at Tenant’s cost and expense, shall be obtained and at all times during the term hereof maintain in effect covering (1) all improvements included in the Premises; (ii) Tenant’s trade fixtures, furnishings, equipment, and inventory of merchandise located in the Premises; and (2) all alterations, additions, and changes made in or to the Premises during the term of this Lease at Tenant’s expense, providing protection to the extent of not less than one hundred percent (100%) of the insurable value of all said items against any peril included under insurance industry practices in the jurisdiction of the Premises within the classification “fire and extended coverage,” together with insurance against vandalism, malicious mischief, and sprinkler leakage or other sprinkler damage, if sprinklers are installed, and including “use and occupancy” and/or “business interruption” coverage. Tenant hereby waives any and all rights of recovery against Landlord for any loss occurring to such items on account of fire or other casualty, and the aforesaid policies of insurance shall contain appropriate provision recognizing this release by Tenant and waiving all right of subrogation by the insurance carrier. The proceeds of such insurance, so long as this Lease remains in effect, shall be used to repair or replace the items so insured in the event of loss on account of fire or other casualty.
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 104 of 486 10 D. Automobile Liability: Covering any auto, or if Tenant has no owned autos, hired, and non-owned autos, with limits no less than the amount required by law per accident for bodily injury and property damage.
E. Plate Glass Insurance: Plate glass insurance covering all plate glass on the Premises at full replacement value; provided that Tenant shall be permitted to self-insure plate glass insurance.
F. Insurance covering all of Tenant’s Alterations in an amount not less than their full replacement value from time to time, including replacement cost endorsement, providing protection against any peril included within the classification Fire and Extended Coverage, sprinkler damage, vandalism, malicious mischief and such other additional perils as covered in an “all risks” standard insurance policy. Any policy proceeds shall be used for the repair or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Article 14. For purposes of this paragraph, “Tenant’s Alterations” means all improvements, additions, alterations, and fixtures installed in the Premises by or for the benefit of Tenant following the Commencement Date, including Tenant Improvements.
G. Business Interruption Insurance: Commercially reasonable business interruption insurance.
6.2 Delivery of Evidence of Tenant’s Insurance. Each such insurance policy or certificate thereof shall be delivered to Landlord by Tenant on or before the effective date of such policy and thereafter Tenant shall deliver to Landlord renewal policies or certificates at least thirty (30) calendar days prior to the expiration dates of the expiring policies. In the event that Tenant shall fail to insure or shall fail to furnish Landlord the evidence of such insurance as required by Article VI, Landlord may from time to time acquire (without any obligation to do so) such insurance for the benefit of Tenant or Landlord or both of them for a period not exceeding one (1) year, and any premium paid by Landlord shall be recoverable from Tenant. Tenant’s compliance with the provisions of Article VI shall in no way limit Tenant’s liability under any of the other provisions of this Lease. Landlord may at any time, and from time to time, inspect and/or copy any and all insurance policies required by this Lease.
6.3 Other Insurance Requirements. The insurance to be acquired and maintained by Tenant shall be with companies admitted to do business in the State of California and companies of Best’s Rating Guide of A or better. Tenant shall deliver to Landlord, prior to taking possession of the Premises, a certificate of insurance evidencing the existence of the policies required hereunder, and such certificate shall certify that the policy:
A. Names Landlord and any other entities designated by Landlord as additional insureds under the Commercial General Liability policy; B. Shall not be canceled or altered without thirty (30) calendar day’s prior written notice to Landlord;
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 105 of 486 11 C. Insures performance of Tenant’s indemnity set forth in this Lease; D. Provide that no act or omissions of Tenant shall affect or limit the obligations of the insurer with respect to other insureds or including Landlord; E. Include all waiver of subrogation rights endorsements necessary to affect the provisions below; and
F. Provide that the commercial general liability policy and the coverage provided shall be primary, that Landlord although an additional insured, shall nevertheless be entitled to recovery under such policy for any damage to Landlord by reasons of acts or omissions of Tenant, and that coverage carried by Landlord shall be noncontributory with respect to policies carried by Tenant.
6.4 Mutual Waiver of Subrogation. The Parties hereto release each other and their respective authorized employees, agents, and representatives, from any and all claims, demands, loss, expense, or injury to any person, or to the Premise or to personal property, including, but not limited to, furnishings, fixtures or equipment located therein, caused by or resulting from perils, events, or happenings which are the subject of insurance in force at the time of such loss.
Each Party shall cause each insurance policy obtained by it to provide that the insurer waives all right of recovery by way of subrogation against either party in connection with any damage covered by any policy. Neither Party shall be liable to the other for any damage caused by fire or any of the risks insured against under any insurance policy in effect as required by this Lease.
6.5 No Ownership. Nothing contained in Article VI shall be construed as creating or implying the existence of: (i) any ownership by Tenant of any fixtures, additions, alterations, or improvements in or to the Premises, or (ii) any right on Tenant’s part to make any addition, alteration, or improvement in or to the Premises.
6.6 Indemnity. Tenant agrees, except as to the sole negligence or willful misconduct of Landlord, to fully indemnify, defend, and hold Landlord, its elected and appointed officials, officers, employees, agents, successors and assigns, free and harmless from any and all third- party claims, liability, loss, damage, costs, or expenses, including attorney fees, resulting from Tenant’s occupation or use of the Premises, specifically including, without limitation, any claim of liability, loss or damage arising by reason of:
A. The death or injury of any person or persons, including Tenant or any person who is an employee, agent, guest, or customer of Tenant, or by reason of the damage or destruction of any property, including property owned by Tenant or any person who is an employee, agent, guest, or customer of Tenant, and caused or allegedly caused by either the condition of the Premises, or some act or omission of Tenant or of some agent, contractor, employee, servant, guest, or customer of Tenant on the Premises; B. Any work performed on the Premises or materials furnished to the Premises at the instruction or request of Tenant; and
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 106 of 486 12 C. Tenant’s failure to perform any provision of this Lease, or to comply with any requirement of local, state, or federal law or any requirement imposed on Tenant or the Premises by any duly authorized governmental agency or political subdivision.
6.7 Waiver and Release. Tenant waives and releases all claims against Landlord, its employees, and agents with respect to the matters for which Landlord has disclaimed liability pursuant to the provisions of this Lease. In addition, Tenant agrees that Landlord, its elected and appointed officials, employees, agents, successors and assigns shall not be liable for any loss, injury, death, or damage (including consequential damages) to persons, property, or Tenant’s business occasioned by theft; acts of God; public enemy; injunction; riot; strike; insurrection; war; terrorism; court order; order of governmental body or authority unless it is an order issued by Landlord; earthquake; fire; explosion; falling objects; water; rain; snow; leak or flow of water, or by dampness or from the breakage, leakage, obstruction, or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or light fixtures; or from construction, repair, or alteration of the Premises; or from any acts or omissions of any visitor of the Premises; or from any cause beyond Landlord’s control.
ARTICLE VII
REPAIRS AND MAINTENANCE; ALTERATIONS
7.1 Tenant Obligations. Tenant shall maintain in good condition and repair, the entirety of the Premises (except that portion of Premises to be maintained by Landlord), including the Tenant Improvements and all fixtures, and the HVAC systems, as well as the landscaping and all parking areas (collectively “Premises Systems”). Notwithstanding the foregoing, in case of complete HVAC failure or breakage that is beyond repair as documented by a third-party professional, Landlord and Tenant shall equally pay for the replacement of the HVAC system with Landlord and Tenant each paying 50% of the cost. In such case, Tenant shall obtain at least three bids, with Landlord having final approval of the contactor for such work.
7.2 Alterations. Tenant shall not make any alterations, improvements or additions in, on or about any of the Premises, without first obtaining Landlord’s prior written consent.
A. All alterations, improvements, or fixture additions in, on or about the Premises, whether temporary or permanent in character, shall immediately become Landlord’s property and at the expiration of the Term of this Lease shall remain on the Premises without compensation to Tenant.
B. By notice given to Tenant no less than ninety (90) calendar days prior to the expiration of the Term of this Lease, Landlord may require that any alterations, improvements, or fixture additions in, on or about the Premises be removed by Tenant. In that event, Tenant shall remove the alterations, improvements or fixture additions at Tenant’s sole cost and expense and shall restore the Premises to the condition in which the Premises was before the alterations, improvements, and additions were made, reasonable wear and tear accepted.
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 107 of 486 13 7.3 Mechanic’s Liens. Unless otherwise provided in Section 1.8, Tenant shall pay or cause to be paid all costs and charges for: (i) work done by Tenant or caused to be done by Tenant, in or to the Premises, and (ii) all materials furnished for or in connection with such work.
Tenant shall indemnify the Landlord against and hold the Landlord and the Premises free, clear and harmless of and from any liens or claims of liens arising out of any work performed, materials furnished, or obligations incurred by the Tenant, and Tenant shall be responsible for the removal of any such liens and all costs to remove same. Failure to remove any such liens within thirty (30) calendar days of written request by Landlord shall constitute a default of this Lease. At its election, but without having any obligation to do so, the Landlord may pay such liens not so removed by the Tenant and the amount expended by Landlord shall be paid by Tenant within fifteen (15) calendar days after delivery of a statement for the expense.
7.4 Landlord Obligations. Landlord shall repair, maintain in good and tenantable condition and replace, as necessary, the roof, exterior walls and structural components of the Premises (including the structural floor) and all meters, pipes, conduits, equipment (excluding heating, ventilation and air conditioning equipment), components and facilities that supply the Premises with utilities (except as the appropriate utility company has assumed these duties); provided however that Landlord shall not be required to make repairs necessitated by reason of any acts or omissions of Tenant, including negligence or willful misconduct of Tenant or anyone claiming under Tenant, by reason of the failure of Tenant to perform or observe any conditions or agreements of this Lease, or by reason of improvements made by Tenant or anyone claiming under Tenant. Notwithstanding the foregoing, in case the Premises requires a new roof for the entirety of the building as documented by a third-party professional, Landlord and Tenant shall equally pay for the replacement roof with Landlord and Tenant each paying 50% of the cost. In such case, Tenant shall obtain at least three bids, with Landlord having final approval of the contractor for such work.
ARTICLE VIII
DAMAGE AND DESTRUCTION; CONDEMNATION
8.1 Damage or Destruction of Premises. Unless as the result of negligence or intentional unlawful act of Tenant, if during the term of this Lease, any portion of the Premises shall be damaged by fire or other catastrophic cause, so as to render such portion of the Premises untenable, the obligations under this Lease may be suspended while such portion of the Premises remains untenable. In the event of such damage, Tenant shall give Landlord notice of such untenable conditions and the Landlord shall elect in its sole discretion, whether to repair the Premises or to cancel this Lease with respect thereto. It shall notify Tenant in writing of its election within thirty (30) calendar days after service of notice by Tenant. In the event that Landlord elects not to repair the Premises or portion thereof, this Lease shall be deemed canceled as of the date the damage occurred with respect to the applicable portion(s).
8.2 Condemnation. If all or any part of the Premises shall be condemned or taken as a result of the exercise of the power of eminent domain, including any conveyance or assignment in lieu of any condemnation or taking, this Lease shall terminate as to the part so taken as of the date of taking, and in the case of a partial taking, either Landlord or Tenant shall have the right to terminate this Lease as to the balance of the Premises by notice to the other within thirty (30)
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 108 of 486 14 calendar days after the date of such taking; provided, however, that a condition to the exercise by Tenant of such right to terminate shall be that the portion of the Premises taken shall be of such extent and nature as substantially to handicap, impede or impair Tenant’s use of the balance of the Premises. In any event, Landlord shall be entitled to any and all compensation, damages, income, rent, awards and any interest therein whatsoever which may be paid or made in connection therewith, and Tenant shall have no claim against Landlord for the bonus value of any unexpired Term of this Lease or otherwise; provided, however, that nothing herein shall prevent Tenant from pursuing a separate award against the taking entity, specifically for its relocation expenses or for the taking of any personal property or trade fixtures belonging to Tenant, so long as such separate award to Tenant does not diminish any award otherwise due Landlord as a result of such condemnation or taking.
ARTICLE IX
ASSIGNMENT; SUBLETTING; PROCESSING
9.1 Assignment and Subletting. Tenant shall not assign, mortgage, pledge, encumber, or hypothecate this Lease or any interest herein (directly, indirectly, voluntarily, or involuntarily, by operation of law, or otherwise) or sublet the Premises or any part thereof, or permit the use of the Premises by anyone other than Tenant without the prior written consent of Landlord first being obtained. If Tenant is a corporation, a limited liability company or a partnership, the transfer (as a consequence of a single transaction or any number of separate transactions) of fifty percent (50%) or more of the beneficial ownership interest of the voting stock of Tenant issued and outstanding as of the date hereof, the membership interests in Tenant or the partnership interests in Tenant, as the case may be, shall constitute an assignment hereunder for which such consent is required. Further, Tenant shall not assign this Lease or sublet the Premises or any portion thereof to any corporation which controls, is controlled by or is under common control with Tenant, or to any corporation resulting from merger or consolidation with Tenant, or to any person or entity which acquires all the assets as a going concern of the business of Tenant that is being conducted on the Premises, without the prior written consent of Landlord. Any of the foregoing acts without such consent shall be void and, at the sole option of Landlord, constitute an Event of Default entitling Landlord to terminate this Lease and to exercise all other remedies available to Landlord under this Lease and at law.
A. In the event that Tenant should desire to sublet the Premises or any part thereof, or assign this Lease, Tenant shall provide Landlord with written notice of such desire at least sixty (60) calendar days in advance of the proposed effective date of such subletting or assignment. Such notice shall include: (i) the name of the proposed subtenant or assignee; (ii) the nature of business to be conducted by the proposed subtenant or assignee in the Premises; (iii) the terms and conditions of the proposed assignment or sublease including but not limited to a detailed description of all compensation in cash or otherwise which Tenant would be entitled to receive in connection with such assignment or sublease; and (iv) the most recent financial statements or other financial information concerning the proposed subtenant or assignee as Landlord may require. At any time within thirty (30) calendar days following receipt of Tenant’s notice, Landlord may by written notice to Tenant elect to: (i) terminate this Lease as to the space affected by the proposed subletting or assignment, as of the effective date of the proposed subletting or assignment; (ii) consent to the proposed subletting of the Premises or assignment of
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 109 of 486 15 this Lease; or (iii) disapprove of the proposed subletting or assignment. Landlord may elect to terminate this Lease as to the space affected by the proposed assign or subletting in its sole and absolute discretion. If Landlord does not elect to terminate this Lease, however, Landlord shall not unreasonably withhold its consent to a proposed subletting or assignment.
B. Subject to obtaining Landlord’s consent in accordance with the requirements of Section 9.1, in order for any assignment or sublease to be binding on Landlord, Tenant must deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the subtenant or assignee shall expressly assume all obligations of Tenant under this Lease as to the portion of the Premises subject to such assignment or sublease. Any purported sublease or assignment will be of no legal force or effect unless and until the proposed sublease has been consented to, in writing, by Landlord and a fully executed copy thereof has been received by Landlord.
C. Regardless of Landlord’s consent, no subletting or assignment shall release Tenant or any guarantor of Tenant, of its or their obligations, or alter the primary liability of Tenant and its guarantor(s), if any, to provide Monthly Rent and to perform all other obligations to be performed by Tenant hereunder. The acceptance of payments by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any subsequent or further assignment, subletting, hypothecation or third party use or occupancy. In the event of default by any assignee or successor of Tenant in the performance of any of the terms of this Lease, Landlord may proceed directly against Tenant and/or its guarantor(s), if any, without the necessity of exhausting remedies against said assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, without notifying Tenant and/or its guarantor(s), if any, or any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant and/or its guarantor(s), if any, or any successor of Tenant of liability under this Lease.
D. Landlord shall have the unconditional right to sell, encumber, pledge, convey, transfer, and/or assign any and all of its rights and obligations under the Lease without the consent of or notice to Tenant or any guarantor(s) of Tenant’s obligations hereunder.
9.2 Processing Fee. Tenant agrees to pay Landlord an administrative fee of One Thousand Dollars ($1,000.00) and an additional amount for reasonable attorney’s fees incurred in conjunction with the processing and document review of any requested transfer, assignment, subletting, license, or concession agreement, change of ownership, mortgage or hypothecation of the Lease or Tenant' s interest in and to the Premises.
ARTICLE X
HOLDING OVER; SALE OF PREMISES; TERMINATION
10.1 No Right to Holdover. Tenant has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. If, without objection by Landlord, Tenant holds possession of the Premises after expiration of the Term, Tenant shall
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 110 of 486 16 become a Tenant from month-to-month upon the terms herein specified, except that the monthly rent shall equal to one hundred and fifty percent (150%) of the monthly rent payable by Tenant at the expiration of the Term. In addition, Tenant shall continue to pay all other amounts due to Landlord hereunder. Each Party shall give the other notice at least one (1) month prior to the date of termination of such monthly tenancy of its intention to terminate such tenancy. If, after objection by Landlord thereto, Tenant holds possession of the Premises after expiration of the Term, Tenant shall constitute a Tenant at sufferance and without in any way waiving the wrongful holding over of the Premises by Tenant, Landlord shall be entitled to receive for each month or portion thereof during which Tenant wrongfully holds over at the Premises monthly rent equal to two hundred percent (200%) of the monthly rent payable by Tenant at the expiration of the Term together with all other amounts otherwise due to Landlord hereunder.
Landlord' s receipt of increased monthly rent under this Section 10.1 shall not constitute an extension of the Term nor shall it constitute a waiver of Tenant' s wrongful holding over and shall not prejudice any other rights or remedies available to Landlord under this Lease or by law.
10.2 Sale of Premises. In the event Landlord, or any successor owner of the Premises, shall sell or convey the Premises, all liabilities and obligations on the part of the Landlord, or such successor owner, under this Lease accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner.
10.3Early Termination of Tenancy. Notwithstanding any provision of this Lease to the contrary, Landlord reserves the right, in its sole and absolute discretion, and independent of whether or not Tenant may or may not be in default of this Lease, to terminate this Lease at any time by providing sixty (60) days advance written notice to Tenant of such termination. In such event, Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to do so, Landlord may, without notice and without prejudice to any other remedy Landlord may have, enter upon and take possession of the Premises and expel or remove Tenant and its effects without being liable to prosecution or any claim for damages therefore. Tenant shall owe Landlord for all loss and damages which Landlord may suffer by reason of such failure of Tenant to vacate. Tenant shall have the right to terminate this Lease after the first year of its tenancy by providing Landlord ninety (90) days advance written notice to Landlord of such termination.
10.4No Relocation Assistance. Tenant acknowledges that Tenant may be displaced from the Premises, but Tenant hereby agrees that Landlord shall have no obligation to Tenant under the California Relocation Assistance and Real Premises Acquisition statutes and guidelines. Tenant, after diligent review and consideration of possible impacts, hereby waives and forever releases Landlord, including its successors, officers, employees, attorneys, agents, representatives and anyone else acting on Landlord’s behalf, of and from any and all claims, demands, actions or causes of action, obligations, liabilities, or claims for further compensation, known or unknown, based upon or relating to the California Relocation Assistance and Real Premises Acquisition statutes and guidelines and Landlord’s subsequent use and development of the Premises, or Tenant’s displacement therefrom. By such release, Tenant expressly waives its rights pursuant to California Civil Code Section 1542 which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 111 of 486 17 her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
ARTICLE XI
SUBORDINATION; ESTOPPEL CERTIFICATES
11.1 Subordination. This Lease and the rights of Tenant hereunder are subject and subordinate to any ground or underlying lease and the lien of the holder of or beneficiary under a mortgage or deed of trust which now or in the future encumbers the Premises and to any and all advances made thereunder, and interest thereon, and all modifications, renewals, supplements, consolidations and replacements thereof. Tenant agrees that any ground or underlying landlord or lender may at its option, unilaterally elect to subordinate in whole or in part, such ground or underlying lease or the lien of such mortgage or deed or trust to this Lease. Such subordination or priority of this Lease, as the case may be, shall be effective without the necessity of executing any further instrument or agreement to effect such subordination or priority; provided, however, that Tenant agrees to execute, acknowledge, and deliver to Landlord upon demand any and all instruments required by Landlord or any such ground or underlying Landlord or lender evidencing the subordination or priority of this Lease, as the case may be. Tenant hereby irrevocably appoints Landlord as its agent and attorney-in-fact to execute, acknowledge, and deliver any such instruments in the name of and on behalf of Tenant if Tenant fails to so execute, acknowledge and deliver such instruments within ten (10) calendar days after written request therefore.
11.2 Estoppel Certificates. At any time and from time to time, Tenant shall execute, acknowledge and deliver to Landlord, within five (5) calendar days after request by Landlord, a certificate certifying, among other things: (i) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect, as modified, and stating the date and nature of each modification); (ii) the date, if any, to which monthly rent (if applicable) and other sums payable hereunder have been paid; (iii) that no notice has been received by Tenant of any default which has not been cured except as to defaults specified in said certificate; and (iv) such other matters as reasonably may be requested by Landlord.
ARTICLE XII
DEFAULT; REMEDIES; DISPUTE RESOLUTION
12.1 Default; Breach.
A. Default. A “Default” by Tenant is defined as a failure by Tenant to observe, comply with, or perform any of terms, covenants, conditions, or rules applicable to Tenant under this Lease, and shall include but not be limited to:
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 112 of 486 18 (1) Failure to provide the Monthly Rent set forth in Section 1.5 or other amounts owing pursuant to the terms of this Lease.
(2) Vacation or abandonment of the Premises for a period time exceeding five (5) calendar days.
(3) Failure by Tenant to provide Landlord with reasonable evidence of insurance required under this Lease.
(4) Failure by Tenant to timely deliver to Landlord any instrument or assurances required pursuant to this Lease, including an estoppel certificate pursuant to Section
11.2 of this Lease.
(5) Failure by Tenant to provide Landlord with reasonable written evidence (in duly executed original form, if applicable) of compliance with Applicable Laws when requested.
(6) Occurrence of any of the following events: (i) the making by Tenant of any general arrangement or assignment for the benefit of creditors; (ii) Tenant’s becoming a “debtor” as defined in 11 U.S. Code Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or (iv) the attachment, execution, or other judicial seizure of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of this Subparagraph 12.1(A)(6) is contrary to any Applicable Law, such provision shall be of no force or effect, and shall not affect the validity of the remaining provisions. (7) Failure of Tenant to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of one (1) calendar day following written notice thereof by or on behalf of Landlord to Tenant. (8) Tenant making or furnishing any warranty, representation, or statement to Landlord in connection with this Lease, or any other agreement made by Tenant for the benefit of Landlord, which is or was false or misleading in any material respect when made or furnished. (9) Assignment or sublease of this Lease or any portion of the Premises, or attempt to assign or sublease this Lease or any portion of the Premises, by Tenant in violation of Section 9.1.
(10) Tenant committing waste on the Premises.
(11) Failure of Tenant to timely complete the Tenant Improvements in accordance with Exhibit “C.”
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 113 of 486 19 (12) Failure of Tenant to otherwise perform, satisfy, or abide by any of the terms, covenants, conditions, or provisions of this Lease.
B. Breach. In the event that Tenant is in Default of this Lease, Landlord shall notify Tenant in writing of the nature of the Default and of the corrective action to be taken. If corrective action is not commenced within ten (10) business days after receipt of written notice and not completed within thirty (30) days thereafter, or longer, if Tenant is diligently pursing corrective action, such failure by Tenant shall constitute a “Breach,” and Landlord may pursue those remedies set forth in Section 12.2.
12.2 Remedies. On the occurrence of Tenant’s Breach of this Lease, Landlord shall have the right to pursue any one or more of the following remedies in addition to any other remedies now or later available to Landlord, either in law or equity, which remedies shall not be exclusive, but shall instead be cumulative: (i) remove all persons and property from the Premises and repossess same, in which case any and all of Tenant’s property that Landlord removes from the Premises may be stored in a public warehouse or elsewhere at the cost of, and for the account of, Tenant; or (ii) allow Tenant to remain in full possession and control of the Premises.
A. If Landlord chooses to repossess the Premises, then this Lease will automatically terminate in accordance with the provisions of California Civil Code Section 1951.2. In the event of such termination of the Lease, Landlord may recover from Tenant:
(1) The worth at the time of award of the unpaid rent which had been earned at the time of termination, including interest at the maximum rate allowed by law;
(2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided, including interest at the maximum rate allowed by law; (3) The worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and (4) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant' s failure to perform its obligations under this Lease or which, in the ordinary course of things, would be likely to result therefrom.
B. “The worth at the time of the award,” as used in Section 12.2(A)(1)-(2) shall be computed by allowing interest at the maximum rate allowed by law. “The worth at the time of the award” as used in 12.2(A)(3) shall be computed by discounting the amount at the discount rate of the Federal Reserve Bank at the time of the award, plus one percent (1%).
C. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including, without limitation, lost rents, eviction costs, attorney's
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 114 of 486 20 fees, brokers' commissions, expenses of remodeling the Premises required by the re-letting, and like costs. Re-letting can be for a period shorter or longer than the remaining Term. Tenant shall pay to Landlord the rent due under this Lease on the dates the rent is due, unless Landlord notifies Tenant that Landlord elects to terminate this Lease. After Tenant's Breach and for as long as Landlord does not terminate Tenant's right to possession of the Premises, if Tenant obtains Landlord's consent, Tenant shall have the right to assign its interest in this Lease, or sublet all or a portion of the Premises, but Tenant shall not be released from liability or its obligations under this Lease. Landlord's consent to a proposed assignment or subletting shall be as required in Section 9.1.
D. If Landlord elects to re-let the Premises, then any rent that Landlord receives from re-letting shall be applied to the payment of: (i) first, any indebtedness from Tenant to Landlord other than rent due from Tenant; (ii) second, all costs incurred by Landlord in re-letting, including costs for maintenance; and (iii) third, Rent due and unpaid under this Lease.
E. After deducting the payments referred to in Section 12.2, any sum remaining from any rent that Landlord receives from re-letting shall be held by Landlord and applied in payment of future rent as rent becomes due under this Lease. In no event shall Tenant be entitled to any excess rent received by Landlord. If, on the date rent is due under this Lease, the rent received from any re-letting is less than the rent due on that date, then Tenant shall pay to Landlord, in addition to the remaining rent due, all costs which Landlord incurred in re-letting, including without limitation maintenance, that remain after applying the rent received from the re-letting, as provided in Section 12.2.
12.3 Continuation after Breach. Even if Tenant has breached this Lease and/or abandoned the Premises, this Lease shall continue in full force and effect for so long as Landlord does not terminate Tenant’s right to possession as provided in Section 12.2 above, and Landlord may enforce all its rights and remedies under this Lease. In such event, Landlord may exercise all of the rights and remedies of a Landlord under California Civil Code Section 1951.4, or any successor statute. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interest under this Lease shall not constitute a termination of Tenant’s right to possession.
12.4 Other Relief. In the event of re-entry or taking possession of the Premises, Landlord shall have the right but not the obligation to remove all or any part of the trade fixtures, furnishings, equipment, and personal property located in the Premises and to place the same in storage at a public warehouse at the expense and risk of Tenant or to sell such property in accordance with Applicable Law. The remedies provided for in this Lease are in addition to any other remedies available to Landlord at law or in equity, by statute or otherwise. Any amounts so expended by Landlord shall be immediately payable by Tenant.
12.5 Landlord's Right to Cure Default. All agreements and provisions to be performed by Tenant under any of the terms of this Lease shall be at its sole cost and expense. If Tenant shall fail to perform any other act on its part to be performed hereunder and such failure shall not be cured within the applicable cure period provided for herein, if any, Landlord may,
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 115 of 486 21 but shall not be obligated so to do, and without waiving or releasing Tenant from any obligations of Tenant, make any such payment or perform any such other act on Tenant's part to be made or performed as provided in this Lease. All sums so paid by Landlord and all necessary incidental costs shall be on Tenant's account and shall be payable to Landlord on demand.
12.6 Dispute Resolution. Any dispute arising out of or relating to this Lease, or breach thereof, shall be first submitted to the senior management of each Party for resolution during a thirty (30) calendar day dispute resolution period. Notice must be in writing and served pursuant to Section 13.1 herein. The foregoing dispute resolution period shall run concurrently with any notice and cure periods provided for herein. Should the foregoing dispute resolution between senior management of each Party fail to resolve the dispute. The Parties shall endeavor to resolve the dispute via mediation with a mediation services provider that is mutually agreeable by both Parties before either Party may file a lawsuit or seek arbitration.
ARTICLE XIII
GENERAL PROVISIONS
13.1 Attorneys’ Fees. Should any action or proceeding be commenced by Landlord to enforce the provisions provided in this Lease, or should any litigation be commenced between the parties to this Lease concerning said Property, this Lease, or the rights and duties of either in relation thereto, the prevailing party in such litigation shall be entitled, in addition to such other relief as may be granted as the result of said litigation, to a reasonable sum for its attorneys’ fees as determined by the court.
13.2Notice. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, return receipt requested and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice or (ii) if mailed, three (3) business calendar days after the date of posting by the United States post office.
To Landlord: To Tenant:
City of Indio Finders Keepers Records
100 Civic Center Mall 82139 Bliss Ave
Indio, CA 92201 Indio, CA 92201
Attn: City Manager Attn: Sean Cox
A. Notice of change of address shall be given by written notice in the manner detailed in this Section. Rejection or other refusal to accept, or the inability to deliver because of changed address of which no notice was given, shall be deemed to constitute receipt of the notice, demand, request or communication sent.
B. Tenant hereby agrees that service of notice in accordance with the terms of this Lease shall be in lieu of the methods of service specified in California Code of Civil Procedure Section 1161. The provisions of California Code of Civil Procedure Section 1013(a),
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 116 of 486 22 extending the time within which a right may be exercised or an act may be done, shall not apply to a notice given pursuant to this Lease.
13.4 Counterparts. This Lease may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
13.5 Captions. Any captions to, or headings of, the sections or subsections of this Lease are solely for the convenience of the parties hereto, are not a part of this Lease, and shall not be used for the interpretation or determination of the validity of this Lease or any provision hereof.
13.6 Amendment of Agreement. The terms of this Lease may not be modified or amended except by an instrument in writing executed by each of the Parties hereto.
13.7 Waiver. The waiver by Landlord or Tenant of any agreement, condition, or provision herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other agreement, condition or provision herein contained, nor shall any custom or practice which may grow up between the Parties in the administration of the terms hereof be construed to waive or to lessen the right of Landlord or Tenant to insist upon the performance by Tenant or Landlord in strict accordance with said terms. The subsequent acceptance of any payment hereunder by Landlord shall not be deemed to be a waiver of any breach by Tenant of any agreement, condition or provision of this Lease, other than the failure of Tenant to pay the particular amount so accepted. Specifically, Landlord may accept any payment from Tenant and apply same to any amount owing hereunder notwithstanding any stated intent or instruction on the part of Tenant to the contrary and without waiving or compromising any claim that such payment was less than the payment actually due from Tenant.
13.8 No Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work as a merger, and shall, at the option of Landlord, terminate all or any existing subleases or sub-tenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases or sub-tenancies.
13.9 Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the State of California. Should a dispute arise out of this Lease, such dispute shall be resolved with a mediation service located in Riverside County or in the Superior Court of Riverside County.
13.10 Fees and Other Expenses. Except as otherwise provided herein, each of the Parties shall pay its own fees and expenses in connection with this Lease, including any permit or license fees which Tenant may be required to obtain pursuant to its occupancy.
13.11 Authority to Execute Agreement. Landlord and Tenant represent and warrant that the individuals who have signed this Lease have the legal power, right and authority to enter into this Lease so as to bind each Party for whom they sign to perform as provided herein.
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 117 of 486 23 13.12 Successors and Assigns. This Lease shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. Tenant shall be responsible for the acts or omissions of its subtenant(s), if any.
13.13 Incorporation of Exhibits. Each of the Exhibits to this Lease are incorporated by reference as though fully set forth herein.
13.14 Entire Agreement. This Lease supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between Tenant and Landlord as to the subject matter hereof. No subsequent agreement, representation, or promise made by either Party hereto, or by or to any employees or agents of either Party shall be of any effect unless it is in writing and executed by the party to be bound thereby.
IN WITNESS WHEREOF, the Parties hereto have executed this Lease as of the calendar day and year written below.
LANDLORD:
CITY OF INDIO, a California
municipal corporation
By: ____________________________
City Manager
Date: __________________________
ATTEST:
By: _____________________________
City Clerk
Date: ___________________________
APPROVED AS TO FORM:
By: ____________________________
City Attorney
TENANT:
SEAN COX, an individual dba “Finders
Keepers Records”
By: ____________________________
Name: Sean Cox
Title: Owner
Date: ___________________________
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AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 119 of 486 EXHIBIT “A”
Premises/Lease Plan
(Attachment 2)
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 120 of 486 EXHIBIT “B”
General Rules and Regulations
1. All floor areas of the Premises (including vestibules, entrances and air returns), doors, fixtures, windows, and plate glass shall be maintained by Tenant, in a clean, safe and good condition.
2. All trash, refuse and waste materials shall be stored in adequate containers, approved by Landlord and regularly removed from the Premises. These containers shall not be visible to the general public and shall not constitute a health or fire hazard or nuisance to any tenant. In the event that Tenant shall fail to remedy such a health or fire hazard or nuisance, if the same is caused by Tenant, within five (5) days after written notice by Landlord, Landlord may remedy and/or correct such health or fire hazard or nuisance at the expense of Tenant. Tenant must obtain a separate temporary dumpster to receive its move-in merchandising debris, and construction debris from any Tenant Improvements or alterations. Should it be necessary for Landlord to have Tenant's solid or liquid rubbish cleaned up, the cost for such cleaning shall be charged back to Tenant along with an administrative fee of fifteen percent (15%).
3. No portion of the Premises shall be used for lodging purposes. No cooking is allowed on the Premises unless Tenant is a restaurant.
4. Neither sidewalks nor walkways shall be used to display, store or place any merchandise, equipment or devices, except in connection with sidewalk sales held with Landlord's prior written approval in each instance. Notwithstanding the foregoing, Tenant may display up to two (2) non-illuminated a-frame signs; one to be placed on the sidewalk in front of the exterior of the Premises and one to be placed in the rear of the exterior of the Premises. Such signs will be removed and stored inside the Premises once Tenant has closed its business for the day.
5. No public telephone, newsstand, shoeshine stand, refreshment, vending or other coin operated machine shall be installed or placed on the sidewalk or walkway area adjacent to the Premises without Landlord's prior written approval in each instance. No public telephones are allowed within or outside of the Premises (other than Landlord provided public telephones).
6. No person or persons shall use the Premises, or any part thereof, for conducting therein an auction, distress or fire sale or bankruptcy sale, or "going out of business" sale or "lost our lease" sale, without Landlord's prior written consent in each instance.
7. No portion of the Premises shall be used for the storage of any merchandise, materials or other properties, other than those reasonably necessary for the operation of Tenant's business.
Landlord may, from time to time, inspect the Premises to ensure compliance with the foregoing provisions.
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 121 of 486 2 8. No display areas of the Premises shall be left vacant, and Tenant shall not black out or otherwise obstruct the windows of the Premises, without Landlord's prior written consent. Signs in the windows may be limited and must be approved by the Landlord in writing.
9. Landlord shall have the absolute right to enter upon the Premises to perform such cleaning and clearing of the pipes and drains servicing the Premises (including roto-rooter service), and any grease traps and exhaust systems servicing the Premises, as Landlord shall deem necessary.
10. If Tenant provides its customers with the use of shopping carts and/or baskets, Tenant shall be responsible for causing said carts and/or baskets to be stored only in areas designated by Landlord. If Tenant fails to routinely collect and store said carts as necessary (at least twice on a daily basis), Landlord may assume the responsibility of same and may bill Tenant on an estimated monthly basis for such service.
12. The sidewalks, exits and entrances shall not be obstructed by Tenant or used by it for any purpose other than for ingress to and egress from the Premises.
13. Tenant shall not alter any lock or install any new or additional locks or any bolts on any door of the Premises without the prior written consent of Landlord (except as to safes and vaults of the Tenant). Installation of floor safes will require prior written approval by Landlord and must remain with the Premises at termination.
14. The toilet rooms and urinals, wash bowls and other apparatus therein shall not be used for any purpose other than that for which they were constructed and no foreign substance of any kind whatsoever shall be placed therein. The expense of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the Tenant who, or whose employees, invitees, contractors or agents, shall have caused it.
15. Except as to normal pictures and furnishings, Tenant shall not mark, drive nails, screw or drill into the partitions, woodwork or plaster or in any way deface the Premises or any part thereof. No boring, cutting or stringing of wires shall be permitted except with the prior written consent of Landlord and as Landlord may direct. Tenant shall not lay linoleum tile, carpet or other similar floor covering so that the same shall be affixed to the floor of the Premises in any manner except as approved by Landlord. The expense of repairing any damage resulting from a violation of this rule or removal of any floor covering shall be borne by Tenant.
16. Tenant shall not use, keep or permit to be used or kept, any noxious gas or substance in the Premises, or permit or suffer the Premises to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Premises by reason of noise, odors, and/or vibrations, or interfere in any way with other tenants or those having business therein. Tenant shall not make or permit to be made any loud or disturbing noises or disturb or interfere with neighbors’ use and enjoyment of their property, whether by the use of any musical instrument, radio, television, video or audio recording, shouting, or in any other manner. Tenant shall not throw anything out of doors.
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 122 of 486 3 17. Tenant shall not use or keep in the Premises any kerosene, gasoline or flammable or combustible fluid or material, or use any method of heating or air conditioning other than that supplied or permitted by Landlord.
18. Landlord will direct electricians as to where and how electrical, telephone, television and cable wires are to be introduced to the Premises. No boring or cutting for wires will be allowed without the prior consent of Landlord. The location of telephone call boxes and other office equipment in the Premises shall be subject to the approval of Landlord. All such consents and approvals by the Landlord must be in writing.
19. Tenant shall be responsible for assuring that doors to the Premises are not left unlocked during non-business hours, except while moving furniture or other items in or out of the Premises.
20. Landlord reserves the right to exclude or expel from the Premises any person who, in the judgment of Landlord, is intoxicated or under the influence of liquor or drugs, or is violating the rules and regulations of the Premises.
22. The requirements of Tenant will be attended to only upon application to Landlord’s designated property manager. Employees of Landlord shall have no obligation to perform any work for Tenant or do anything outside their regular duties for Tenant unless under special instructions from Landlord, and no employee shall have any obligation to admit any person (Tenant or otherwise) to any office of Landlord without specific instruction from Landlord.]
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 123 of 486 EXHIBIT “C”
Schedule of Performance
To be included prior to execution of the agreement
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 124 of 486 Attachment 2
Property Location Map
(45120 and 45130 Oasis Street)
AGENDA ITEM #9.5
Approval of a Commercial Lease Agreement with Sean Cox dba Finders Keepe... Page 125 of 486 City of Indio
City Council
June 7, 2023
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Carl S. Morgan, Dir. Of Economic Development Subject: declaring certain Council City the 10359 No. Resolution of City-owned property located in various areas within the City as surplus land pursuant to the Surplus Land Act, and finding that such declaration is exempt from environmental Environmental Quality California Act under review the (“CEQA”) and the State CEQA Guidelines as it has been determined that the adoption of this Resolution will not have a significant environmental impact and is exempt from CEQA pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations as it can be seen with certainty that there is no possibility that the declaration of property as surplus may have a significant effect this authorized is development by as environment, the on no Resolution, and any future disposition will require separate environmental analysis if known. and when the details of such disposition are
RECOMMENDATION:
Adopt Resolution No. 10359 declaring certain property located in various areas within the City as surplus land and finding that such declaration is exempt from environmental review und er the California Environmental Quality Act (CEQA) and the State CEQA Guidelines as it has been determined that the adoption of this Resolution will not have a significant environmental impact and is exempt from CEQA pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations as it can be seen with certainty that there is no possibility that the declaration of property as surplus may have a significant effect on the environment, as no development is authorized by this Resolution, and any future disposition will require separate environmental analysis if and when the details of such disposition are known.
SUMMARY:
The Surplus Land Act (SLA) requires the City Council to take formal action via a public City Council meeting to declare City-owned land that is not necessary for the City's use to be surplus land prior to disposition. The Council's adoption of the proposed resolution meets the SLA requirements and reaffirms the Council's intent to declare these properties as surplus land.
BACKGROUND INFORMATION:
The Surplus Land Act as codified in Government Code Sections 54220 -54233 (“Act” or "SLA") requires public agencies to declare its property as surplus land or exempt surplus land if the properties are not necessary for the City's use. This declaration is required to occur prior to disposition of the properties. Proposed Resolution Number 10359 (Attachment 1) declares that the subject 11 parcels be declared as surplus land.
AGENDA ITEM #9.6
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The subject properties are comprised of 10 City -owned individual parcels characterized as vacant undeveloped land and one (1) three -unit residential property that is currently in escrow for purchase by the City (see Attachment 2.) These parcels, each having its own assigned Assessor's Parcel Number (APN), have been grouped into four (4) distinct property groups--each made up of contiguous parcels and further described as follows:
Property Group A (2 parcels): This City-owned property is generally located on the south/west corner of Smurr St. and Requa Avenue in the Downtown Area and is made up of vacant land.
The City zoning designation is Downtown Specific Plan.
Property Group B (6 parc els): This City-owned property is generally located adjacent to the south of the Indio Fiesta Mall, east of Monroe Avenue and north of John Nobles Avenue. These parcels are vacant lots that have a combined area of just under 19 acres. The City zoning designation for this property is Highway 111 Corridor Specific Plan.
Property Group C (2 parcels): This City-owned property is generally located along the west side of Monroe Street, just south of Avenue 49, these vacant lots are comprised of approximately
16.4 acres of vacant land. The City zoning designation for this property is Residential --Desert Estates-1 (DE-1).
Property Group D (1 parcel): This property is located at the north/west corner of Smurr Street and Wilson Avenue and contains three (3) residential units on the property. The City Zoning designation for this property is Downtown Specific Plan. This property is currently in escrow for purchase by the City and its designation as surplus land will be subject to the close of escrow and the City receiving a grant deed. The purchase and sale agreement that is associated with this property was approved by the City Council on May 17, 2023, and has been fully executed. Escrow is expected to close with the next 60 days.
The proposed Resolution authorizes the City Manager or his designee to undertake all actions required by the Act.
The proposed Resolution was assessed in accordance with the California Environmental Quality Act (“CEQA”) and the State CEQA Guidelines. It has been determined that the adoption of this Resolution will not have a significant environmental impact and is exe mpt from CEQA pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations. It can be seen with certainty that there is no possibility that the declaration of property as surplus may have a significant effect on the environment, as no development is authorized by this Resolution, and any future disposition will require separate environmental analysis if and when the details of such disposition are known.
FINANCIAL SUMMARY:
Current FY Financial
Impact:
0 In current year budget: N/A
Current FY General
Fund Impact:
0 Budget adjustment: N/A
Next FY Financial
Impact:
0 Strategic Objective:
Source of funds: N/A Fund-Org-Object
Reference:
AGENDA ITEM #9.6
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ATTACHMENTS:
Attachment 1-Proposed Resolution
Attachment 2-List of Proposed Surplus Land Properties
APPROVAL(S):
Carl S. Morgan, Dir. Of Economic Development Approved - 31 May 2023 Steven Graham, City Attorney Approved - 31 May 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 31 May 2023 Bryan H. Montgomery, City Manager Approved - 31 May 2023
AGENDA ITEM #9.6
Resolution No. 10359, declaring certain City-owned property located in v... Page 128 of 486 RESOLUTION NO. 10359
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO
DECLARING CERTAIN PROPERTY SURPLUS LAND LOCATED IN
VARIOUS AREAS WITHIN THE CITY AND FINDING THAT SUCH
DECLARATION IS EXEMPT FROM ENVIRONMENTAL REVIEW UNDER
THE CALIFORNIA ENVIRONMENTAL QUALITY ACT(“CEQA”) AND
THE STATE CEQA GUIDELINES AS IT HAS BEEN DETERMINED THAT
THE ADOPTION OF THIS RESOLUTION WILL NOT HAVE A
SIGNIFICANT ENVIRONMENTAL IMPACT AND IS EXEMPT FROM
CEQA PURSUANT T O SECTION 15061(B)(3) OF TITLE 14 OF THE
CALIFORNIA CODE OF REGULATIONS AS IT CAN BE SEEN WITH
CERTAINTY THAT THERE IS NO POSSIBILITY THAT THE
DECLARATION OF PROPERTY AS SURPLUS MAY HAVE A
SIGNIFICANT EFFECT ON THE ENVIRONMENT, AS NO
DEVELOPMENT IS AUTHORI ZED BY THIS RESOLUTION, AND ANY
FUTURE DISPOSITION WILL REQUIRE SEPARATE ENVIRONMENTAL
ANALYSIS IF AND WHEN THE DETAILS OF SUCH DISPOSITION ARE KNOWN.
THE CITY COUNCIL OF THE CITY OF INDIO HEREBY FINDS, DETERMINES, RESOLVES AND ORDERS AS FOLLOWS:
Section 1. There exists land in the City of Indio (“City”) as described in Exhibit “A” attached hereto and incorporated herein (the “Property”) that the City owns in fee simple or has an enforceable contractual right to own in fee simple; and S ection 2 . The City Council hereby declares that the Property is surplus land and is not necessary for the City’s use as defined in Government Code Section 54221(b)(1). The Property is primarily comprised of vacant underutilized land, with the exception of one parcel which contains three (3) residential units.
S ection 3 . The City Manager or his designee is hereby directed to send a notice of availability to the entities designated in Government Code Section 54222 (“designated entities”) by electronic mail or by certified mail.
Section 4. This Resolution has been reviewed with respect to the applicability of the California Environmental Quality Act (“CEQA”) and the State CEQA Guidelines. It has been determined that the adoption of this Resolution will not have a significant environmental impact and is exempt from CEQA pursuant to Section 15061(b)(3) of Title 14 of the California Code of R egulations. It can be seen with certainty that there is no possibility that the declaration of property as surplus may have a significant effect on the environment, as no development is authorized by this resolution, and any future disposition will require separate environmental analysis if and when the details of such disposition are known.
AGENDA ITEM #9.6
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Section 5. The officers and staff of the City are hereby authorized, jointly and severally, to do all things which they may deem necessary or proper to effectuate the purposes of this Resolution, and any such actions previously taken are hereby ratified and confirmed. Such actions include negotiating in good faith in accordance with the requirements of the Act with any of the designated entities that submit a written notice of interest to purchase or lease the Property in compliance with the Act.
Section 6. This Resolution shall become effective immediately upon its adoption.
Section 7. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 7
th day of June, 2023.
AYES:
NOES:
ABSENT:
ABSTAIN:
__________________________
OSCAR ORTIZ,
MAYOR
ATTEST:
_______________________________
SABDI SANCHEZ, CMC
CITY CLERK ADMINISTRATOR
AGENDA ITEM #9.6
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EXHIBIT A
LIST OF SURPLUS LAND (VARIOUS AREAS IN THE CITY)
AGENDA ITEM #9.6
Resolution No. 10359, declaring certain City-owned property located in v... Page 131 of 486 City-owned Land Proposed for Declaration as "Suplus Land" pursuant to the Surplus Land Act (SLA)
Exhibit A
Property
Grouping
(contiguous
parcels)
Assessor's Parcel
Number (APN)
Location/Street Address Property Description (approximate size) Zoning 611-222-007 On Requa Ave, west of Smurr St. Vacant Lot (4,792 sq. ft.) 611-222-008 45635 Smurr St. Vacant Lot (4,792 sq. ft.)
614-650-001 Adjacent/South of Indio Mall Vacant Lot (2.75 acres) 614-650-002 Adjacent/South of Indio Mall Vacant Lot (5.47 acres) 614-650-003 Adjacent/South of Indio Mall Vacant Lot (4.09 acres) 614-650-004 Adjacent/South of Indio Mall Vacant Lot (1.38 acres) 614-650-005 Adjacent/South of Indio Mall Vacant Lot (1.39 acres) 614-650-006 Adjacent/South of Indio Mall Vacant Lot (3.68 acres) 616-290-008 Monroe St. Vacant Lot (.94 acres)
616-290-010 49301 Monroe St. Vacant Lot (15.43 acres)
D 611-222-015 45791 Smurr St. 3-unit Residential Downtown Specific Plan
(DT-SP)
Downtown
Specific Plan
(DT-SP)
Hwy 111
Corridor Specific
Plan
Residential--
Desert Estates-1
(DE-1)
A
B
C
AGENDA ITEM #9.6
Resolution No. 10359, declaring certain City-owned property located in v...Page 132 of 486 City-owned Land Proposed for Declaration as "Suplus Land" pursuant to the Surplus Land Act (SLA)
ATTACHMENT 2
Property
Group
(contiguous
parcels)
Location/Street Address Property Description
(approximate size)
Zoning
1 611-222-007 On Requa Ave, west of Smurr St. Vacant Lot (4,792 sq. ft.) 2 611-222-008 45635 Smurr St. Vacant Lot (4,792 sq. ft.) 3 614-650-001 Adjacent/South of Indio Mall Vacant Lot (2.75 acres) 4 614-650-002 Adjacent/South of Indio Mall Vacant Lot (5.47 acres) 5 614-650-003 Adjacent/South of Indio Mall Vacant Lot (4.09 acres) 6 614-650-004 Adjacent/South of Indio Mall Vacant Lot (1.38 acres) 7 614-650-005 Adjacent/South of Indio Mall Vacant Lot (1.39 acres) 8 614-650-006 Adjacent/South of Indio Mall Vacant Lot (3.68 acres) 9 616-290-008 Monroe St. Vacant Lot (.94 acres)
10 616-290-010 49301 Monroe St. Vacant Lot (15.43 acres) D 11 611-222-015 45791 Smurr St. 3-Unit Residential (property currently in a 60- day escrow for purchase by the City)
Downtown
Specific Plan
(DT-SP)
Assessor's Parcel Number (APN)
Property Group A Property Group B Property Group C
Downtown
Specific Plan
(DT-SP)
Hwy 111
Corridor Specific
Plan
Residential--
Desert Estates-1
(DE-1)
A
B
C
AGENDA ITEM #9.6
Resolution No. 10359, declaring certain City-owned property located in v...Page 133 of 486 City-owned Land Proposed for Declaration as "Suplus Land" pursuant to the Surplus Land Act (SLA)
ATTACHMENT 2
Pg. 2 of 2
Property Group D
AGENDA ITEM #9.6
Resolution No. 10359, declaring certain City-owned property located in v...Page 134 of 486 City of Indio
City Council
June 7, 2023
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Final Tract Map for Ave. 50 Indio, LLC, Tract Map No. 37884 (Ventana) located on the north side of Avenue 50 east of Jefferson Street
RECOMMENDATION:
Find that the Final Tract Map conforms to all applicable requirements of the Subdivision Map Act and the City’s Subdivision Ordinance; approve the Final Tract Map for Ave. 50 Indio, LLC, Tract Map No. 37884 (Ventana), generally located north of Avenue 50 and east of Jefferson Street; authorize the City Clerk to attest the approved Tract Map upon completion of any technical corrections required by the City Engineer; and authorize the Mayor to sign and the City Clerk to attest the Subdivision Improvement Agreement and accept the Street and Survey Monument Improvement Bonds.
SUMMARY:
The proposed residential subdivision for Tract Map No. 37884 (Ventana) is generally located north of Avenue 50 and east of Jefferson Street. Ave. 50 Indio, LLC, has submitted the Subdivision Improvement Agreement along with Performance and Payment Bonds to guarantee the site improvements.
BACKGROUND INFORMATION:
On July 21, 2021, the City Council approved Tentative Tract Map No. 37884 and set certain conditions for the site improvements. Ave. 50 Indio, LLC, is required to comply with the conditions of the approved tentative tract map. Ave. 50 Indio, LLC, has executed the Subdivision Improvement Agreement and submitted the necessary Bonds to guarantee the completion of the site improvements for the project.
The improvements consist of Street and Survey Monument Improvements within the tract boundaries.
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$0 In current year budget: N/A
Current FY General
Fund Impact:
$0 Budget adjustment: N/A
Next FY Financial
Impact:
$0 Strategic Objective:
Source of funds: N/A Fund-Org-Object
Reference:
N/A
AGENDA ITEM #9.7
Final Tract Map for Ave. 50 Indio, LLC, Tract Map No. 37884 (Ventana) lo... Page 135 of 486 Additional Financial Details:
The subdivision lots in the Final Tract Map No. 37884 have been annexed into the Public Safety Community Facilities District 2004-1.
ATTACHMENTS:
Attachment 1
APPROVAL(S):
Timothy Wassil, Public Works Director Approved - 31 May 2023 Steven Graham, City Attorney Approved - 31 May 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 31 May 2023 Bryan H. Montgomery, City Manager Approved - 31 May 2023
AGENDA ITEM #9.7
Final Tract Map for Ave. 50 Indio, LLC, Tract Map No. 37884 (Ventana) lo... Page 136 of 486 ATTACHMENT 1
VICINITY MAP
AGENDA ITEM #9.7
Final Tract Map for Ave. 50 Indio, LLC, Tract Map No. 37884 (Ventana) lo... Page 137 of 486 ATTACHMENT - 1
COUNCIL MEETING DATE
APPLICANT
N
W E
E N G I N E E R I N G S E R V I C E S
LEGEND
PROJECT
LOCATION
JUNE 7, 2023
SUMMARY:
THE PROPOSAL RESIDENTIAL SUBDIVISION FOR TRACT MAP
No. 37884 (VENTANA) IS GENERALLY LOCATED NORTH OF
AVENUE 50 AND EAST OF JEFFERSON STREET.
AVE 50 INDIO, LLC, HAS SUBMITTED THE SUBDIVISION
IMPROVEMENT AGREEMENT ALONG WITH PERFORMANCE
AND PAYMENT BONDS TO GUARANTEE THE SITE
IMPROVEMENTS.
V I C I N I T Y M A P
S
NOT TO SCALE
AVE. 50 INDIO, LLC
MADISON ST
JEFFERSON ST
AVENUE 50
CITY OF
INDIO
CITY OF
LA QUINTA
TM 37884
AVENUE 48
AVENUE 49
AGENDA ITEM #9.7
Final Tract Map for Ave. 50 Indio, LLC, Tract Map No. 37884 (Ventana) lo... Page 138 of 486 City of Indio
City Council
June 7, 2023
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Amendment 1 to the Cooperative Agreement between the City of Indio and City of La Quinta for the Design and Construction of Three Projects with Shared City Jurisdiction
RECOMMENDATION:
Approve and Authorize the City Manager to execute Amendment 1 to the Cooperative Agreement between the City of Indio and the City of La Qui nta for the design and construction of Avenue 50 Improvements Intersection Highway 111 and Street No. ST2004), Project (City Jefferson Improvements (City Project No. ST2210), and Jefferson Street Slurry Improvements (City Project No.
ST2205).
SUMMARY:
The City of Indio and the City of La Quinta are working together to improve three (3) separate projects with shared jurisdictional boundaries. The Cooperative Agreement is being amended to increase the La Quinta share of costs for each of the project improvements to reflect updated budget estimates, as well as to expand the scope of work for the Jefferson Street and Highway 111 Intersection Improvements to include the final design and construction of the improvements.
BACKGROUND INFORMATION:
On May 18, 2022, the Council approved a Cooperative Agreement between the City of Indio and the City of La Quinta to design and construct three separate projects along the City’s jurisdiction boundary.
The first project is the Avenue 50 Improvement Project, City Project No. ST2004. The City is proposing to widen Avenue 50 to its ultimate condition between Jefferson Street and Jackson Street.
Since the City of La Quinta has jurisdiction along the southern half of Avenue 50 between Jefferson Street and Madis on Street, staff approached the City of La Quinta to partner in the development of the project and complete the needed improvements. The City has a separate agreement with the Coachella Valley Association of Governments (CVAG) under consideration to fund 75% of the project costs. The Cooperative Agreement includes the work necessary to complete the Preliminary Design and Environmental Studies phase of the project. The City of La Quinta will be funding 50% of the Local Share of this phase of the project. Final design and construction for the City of La Quinta’s section of Avenue 50 will be considered for the Cooperative Agreement through an amendment as more information is detailed regarding the right of way and construction costs. This Amendment 1 will increase the City of La Quinta share for the Preliminary Design and Environmental Studies in line with current budget estimates.
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 139 of 486 The second project is the Jefferson Street and Highway 111 Intersection Improvement Project, City Project No. ST2210. The City of La Quinta approached the City of Indio to participate in the proposed project. The proposed improvements included repaving the intersection to improve the pavement quality, rideability, and drainage. The Cooperative Agreement includes the work necessary to design the improvements. The City of La Quinta will be funding 50% of the project. This Amendment 1 will expand the scope of the agreement to include the final design and construction for Improvements.
This project was completed in December 2022.
The third project is the Jefferson Street Slurry Seal Improvements, City Project No. ST2205. With the Fiscal Year 21/22 Slurry Seal program, the City added slurry seal to Jefferson Street within the City Limits. Since the City of La Quinta has juri sdiction along Jefferson Street, staff approached the City of La Quinta to partner in the implementation of the slurry seal improvements. The Cooperative Agreement includes the construction of the necessary improvements. The City of La Quinta will be fun ding all construction improvements within their jurisdiction. This work was completed in April 2023.
This Amendment 1 will increase the City of La Quinta share of the construction costs in line with the final payment estimate provided by the contractor.
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$ 1,345,447.00 In current year budget: N/A
Current FY General
Fund Impact:
$0 Budget adjustment: N/A
Next FY Financial
Impact:
$0 Strategic Objective:
Source of funds: Various CIP Funds Fund-Org-Object
Reference:
N/A
Additional Financial Details:
The costs associated with the Cooperative Agreement are summarized below:
Project A – Avenue 50 Improvements from Jefferson to Madison Street Current Amendment 1 Difference
Total Cost $165,000 $300,000 $135,000
CVAG Share (75%) $123,750 $225,000 $101,250
City of La Quinta Share
(50%) $ 20,625 $37,500 $16,875
City of Indio Share
(50%) $ 20,625 $37,500 $16,875
Project B – Jefferson Street and Highway 111 Intersection Improvements Current Amendment 1 Difference
Total Cost $55,720 $1,082,864 $1,027,144
City of La Quinta
Share (50%) $27,860 $541,432 $513,572
City of Indio Share
(50%) $27,860 $541,432 $513,572
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 140 of 486
Project C – Jefferson Street Slurry Improvements
Current Amendment 1 Difference
Total Cost for
Construction $3,000,000 $4,000,000 $1,000,000
City of La Quinta
Share $ 540,000 $725,000 $185,000
City of Indio Share $2,460,000 $3,275,000 $815,000
The Total Indio Share of the three projects is $3,853,932, which is an increase of $1,345,447, and is budgeted through the City’s Capital Improvement Program using Transportation Funds.
The City of La Quinta has already approved this Amendment 1 to the Cooperative Agreement at their regularly scheduled council meeting on May 3, 2023.
ATTACHMENTS:
Attachment 1
APPROVAL(S):
Timothy Wassil, Public Works Director Approved - 31 May 2023 Steven Graham, City Attorney Approved - 31 May 2023
Samantha Lopez, Finance Manager Approved - 01 Jun 2023 Bryan H. Montgomery, City Manager Approved - 01 Jun 2023
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 141 of 486 ATTACHMENT 1
1ST AMENDMENT TO
COOPERATIVE AGREEMENT
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 142 of 486
1ST AMENDMENT TO
AGREEMENT
BY AND BETWEEN
THE CITY OF INDIO
A CALIFORNIA MUNICIPAL CORPORATION
AND
CITY OF LA QUINTA
A CALIFORNIA MUNICIPAL CORPORATION
DATED: JUNE 7, 2023
Form Approved 2/17/2023
1ST AMENDMENT TO AGREEMENT
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 143 of 486
This Amendment to the Cooperative Agreement for Avenue 50 Improvements; Jefferson Street and Highway 111 Intersection Pavement Rehabilitation Project; and Jefferson Street Pavement Improvements within the Shared Jurisdictional Boundary is made and entered into as of this 7th day of June , 2023, by and between the City of Indio (“Indio”), a California municipal corporation and the City of La Quinta , a California Municipal Corporation and charter city (“La Quinta”). Indio and La Quinta are sometimes hereinafter referred to as “Contracting Party” or “Party” and hereinafter collectively referred to as the “Contracting Parties” or “Parties.”
RECITALS
A. Indio and La Quinta entered into an agreement entitled “ Cooperative Agreement for Avenue 50 Improvements; Jefferson Street and Highway 111 Intersection Pavement Rehabilitation Project; and Jefferson Street Pavement Improvements within the Shared Jurisdictional Boundary ” dated December 6, 2022 (“Agreement”) for the purp ose of defining the roles, responsibilities, and cost sharing between the Parties for the proposed improvements along Avenue 50 and Jefferson Street.
B. Pursuant to Section 8.6 of the Agreement, the Parties desire to amend the Agreement to revise the Scope of Agreement and increase the Contract Sums.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the Parties do hereby enter into this Amendment which modifies and amends the Agreement as follows:
1. AMENDMENT. The Agreement is hereby modified and amended as follows:
1.1 [SCOPE FOR PROJECT B ]. Section 1.2 of the Agreement is hereby amended to add the following paragraph at the end of Section 1.2 to be integrated therein and read as follows:
Contracting Parties hereby agree to have the improvements constructed at the intersection of Jefferson Street and Highway 111. Indio will be responsible to complete or cause to complete the final design, construction, and construction management services.
1.2 [CONTRACT SUMS]. Section 2.1 of the Agreement is hereby amended to revise the project cost, with all other terms and conditions in Section 2.1 to remain in full force and effect, as follows:
Contracting Parties hereby agree to increase the “Scope A Project Cost” to three hundred thousand dollars ($300,000.00), as described in more detail in “Exhibit B-Revised”.
Contracting Parties hereby agree to increase the “Scope B Project Cost” to one million, eighty-two thousand, eight hundred sixty -four dollars ($1,082,864.00), as described in more detail in “Exhibit B-Revised”.
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 144 of 486
Contracting Parties hereby agree to increase the “Scope C Project Cost” to seven hundred twenty-five thousand dollars ($725,000.00), as described in more detail in “ Exhibit B - Revised”.
2. REMAINDER UNCHANGED. Except as specifically modified and amended in thi s Amendment, the Agreement remains in full force and effect and binding upon the Parties.
3. INTEGRATION. This Amendment consists of pages 1 through 9, inclusive, which constitute the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements, including written or verbal communications between the Parties with respect to all or any part of the transaction discussed in this Amendment.
4. SEVERABILITY. If any portion of this Amendment is declared invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
5. EFFECTIVE DATE. This Amendment shall not become effective until the date it has been executed by the appropriate authorities of Indio and La Quinta.
6. APPLICABLE LAW. The laws of the State of California shall govern the interpretation and enforcement of this Amendment.
7. REFERENCES. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this Amendment. [SIGNATURE PAGE FOLLOWS]
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 145 of 486
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to the Agreement on the date and year first written above.
CITY OF INDIO,
a California municipal corporation
BRYAN H. MONTGOMERY, City Manager
Dated:
ATTEST:
CYNTHIA HERNANDEZ, CMC, City Clerk
Indio, California
APPROVED AS TO FORM:
Steven Graham, City Attorney
City of Indio, California
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 146 of 486
IN WITNESS WHEREOF, the Contracting Parties have executed this Agreement as of the dates stated below.
CITY OF LA QUINTA,
a California municipal corporation
RECOMMENDED FOR APPROVAL:
_____________________ Dated: ________
Jon McMillen, City Manager
ATTEST:
___________________________________
Monika Radeva, City Clerk
City of La Quinta , California
APPROVED AS TO FORM:
___________________________________
William H. Ihrke, City Attorney
City of La Quinta , California
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C... Page 147 of 486 Exhibit B - Revised
Anticipated Project A Cost Estimate
Avenue 50 from Jefferson Street and Madison Street Project
Item
CVAG Share City of
Indio Share
City La
Quinta Share Total
75% 50% 50%
City Project Management $14,210.25 $2,368.38 $2,368.38 $18,947.00 Designer Project Management $21,350.25 $3,558.38 $3,558.38 $28,467.00 Survey $42,063.75 $7,010.63 $7,010.63 $56,085.00
Utility Research/Coordination $19,371.00 $3,228.50 $3,228.50 $25,828.00 Geotechnical Analysis $23,503.50 $3,917.25 $3,917.25 $31,338.00 Hydraulic Analysis $11,290.50 $1,881.75 $1,881.75 $15,054.00 CEQA Determination $37,827.75 $6,304.63 $6,304.63 $50,437.00 Preliminary Plans and Cost Estimate (30%) $55,383.00 $9,230.50 $9,230.50 $73,844.00 Total $225,000.00 $37,500.00 $37,500.00 $300,000.00
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C...Page 148 of 486
Exhibit B - Revised
Project B Cost Estimate
Jefferson Street and Highway 111 Intersection Pavement Rehabilitation Project
Item
Preliminary Engineering
City of Indio Share
50%
City La Quinta Share
50%
Total
City Project Management $5,000.00 $5,000.00 $10,000
Field Survey $3,972.00 $3,972.00 $7,944
Geotechnical Investigation & Pavement Rehabilitation
Recommendations $5,935.00 $5,935.00 $11,870
Preliminary Drainage Investigation $2,821.00 $2,821.00 $5,642 Preliminary Design $9,357.00 $9,357.00 $18,714
Preliminary Cost Estimate $775.00 $775.00 $1,550
Total $27,860.00 $27,860.00 $55,720
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C...Page 149 of 486
Exhibit B - Revised
Project B Cost Estimate – Cont.
Jefferson Street and Highway 111 Intersection Pavement Rehabilitation Project
Item
Final Design
City of Indio Share
50%
City La Quinta Share
50% Total
Field Survey $2,139 $2,139 $4,278
Street Improvement Plans $13,304 $13,304 $26,608
Signing and Striping Plans $1,530 $1,530 $3,060
Engineer’s Cost Estimate $599 $599 $1,198
Total $17,572 $17,572 $35,144
Item
Construction
City of Indio Share
50%
City La Quinta Share
50% Total
Contractor $460,000 $460,000 $920,000
Construction Management $36,000 $36,000 $72,000
Total $496,000 $496,000 $992,000
Total $541,432.00 $541,432.00 $1,082,864.00
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C...Page 150 of 486
Exhibit B - Revised
Project C Cost Estimate
Jefferson Street Crack Fill and REAS Slurry
Construction cost estimate for La Quinta’s portion on Jefferson: $725,000
• Approx. 785,000 Sq. ft.
Includes:
• REAS slurry
• Crack fill
• Striping
• Small asphalt repairs
AGENDA ITEM #9.8
Amendment 1 to the Cooperative Agreement between the City of Indio and C...Page 151 of 486 City of Indio
City Council
June 7, 2023
STAFF REPORT
To: City Council
From: Bryan Montgomery, Executive Director
Prepared by: Leila Namvar, Public Arts Analyst
Subject: Approval to install a new mural at the proposed location of 45430 Fargo Street (the former Angel View store) and appropriate a budget of up to $50,000 to commission the mural and up to $10,000 for lighting.
RECOMMENDATION:
Approve the location to install a new mural at 45430 Fargo Street's north-facing wall and appropriate a budget of up to $50,000 to commission the mural and up to $10,000 for lighting.
SUMMARY:
The property owner has reached out to staff to install a mural on the north -facing wall of the former Angel View store, on the southwest corner of Fargo Street and Civic Center Mall. The wall is one of the predominant walls in the City’s Downtown with great visibility from Jackson Street and Civic Center Mall, essentially marking one entrance to the City’s Downtown. The property owner will remodel the building into an office building by adding windows and awnings to the exterior. In addition, the property owner will also repair the subject wall to ensure it is ready for a mural installation. Staff is requesting that the City Council review the location for suitability and appropriate a budget of up to $50,000 to commission a mural and up to $10,000 for lighting. If approved, the next step is to release a Request for Proposals (RFP) for artists to submit their artwork.
BACKGROUND INFORMATION:
The Public Arts Commission has selected the subject building (45430 Fargo Street/AKA the former Angel View store) in the past to install a mural on its north -facing wall. The wall is about 130’x20’.
Staff believes the location of the building/wall lends itself organically to a mural to introduce the City to the visitors of Indio and Downtown (Attachment A).
It should be noted that the City has removed the History of Electricity in the Coachella Valley that was painted on the building located west of this building last year. Therefore, installing a new mural will add to the City’s Mural Collection, frame one of the major entrances to the City’s Downtown area, and will help reduce the opportunity for graffiti.
If approved, the next step is to release a Request for Proposals (RFP) for artists to submit their artwork for this new mural.
On May 9, 2023, the Public Arts Commission reviewed this proposal and made a recommendation to the City Council to appropriate up to $50,000 to install and paint a mural and up to $10,000 for lighting.
AGENDA ITEM #9.9
Approval to install a new mural at the proposed location of 45430 Fargo ... Page 152 of 486 Therefore, staff is requesting that the City Council approve the location to install a new mural at 45430 Fargo Street (AKA the former Angel View store) and appropriate a budget of up to $50,000 to commission the mural and up to $10,000 for lighting.
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$60,000 In current year budget: No
Current FY General
Fund Impact:
None Budget adjustment: No
Next FY Financial
Impact:
Depend on the timeline it may
impact Strategic Objective: Community
Beautification
Source of funds: Public Arts Fund Fund-Org-Object
Reference:
203521064
ALTERNATIVES:
Not approve this location for a new mural and refer the item back to the Public Arts Commission.
ATTACHMENTS:
Attachment A
APPROVAL(S):
Scott Trujillo, Deputy City Manager Pending
AGENDA ITEM #9.9
Approval to install a new mural at the proposed location of 45430 Fargo ... Page 153 of 486 Attachment A
Site Images
AGENDA ITEM #9.9
Approval to install a new mural at the proposed location of 45430 Fargo ... Page 154 of 486 North
AGENDA ITEM #9.9
Approval to install a new mural at the proposed location of 45430 Fargo ... Page 155 of 486
View from Fargo Street
View from Jackson Street
AGENDA ITEM #9.9
Approval to install a new mural at the proposed location of 45430 Fargo ... Page 156 of 486 City of Indio
City Council
June 7, 2023
STAFF REPORT
To: City Council
From: Steven Graham, City Attorney
Prepared by: Steven Graham, City Attorney
Subject: Resolution No. 10361, Authorizing the Mayor to Execute the Second Amendment to the City Manager Employment Agreement
RECOMMENDATION:
Given the City Manager's exceptional performance, the prevailing market for executive management in similar Coachella Valley cities, and the need for the City of Indio to retain its talented management staff, it is recommended that the City Council approve the Second Amendment to the City Manager's Employment Agreement, adjusting his annual salary to $305,000.
SUMMARY:
In accordance with Section 8 of the City Manager's original employment agreement entered into on May 13, 2021, the City Council evaluates the City Manager’s performance on an annual basis.
Following a successful evaluation, the City Council may c onsider cost of living increases, merit increases, and market adjustments. On May 3, 2023, the City Council evaluated the City Manager’s performance and determined that he has performed exceptionally in meeting the City Council’s objectives, enhancing rela tionships with community stakeholders, leading city personnel, and fiscal management. The City Council reviewed the City Manager’s compensation in several ways, including:
(1) Measuring in the context of increases to other city employees over the last two years (such as annual step increases, COLA adjustments, and increases resulting from the classification and compensation); (2) Measuring the City Manager’s compensation against the rise in the Consumer Price Index (CPI-U) for the Riverside County area; (3) Considering an increase in the context of the successful increases in General Fund revenues; and (4) Comparing the City Manager’s compensation to other city managers in the Coachella Valley, with consideration towards population, budget/organization size, median household income, and other factors taking into account the unique nature of the City Manager position in Indio. All four measures support an increase in compensation for the City Manager. The proposed salary of $305,000 per year is identical to th e recently approved salary of the City Manager for the City of Palm Desert and consistent with the salaries of city managers approved in 2023 by other Coachella Valley cities ($325,000 – Palm Springs, $300,000 – Rancho Mirage). This increase is deemed reas onable and appropriate considering the City Manager's exceptional performance, the prevailing salary trends in comparable cities and is in line with the Council’s commitment to retain talented and capable city management staff. Pursuant to the requirements of Government Code Section 54953, prior to the City Council taking final action, the City Attorney will orally report a summary of the recommended compensation of the City Manager.
FINANCIAL SUMMARY:
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 157 of 486 Current FY Financial
Impact:
$1,750 In current year budget: Yes
Current FY General
Fund Impact:
$963 (55%) Budget adjustment: No
Next FY Financial
Impact:
$45,000 Strategic Objective:
Source of funds: City (55%), IWA (35%), IHA
(5%), SA (5%) Fund-Org-Object
Reference:
various
Additional Financial Details:
The city manager/executive director position is funded by the City (55%), the Indio Water Authority (35%), the Indio Housing Authority (5%), and the Successor Agency for the City (5%).
ATTACHMENTS:
Reso 10361 Amendment (Indio CM Second)
Amendment (Indio CM Second)
APPROVAL(S):
Andrew Ansoorian, Dir. Of Human Resources & Risk
Management
Approved - 01 Jun 2023
Steven Graham, City Attorney Approved - 01 Jun 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 01 Jun 2023
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 158 of 486 RESOLUTION NO. 10361
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO,
CALIFORNIA AUTHORIZING THE MAYOR TO EXECUTE THE
SECOND AMENDMENT TO THE CITY MANAGER EMPLOYMENT
AGREEMENT
WHEREAS, effective May 13, 2021, Bryan Montgomery entered into an employment agreement with the City of Indio as its City Manager; and WHEREAS, pursuant to Section 8 of the employment agreement, the City Council evaluates the performance of the City Manager on an annual basis; and WHEREAS, Section 8 of the employment agreement further provides that following the City Council’s performance evaluation, the City Council may consider cost of living adjustments, market adjustments, merit increases, and other increases to the City Manager’s compensation; and
WHEREAS, the City Council has determined that the City Manager’s exceptional performance, increases to cost of living, and the market for high quality executive leadership all justify an increase to the City Manager’s compensation.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:
Section 1. Agreement Amendment
The Mayor is hereby authorized to execute the Second Amendment to the City Manager Employment Agreement attached hereto and incorporated herein.
Section 2. Amendment to Salary Schedule
The City-Wide Classification and Compensation Plan is hereby amended with respect to the position of “City Manager” only, effective the first day of the next full pay period following approval of this resolution on June 10, 2023 as set forth below:
Title Current
Grade
Current
Status
Grade Status Monthly
Min $
Monthly
Max $
Unit
City
Manager
999 Active 529 Active $25,416.67 Per
Contract
EXEC
Section 3.This resolution shall become effective immediately upon adoption.
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 159 of 486 Section 4.The City Clerk shall certify to the adoption of this resolution.
PASSED, APPROVED, and ADOPTED on this 7th day of June 2023.
CITY OF INDIO
____________________________
OSCAR ORTIZ, MAYOR
ATTEST:
_______________________________
SABDI SANCHEZ, CMC
CITY CLERK ADMINISTRATOR
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 160 of 486
SECOND AMENDMENT TO
CITY MANAGER EMPLOYMENT AGREEMENT
BY AND BETWEEN
THE CITY OF INDIO
AND
BRYAN MONTGOMERY
DATED: JUNE 7, 2023
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 161 of 486 Page | 1
SECOND AMENDMENT TO CITY MANAGER EMPLOYMENT AGREEMENT
This Second Amendment to the City Manager Employment Agreement is made and entered into as of this 7th day of June, 2023, by and between the City of Indio (“City”), a California municipal corporation and Bryan Montgomery (“City Manager”). City and City Manager are sometimes hereinafter referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City and City Manager entered into a City Manager Employment Agreement dated May 13, 2021 (“Agreement”) for the purpose of the City employing City Manager B. Consistent with Section 8 of the Agreement the City Council has evaluated the performance of the City Manager and, following the successful evaluation, the Parties desire to amend the Agreement as set forth in this Second Amendment.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the Parties do hereby enter into this Second Amendment which modifies and amends the Agreement as follows:
1.AMENDMENT. Section 6(A) of the Agreement is hereby modified and amended to increase the annual salary to $305,000.
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 162 of 486 Page | 2
2.REMAINDER UNCHANGED. Except as specifically modified and amended in this Second Amendment, the Agreement remains in full force and effect and binding upon the Parties.
3.INTEGRATION. This Second Amendment consists of pages 1 through 2, inclusive, as well as the title page, which constitute the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements, including written or verbal communications between the Parties with respect to all or any part of the transaction discussed in this Second Amendment.
4.SEVERABILITY. If any portion of this Second Amendment is declared invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
5.EFFECTIVE DATE. This Second Amendment shall become effective on the first day of the next pay period following execution.
6.APPLICABLE LAW. The laws of the State of California shall govern the interpretation and enforcement of this Second Amendment.
7.REFERENCES. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this Second Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this Second Amendment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties hereto have executed this Second Amendment to the Agreement on the date and year first written above.
CITY OF INDIO
___________________________
Oscar Ortiz, Mayor
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 163 of 486 Page | 3
ATTEST:
CITY CLERK
By: ___________________________
APPROVED AS TO FORM:
CITY ATTORNEY
By: ____________________________
CITY MANAGER
___________________________
Bryan Montgomery
AGENDA ITEM #9.10
Resolution No. 10361 , Authorizing the Mayor to Execute the Second Amend... Page 164 of 486 City of Indio
City Council
June 7, 2023
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Steven Graham, City Attorney
Subject: Resolution No. 10362, Disclaiming All Interest in the Dillon Road Bridge in Favor of Twenty-Nine Palms Band of Mission Indians
RECOMMENDATION:
That the City Council adopt the Resolution No. 10362, Disclaiming All Interest in the Dillon Road Bridge in Favor of Twenty-Nine Palms Band of Mission Indians
SUMMARY:
The Twenty-Nine Palms Band of Mission Indians (the "Tribe") contacted the City of Indio (the "City") requesting the City's assistance in clearing up an ambiguity relating to the ownership of the physical structure of the Dillon Road Bridge (the "Bridge"). The Bridge is located between the eastern end of Avenue 48 and Interstate 10 within the Tribe's reservation in an area that the City used to claim as within the City limits. The ambiguity arose from action by Caltrans and the City in the early 1980s. In 1980, the City Council, by Minute Order No. 80 -300, agreed to accept title to Dillon Road and all collateral facilities such as the Bridge. In 1983, Caltrans adopted Resolution No. R2785, purporting to relinquish Dillon Road and the collateral facilities, including the Bridge to the City. Although uncertainty exists, this ambiguity was likely the result of confusion resulting from the City's attempts to annex reservation land. In the early 1980s, the City claimed city limits that extended further east than th e current boundaries, which can be seen on the attachment to the Caltrans Resolution No. R2785. The annexation issue that was resolved in December 1982, when the Ninth Circuit held, in the case Cabazon Band of Mission Indians v. City of Indio, 694 F.2d 634 (9th Cir. 1982), that the City's attempted annexation of reservation land was void. To resolve the ambiguity and ensure the Tribe has access to funding necessary to make improvements to Dillon Road and the Bridge, the Tribe has requested that the City Council adopt a resolution disclaiming any interest in the Bridge. Based on the complicated history briefly outlined above, the Tribe's history of ensuring public access to this crucial transportation corridor, and the need for critical improvements to the Br idge, staff recommends the City Council adopt the resolution.
ATTACHMENTS:
Attachment 1 - Reso 10362 Dillon Road Bridge Resolution Attachment 2 - 29 Palms BOMI-Rel 24313 All Indio_4-4-1983
APPROVAL(S):
AGENDA ITEM #9.11
Resolution No. 10362 , Disclaiming All Interest in the Dillon Road Bridg... Page 165 of 486 Timothy Wassil, Public Works Director Approved - 31 May 2023 Steven Graham, City Attorney Approved - 31 May 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 31 May 2023 Bryan H. Montgomery, City Manager Approved - 31 May 2023
AGENDA ITEM #9.11
Resolution No. 10362 , Disclaiming All Interest in the Dillon Road Bridg... Page 166 of 486 RESOLUTION NO. 10362
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO,
CALIFORNIA DISCLAIMING ALL INTEREST IN THE DILLON ROAD
BRIDGE IN FAVOR OF TWENTY-NINE PALMS BAND OF MISSION
INDIANS
WHEREAS, the City of Indio (“City”) wishes to voluntarily release and disclaim any interest, right or ownership in the structure known as the Dillon Road Bridge (“Dillon Road Bridge”) in favor of the Twenty-Nine Palms Band of Mission Indians (“Tribe”); and WHEREAS, the City has a copy of a relinquishment document dated March 25, 1983 recorded by the California Department of Transportation purporting to relinquish the State of California’s interest to the City for the Right of Way for Road 11-RIV- 111(TEMP) – 28.5/29.2 for use as a city street; and
WHEREAS, the relinquishment document does not address the City’s interest in the Dillon Road Bridge structure, including any ownership, maintenance and management interest or responsibility; and
WHEREAS, the United States owns the real property beneath the Dillon Road Bridge structure in trust for the Tribe and the Dillon Road Bridge is within the jurisdiction of the Tribe; and
WHEREAS, by letter dated May 4, 2023, the Tribe has requested that the City disclaim all interest in the Dillon Road Bridge, including any purported interest conveyed by the above referenced relinquishment document, so that it can make certain improvements to the Dillon Road Bridge; and
WHEREAS, the uncertainty resulting from the 1983 Caltrans relinquishment document has complicated the Tribe’s efforts to secure funding for the repairs, maintenance, and upgrades necessary for the Bridge; and WHEREAS, the Tribe acknowledges in its May 4, 2023 letter the Dillon Road Bridge serves as a crucial transportation corridor for the Tribe, the City of Indio, and surrounding communities, as it serves as a vital link between Avenue 48 in the City with Interstate 10.
///
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AGENDA ITEM #9.11
Resolution No. 10362 , Disclaiming All Interest in the Dillon Road Bridg... Page 167 of 486
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:
Section 1. Release and Disclaimer
The City hereby confirms that it generally releases and disclaims any interest it has to the Dillon Road Bridge in favor of the Tribe.
Section 2. Relinquishment Document
To the extent the City has any rights under the relinquishment document dated March 25, 1983 recorded by the California Department of Transportation purporting to relinquish the State of California’s interest to the City for the Right of Way for Road 11- RIV-111(TEMP) – 28.5/29.2 or any question of the City’s rights is raised by this relinquishment document or any other document, the City hereby releases and disclaims any interest, right or ownership in the Dillon Road Bridge structure in favor of the Tribe.
PASSED, APPROVED, and ADOPTED on this 7th day of June 2023. ____________________________
OSCAR ORTIZ, MAYOR
ATTEST:
_______________________________
SABDI SANCHEZ, CMC
CITY CLERK ADMINISTRATOR
AGENDA ITEM #9.11
Resolution No. 10362 , Disclaiming All Interest in the Dillon Road Bridg... Page 168 of 486 RECORDING.’1CGU.’-1(‘V’)[WSY ATEOFC»\!!I()P..I-'-.DopanmenloiTmnspmlnliclnDiilriclIIWhenrecorded.mailtoP.O.Box85406SanDiego.CA92338 V:-39*At??w?dW A}:orCALIFORNIA62636
ATTN=-S1<'o°.'.9Z—’/A¢.,,..<
am*l?BJ$
RELINQUISHMENTOE‘HIGHW AYRIGHTOFW AYINTHECITYOFINDIO,ROAD1l—RIV—1ll(TEMP)—28.5/29.2REQUESTNO.24313 ’
WHEREAS,byCityCouncilMinuteOrderNo.80-300,datedMarch5,1980,theCityofIndioagreedtoaccepttitletoarecon-structedcitystreet(atemporaryStatehighway),uponrelinquishmentthereoftosaidCitybytheStateofCalifornia;andWHEREAS,theStateofCaliforniahasacquiredrightofwayforandhasreconstructedacitystreet(atemporaryStatehighway)intheCityofIndio,alongDillonRoad,between48thAvenueandneartheeastcitylimit,roadll-Riv—1ll—Temp;andWHEREAS,thisCommissionhasfoundanddetermined,anddoesherebyfindanddetermine,thatitisdesirableandinthepublicinterestthatsaidcollateralfacilitiesberelinquishedtotheCityofIndioforuseasacitystreet;NOW,THEREFORE,IfISVOTEDbytheCaliforniaTransportationCommissionthatitrelinquish,anditdoesherebyrelinquish,totheCityofIndio,effectiveupontherecordationofacertifiedcopyhereofwiththeRecorderofRiversideCounty,alloftheStateofCalifornia'sright,titleandinterestinandtosaidcollateralfacilitiesinsaidCity,togetherwiththerightofwayandappurtenancesthereof,describedasfollows:
TRANSPORTATIONCOMMISSIONRESOLUTIONNO.R2785 PassedbyCTC9:?-\.P.241983
AGENDA ITEM #9.11
Resolution No. 10362 , Disclaiming All Interest in the Dillon Road Bridg... Page 169 of 486 Allthatportionoftemporarystatehighway,recon-structedcitystreet, February28,1983,inBook9,Pages18to20,inclusive,Document
exceptatsuchpointsasnowareormaybeestablishedbyresolutionofthisCommission.
THISISTOCERTIFYThattheforegoingisafullandcorrectcopyoftheoriginalresolutiondulypassedbytheCaliforniaTransportationCommissionatitsmeetingregularlycalledandheldontheZhthdayofMarch,l983,inthecityofSacramento.Datedthisthe25thdayofMarch,I983.
Q.kICHARDA.DONALDSONClerkCALIFORNIATRANSPORTATIONCOMMISSION
AGENDA ITEM #9.11
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Resolution No. 10362 , Disclaiming All Interest in the Dillon Road Bridg...Page 173 of 486 City of Indio
City Council
June 7, 2023
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Kevin H. Snyder, Dir. Of Community Development Subject: Resolution No. 10360 conditionally approving the Wendy's Drive -Through Restaurant Project on Assessor's Parcel Number 616 -101-003 further identified as 81703 Highway 111, Indio, CA 92201 pursuant to the Highway 111 Corridor Specific Plan
RECOMMENDATION:
Approve Resolution No. 10360 granting conditional approval of a Conditional Use Permit and Planning Review Permit pursuant to the provisions of the Highway 111 Corridor Specific Plan and finding the project exempt from further environmental review pursua nt to the provisions of Section 15332/Class 32 "Infill" of the California Environmental Quality Act and finding the project consistent with the Program Environmental Impact Report for the General Plan 2040 certified by the City Council on September 18, 2019
SUMMARY:
Request by Sage Investco, Newport Beach, CA, for Conditional Use Permit and Planning Review Permit entitlement approvals under the provisions of the adopted Highway 111 Corridor Specific Plan for the development of a new Wendy's Drive -Through Restaurant on Highway 111 east of the intersection of Dr. Carreon Boulevard and Highway 111.
BACKGROUND INFORMATION:
Project Summary:
Sage Investco, 4350 Von Karman Avenue, Suite 200, Newport Beach, CA 92260, submitted a land use entitlement application on Novemb er 29, 2022 for the development of a new Wendy’s Drive - Through Restaurant on Assessor’s Parcel Number (APN) 616 -101-003 further identified as 81703 Highway 111, Indio, CA 92201 located east of the intersection of Dr. Carreon Boulevard and Highway 111 within the municipal limits of the City of Indio. Sage Investco is requesting Conditional Use Permit and Planning Review Permit approvals pursuant to the provisions of the Highway 111 Corridor Specific Plan for a 3,068 square foot Wendy’s drive-through restaurant with 33 on-site surface parking spaces, associated on -site landscaping and business signage and vehicular access onto and from Highway 111.
Public Notice Compliance:
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 174 of 486 On May 24, 2023, the Community Development Department mailed written notices of the public hearing for the June 7, 2023 City Council public hearing for the Wendy’s Drive -Through Restaurant Project to all property owners within 500 feet of the perimeter of the subject property and published a legal notice of public hearing in the Desert Sun, the newspaper of record, on May 24, 2023.
Findings for Compliance to the California Environmental Quality Act (CEQA):
The Wendy’s Drive-Through Restaurant Project qualifies for a Class 32 “Infill” Categorical Exemption pursuant to Section 15332 of the California Environmental Quality Act (CEQA) because: a) the project has been determined to be consistent or can be made consistent with the application of conditions of approval with the City of Indio General Plan 2040 (adopted September 18, 2019) and the City of Indio Highway 111 Corridor Specific Plan (adopted September 21, 2022); b) the project is to be situated on an existing parcel of land located within the city limits of the City of Indio in an existing urbanized area that is 41,818 square feet or 0.96 of an acre in size that is below the statutorily specified requirement of no more than five (5) acres; c) the submitted documented prepared by a qualified professional for the requested Class 32 “Infill” Categorical Exemption demonstrates that the project site has no value as habitat for endangered, rare or threatened species; d) the project is consistent or can be made consistent with the application of conditions of approval with the City of Indio General Plan 2040 (adopted September 18, 2019) and the City of Indio Highway 111 Corridor Specific Plan (adopted September 21, 2022) and approval of the project would not result in any significant effects related to traffic noise, air quality or water quality that have not already been previously analyzed and/or that cannot be mitigated with the application of relevant conditions of approval; and e) agencies providing public or private utilities and/or public services have determined that the project can be adequately served based on existing service featur es or the application of conditions of approval to enhance or expand service features. The Wendy’s Drive -Through Restaurant Project is also within the scope of the certified Program Environmental Impact Report (PFEIR) for the General Plan 2040 as the Project will substantively implement the General Plan 2040’s vision, intent, policies and goals.
Findings for Compliance to the General Plan 2040 and the Highway 111 Corridor Specific Plan:
1. The General Plan 2040 specifies a Mixed Use Neighborhood (MUN) land use designation for the project site. The MUN land use designation is intended to provide moderate - to higher-intensity neighborhood development that features a variety of multifamily hous ing choices and limited neighborhood-serving commercial uses in a walkable environment and allows commercial development along major streets and adjacent to a neighborhood center. Primary land uses for this designation include a range of single -family and multi-family residential uses, parks and recreation, mixed use (retail/office, retail/residential, office/residential, and neighborhood -serving retail, general commercial, services, entertainment, live/work, and office. Secondary land uses include public facilities, guest houses, places of worship, schools, family day care homes, public facilities, and others which are determined to be compatible with and oriented toward serving the needs of neighborhoods may also be allowed. Secondary uses should be focuse d along mixed- use corridors or at the edges of centers.
2. Policy LU-1.1 (Overall City Structure) of the General Plan 2040 specifies that a clearly defined City structure will be partially established by creating mixed -use corridors along Highway 111, Monroe Street, Avenue 42, and Avenue 44 that contain a mix of retail, service, office, and residential uses. Corridors should have defined nodes that provide a mix of local - and regional- serving uses. The project is proposing a one-story quick-service restaurant with drive-through and associated supportive land uses including surface parking, on -site landscaping, on -site lighting and on-site signage.
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 175 of 486
3. The City of Indio City Council adopted the Highway 111 Corridor Specific Plan on September 21, 2022. The stated goal of this Specific Plan is: “The City will utilize this Specific Plan as strategic action plan to attract, enable and guide market based econ omic development to deliver new housing, employment, and public improvements along this important city center corridor, in patterns and forms that systematically realize the long -term vision for central Indio, one project and one improvement at a time.” Th e subject property proposed for the Wendy’s Drive -Through Restaurant Project is currently occupied by two (2) vacant structures comprised of a one (1) story building and a two (2) story building. These structures were previously utilized for office and service related land uses, but have been vacant and underutilized for the last several years. The Applicant is proposing to demolish these two structures and develop the aforementioned fast -food or quick service restaurant.
4. The Vision Statement for t he Highway 111 Corridor Specific Plan is ”The Highway 111 Corridor will be transformed from a suburban highway commercial strip, into a lively, dynamic center of social, cultural and economic activity for the city of Indio - respecting the Corridor’s histo ry and context, building on its existing amenities, reflecting community desires, and leveraging evolving economic opportunities for the benefit of the entire community.” The proposed Wendy’s Drive - Through Restaurant Project is an auto-oriented fast food or quick service restaurant land use. As a stand-alone auto oriented land use, it does not by itself contribute to a lively dynamic center of social, cultural and economic activity for the City of Indio. However, the Specific Plan has identified certain limited land uses that are conditionally allowed in recognition that the transformation of the Corridor will likely take significant time and to balance the Corridor’s transformation with the economic development needs and interests of the City and private property rights.
5. The proposed project is being evaluated for consistency with applicable provisions of the Highway 111 Corridor Specific Plan and is being processed as a Planning Review Permit land use entitlement application. Pursuant to Table 3.4. 2 of the Specific Plan, the subject site is located within Subarea 14 that is in turn has been an assigned regulatory designations consisting of Mixed- Use Corridor Zone.
6. Pursuant to Section 3.4.C.2 of the Specific Plan, the Mixed Use Corridor Zone is intended to implement the vision for Highway 111 to evolve into a mixed-use central boulevard - characterized by strong urban buildings with active ground -floor uses and frontages that provide services and amenities to the adjacent neighborhoods, inject the corridor with daily human activity, and establish a clear and attractive identity for the corridor that is unique to the City of Indio.
7. Section 3.5 (Allowed Uses) of the Specific Plan addresses allowed land uses within the boundaries of the Sp ecific Plan and corresponding permit requirements for each regulatory zone, as applicable. Table 3.5 -1 (Allowed Uses) specifies that all drive -through restaurant land uses are subject to the issuance of a conditional use permit approval and that the issuance of this approval shall ultimately be by the City Council following review and issuance of a recommendation by the Planning Commission.
8. Section 3.1.C.3 (Relationship to Indio Municipal Code and Unified Development Code) specifies that thisChapter relies on several existing procedural requirements of the Indio Municipal Code (IMC) and/or Unified Development Code (UDC), where noted. In cases where this Chapter is silent, the requirements of the IMC or UDC shall apply (as prescribed in those documen ts). In cases where there is conflict between the requirements of this Chapter and those of the IMC or UDC, the requirements of this Chapter shall supersede.
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9. Section 3.2.G.3.A (Council Approval Required) of the Specific Plan specifies that the fol lowing Limited Uses shall require City Council approval inclusive of fueling stations, car washes and any use including a vehicular drive-through.
10.The adopted Specific Plan does not specifically list the require findings for the consideration of the issuance of a conditional use permit approval, therefore, pursuant to
11.Section 3.1.C.3 (Relationship to Indio Municipal Code and Unified Development Code), applicable provisions of the City’s Unified Development Code for consideration of conditional use permits shall apply.
12.Section 6.04.04.F.1-6 of the City of Indio Unified Development Code comprise the required findings for a conditional use permit land use:
1. The proposed use is allowed within the applicable zone and complies with all other applicable provisions of this Code and all other titles of the Municipal Code;
2. The proposed use is consistent with the General Plan and any applicable Specific Plan;
3. The proposed use will not be adverse to the public health, safety, or general wel fare of the community, nor detrimental to surrounding properties or improvements;
4. The proposed use complies with any design or development standards applicable to the zoning district or the use in question unless waived or modified pursuant to the provisions of this Code;
5. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and
6. The site is physically suitable for the type, density, and intensity of use being proposed, including access, utilities, and the absence of physical constraints.
13.Regarding Section 6.04.04.F.1, Section 3.5 (Allowed Uses) of the Specific Plan addresses allowed land uses within the boundaries of the Specific Plan and corresponding permit requirements for each regulatory zone, as applicable. Table 3.5 -1 (Allowed Uses) specifies that all drive -through restaurant land uses are subject to the issuance of a conditional use permit approval and that the issuance of this approval shall ultimately be by the City Council following review and issuance of a recommendation by the Planning Commission. Section 3.3 (Glossary) of the Specific Plan defines a limited use as a development that provides neighborhood serving amenities (including job-creation) along the corridor, but that does not meet all of the form-based standards of the MU- C Zone and may be considered a impermanent use of the land until it is redeveloped to its highest allowed density. Section 3.14.1 (Limited Uses in the MU -C Zone – Intent) of the Specific Plan states that in order to enable market forces to attract near -term reinvestment to the Mixed -Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and processes whereby limited quantities of lower intensity, more automobile- oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed -Use Corridor Zone through the Administrative Use Permit (AUP) or Conditional Use Permit (CUP) process. This Section further states that accordingly, four specific categories of Limited Uses are defined in this Section, including adaptive reuse of existing 1 and 2 -story commercial and office buildings ,development of limited quantities of new buildings of those types, and development of blocks with lower Frontage Buildout percentages and larger quantities of street -adjacent surface parking that otherwise allowed. The Wendy’s drive -through restaurant is a limited land use within the Mixed Use Corridor (MU -C) designation of the Specific Plan and is subject to City Council review and approval as a conditional land use and is further subject to applicable design and development standards and regulations of Section 3.14 (Li mited Uses in the MU-C Zone). The Wendy’s drive- through restaurant is a quick service restaurant development that provides neighborhood serving amenities for individuals interested in the products being offered and that will also contribute to job creation in the corridor. As noted in other areas of these findings, the Wendy’s drive -through
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 177 of 486 restaurant does not meet all of the form based standards of the MU -C zone. In some instances, this lack of compliance is due to the irregular shape of the parcel and the cross-circulation drive aisle along the site’s property frontage connecting to the parcels on either side of the site. In other instances, this lack of compliance is due to the quick -service nature of the restaurant use.
However, the Wendy’s drive-through restaurant does comply or can be made to comply with the application of conditions of approval with a significant number of the MU -C zone standards as noted in the findings herein. Therefore, as a Limited Land Use, the project does not meet all of the form-based standards of the MU-C Zone and may be considered a impermanent use of the land until it is redeveloped to its highest allowed density.
14.Regarding Section 6.04.04.F.2, the City of Indio City Council adopted the Indio General Plan 2040 on September 18, 2019. The City of Indio City Council subsequently adopted the Highway 111 Corridor Specific Plan on September 21, 2022. The stated goal of this Specific Plan is: “The City will utilize this Specific Plan as strategic action plan to attract, enable a nd guide market based economic development to deliver new housing, employment, and public improvements along this important city center corridor, in patterns and forms that systematically realize the long-term vision for central Indio, one project and one improvement at a time.” The subject property proposed for the Wendy’s Drive-Through Restaurant Project is currently occupied by two (2) vacant structures comprised of a one (1) story building and a two (2) story building. These structures were previously utilized for office and service related land uses, but have been vacant and underutilized for the last several years. The Applicant is proposing to demolish these two structures and develop the aforementioned fast-food or quicks service restaurant. Table 3. 5-1 (Allowed Uses) specifies that all drive -through restaurant land uses are subject to the issuance of a conditional use permit approval and that the issuance of this approval shall ultimately be by the City Council following review and issuance of a recommendation by the Planning Commission. Section 3.3 (Glossary) of the Specific Plan defines a limited use as a development that provides neighborhood serving amenities (including job-creation) along the corridor, but that does not meet all of the form -based standards of the MU -C Zone and may be considered a impermanent use of the land until it is redeveloped to its highest allowed density. Section 3.14.1 (Limited Uses in the MU -C Zone – Intent) of the Specific Plan states that in n order to enable market for ces to attract near -term reinvestment to the Mixed -Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and processes whereby limited quantities of lower intensity, more automobile -oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed -Use Corridor Zone through the Administrative Use Permit (AUP) or Conditional Use P ermit (CUP) process. Therefore, the conditional use consideration of the Wendy’s drive -through restaurant is consistent with the General Plan because it is a general commercial land use as specified in the General Plan. It is further consistent with applic able provisions of the Specific Plan because it is considered a limited land use and is being considered as a conditional land use pursuant to applicable provisions of the Specific Plan.
15.Regarding Section 6.04.04.F.3, the project is a quick service o r fast food restaurant with drive - through. The project is an auto -oriented land use whose overall land use intent is to provide convenient and auto oriented food service to patrons. The project has been designed to have an interior dining area. Further, the project will have a purposely designed pedestrian connecting from the main building entrance to Highway 111 that is intended to provide a non -vehicular access opportunity into and out of the project site. The Vision Statement for the Highway 111 Corridor Specific Plan is ”The Highway 111 Corridor will be transformed from a suburban highway commercial strip, into a lively, dynamic center of social, cultural and economic activity for the city of Indio - respecting the Corridor’s history and context, building on its existing amenities, reflecting community desires, and leveraging evolving economic opportunities for the benefit of the entire
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 178 of 486 community.” The Wendy’s Drive-Through Restaurant Project as a stand-alone auto oriented land use, it does not by itself directly contribute to a lively dynamic center of social, cultural and economic activity for the City of Indio. However, the Specific Plan has identified certain limited land uses that are conditionally allowed in recognition that the transformation of the Corridor will likely take significant time and to balance the Corridor’s transformation with the economic development needs and interests of the City and private property rights. In addition, the subject property proposed for the Wendy’s Drive -Through Res taurant Project is currently occupied by two (2) vacant structures comprised of a one (1) story building and a two (2) story building. These structures were previously utilized for office and service related land uses, but have been vacant and underutilize d for the last several years. The Applicant is proposing to demolish these two structures and develop the aforementioned fast -food or quicks service restaurant that will re - introduce land use activity to the subject and will create employment and property tax revenue that is not currently present or less than could be realized because of the aged nature of the existing structures and their lack of reinvestment and use.
16.Regarding Section 6.04.04.F.4, the Wendy’s drive-through restaurant complies or can be made to comply with a substantial majority of the applicable design and development standards specified in the Specific Plan. There are instances where the project cannot comply with a specified design or development standard because of the irregular s hape of the parcel or the existing cross - circulation drive aisle easement along the frontage of the parcel that is required to remain in place to support the cross -circulation needs of the land uses on the adjoining parcels to the east and west or because of the limited land use nature of the project. Regarding the latter, Section 3.3 (Glossary) of the Specific Plan defines a limited use as a development that provides neighborhood serving amenities (including job-creation) along the corridor, but that does not meet all of the form- based standards of the MU-C Zone and may be considered a impermanent use of the land until it is redeveloped to its highest allowed density. Section 3.14.1 (Limited Uses in the MU -C Zone – Intent) of the Specific Plan states that i n order to enable market forces to attract near -term reinvestment to the Mixed -Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and processes whereby limited quantities of lower i ntensity, more automobile -oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed -Use Corridor Zone through the Administrative Use Permi t (AUP) or Conditional Use Permit (CUP) process. This Section further states that accordingly, four specific categories of Limited Uses are defined in this Section, including adaptive reuse of existing 1 and 2-story commercial and office buildings ,development of limited quantities of new buildings of those types, and development of blocks with lower Frontage Buildout percentages and larger quantities of street -adjacent surface parking that otherwise allowed. Therefore, the project is generally compliant or will be compliant with the application of conditions of approval and in those instances where the project is not compliant, there is a reasonable basis for the City Council to make a finding that this lack of compliance does not result in the project not being approvable.
17.Regarding Section 6.04.04.F.5, the Wendy’s drive -through restaurant is compatible with the design, location, size and operating characteristics of existing and reasonably foreseeable future land uses in the vicinity. The project sit e is located in a largely built out area of the Highway 111 Corridor that is currently dominated by auto -oriented land uses including but not limited to stand - alone and multi-tenant building retail oriented businesses, office land uses and personal service land uses. These land uses are primarily located in an established buildings and sites that are not currently planned for significant revitalization or redevelopment. The Wendy’s drive -through restaurant is consistent with the existing surrounding land us es and will not cause significant impacts to the operations of these land uses that would be considered excessive in nature.
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18.Regarding Section 6.04.04.F.6, the project site for the Wendy’s drive -through restaurant is an irregularly shaped parcel of land. Further, it has an existing cross-circulation drive aisle easement connecting to the adjacent parcels on the east and west that are physical constraints, but do not substantively inhibit the overall developability of the project site. The project has appropriate and compliant access from Highway 111, is served or can be served by public and private utilities and would not create excessive land use intensity that would be out of character with the existing surrounding commercial oriented land uses.
19.Pursuant to Section 3.6 of the Specific Plan, the standards of this this section shall apply to any parcel within the Master Planned Design Overlay in Figure 3.4-1, or for any proposed development greater than 4 acres in size. No new subdivision, buildin g, street or other improvement shall be approved on such a parcel without a Planning Review (PR) Permit and an approved Master Planned Development (MPD) Permit, based on a determination of consistency with these standards. The project site is 0.96 of an ac re in size and therefore, this Section is not applicable to the proposed project.
20.Pursuant to Section 3.6.A.2.a, all new development must complete and/or support—and in no way impede—the required connections and intersections which appear in their sub area. The project site is located in Subarea 14. Figure 3.6 -1 does not identify required and/or recommended connections through the project site. Pursuant to Section 3.6.B.1.b, required connections form links through and between subareas and are required t o be multi -modal streets with vehicular access and shall be further be designed as Avenues (per Section 3.7.B.4.a) or Neighborhood Streets (per Section 3.7.B.4.c). Pursuant to Section 3.6.B.1.d, recommended connections are included as suggested ways to meet the Block Standards of Section 3.6.C, but their quantity and placement is flexible. Recommendations for how some of these connections can be implemented are included in Table 3.6 -2. However, because the Specific Plan does not specify required or recommended connections through any portion of the project site, this Section is not applicable to the proposed project.
21.Pursuant to Section 3.6.C.1/Table 3.6.3 (Maximum Block Size), the maximum block perimeter for the Mixed Use Corridor zone is 1,600 feet. Pursuant to Section 3.6.C.2.a, per Table 3.6 -1, all blocks shall be defined —or in other words: bound at their perimeter —by one or more of the following types of public connections or open spaces: Street, Carless Street, Plaza/Green, Neighborhood Park, or M ini Park. Pursuant to Section 3.6.C.2.a.i, a block may be bound on no more than one (1) side by a Carless Street, Plaza/Green, Neighborhood Park, or Mini Park.
Pursuant to Section 3.6.C.2.b, types which define a block shall be public and shall not be priva te or semi -public. Pursuant to Section 3.6.C.2.b.i, “Public” means those spaces and connections which are publicly accessible—providing public right-of-way—regardless of ownership. The project site is located on an existing parcel of land that measures app roximately 182.09 lineal feet wide along the site’s northern (Highway 111) perimeter, 355.08 lineal feet long along the site’s western perimeter, 244.65 lineal feet along the site’s eastern perimeter and 144.28 lineal feet along the site’s southern perimeter. As a result of the project site’s limited size and associated dimensions, it complies with this Section.
22.Section 3.7 (Public Realm Standards) specifies standards for the public realm areas of the Highway 111 Corridor. The project site is comprised of private property that is located along an existing built portion of Highway 111. The applicant is not proposing nor is being required to make any substantive public realm improvements that would create a legal nexus for compliance to one or more standards in this Section. Therefore, this Section is not applicable to the proposed project.
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23.Section 3.8 (Building Placement and Access) and more specifically Section 3.8.B.1 specifies standards to ensure that proposed development within the Specific Plan area promotes a pedestrian-friendly environment along the street by placing buildings at the front of the site and locating parking at the center or the back of the site. Table 3.8 -1 (Building Placement) specifies building placement standards that are applicable to properties that are located within the Mixed - Use Corridor regulatory zone. This Table specifies that the Highway 111 build to range should be 0 feet to 15 feet, that the front street build out should be 100 percent, that there is no side street build to range, that the side street build out should be 80 percent for the first 40 feet with no buildout requirement after 40 feet, that the building length should be a maximum of 300 feet, and that there are no building setback requirements except for a 10 -foot separation between multiple buildings on a single lot. Section 3.14 (Limited Land Uses in the MU-C Zone) and more specifically Section
3.14.A.3.1.c.iv specifies that the Frontage Buildout requirements listed in Table 3.8 -1 may be waived for provided buildings are in conformance with the requirements of the rest of this Section.
The proposed building portion of the Wendy’s Drive-Through Restaurant does not comply with the specified 15-foot build to range that is the area within which the building should be constructed and is proposed to be setback approximately 52 feet. The project site is e ncumbered by existing cross circulation easements and driveways with the adjacent properties to the east and west that limit the ability to place a building within the specified build to range without significant disruption to existing cross-circulation patterns. Further, the irregularly shaped nature of the property limited the applicant’s ability to orient the building in an east to west orientation and place the building at or near the northern property line and still maintain the required cross-circulation patterns with the existing properties to the east and west. Therefore, there is a reasonable legal basis for excluding the building placement from the specified requirement. As a result of the foregoing constraints on building placement, the proposed on-site building does not comply with the 100 percent front street build-out, however, as previously noted the requirement for maintenance of existing cross - circulation patterns do not allow for compliance to this standard and a legal exclusion from this standard is reasonable. There are no side streets adjacent to the project site so these specified standards are not applicable. The proposed building length is approximately 40 feet thereby complying with the maximum building length standard. There are no o ther on-site buildings and therefore, the project site complies with the specified building setback requirements.
24.Section 3.8.B.2 specifies standards for Public Realm Extensions into project sites. The submitted site plan specifies a semi -diagonal pedestrian connection from Highway 111 into the site connecting to the building adjacent sidewalk sections and intersects the east -west cross - circulation drive aisle through the property and the drive-through aisle. Section 3.8.B.2.f specifies the following standards applicable to this connection:
i. Public Realm Extensions shall connect directly to the public sidewalk. An y necessary steps, ramps, and/or elevators to connect them shall be easy to locate and comfortable to use. Apart from steps and ramps, surfaces used by pedestrians shall be flat. ii. Decorative and/or permeable pavement is encouraged. iii. Landscaping, pedestrian-scale lighting, and seating areas are encouraged. iv. Public Realm Extensions may be enclosed from the public realm with landscaping, low walls, and/or fences, provided that entrances are provided.
v. On-site driving and parking areas shall e ither be designed as shared, multi-use spaces or be kept separate with strategic siting of buildings and/or landscaping.
25.The submitted site plan does not specify the design characteristics of the proposed pedestrian connection. However, Section 3.14.C .3.b.iii specifies that a clearly marked pedestrian walkway shall be provided and shall be designed as a crosswalk including signage and cues such as striping or material changes. The originally submitted plans were unclear as to whether decorative and/or permeable pavement for this pedestrian connected will be installed. Following the conclusion of
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 181 of 486 the Planning Commission’s review of the project, the applicant submitted an updated site plan a raised pedestrian crossing comprised of stamped concrete measuring six (6) feet wide and ½ foot high. The applicant shall be required via a condition of approval to construct the raised pedestrian crossing in conformance with the approved site plan comprised of stamped concrete measuring six (6) feet wide and one half of a foot high prior to the issuance of a certificate of occupancy.
26.The project is a limited land use drive-through restaurant that has not been designed to incorporate enclosed public realm extensions that due to the irregular nature of the parcel, c ross-circulation constraints and the auto -oriented nature of the development would be infeasible. The on -site driving and parking areas have been designed to separate on -site parking from drive -through functional areas within the site constraints imposed b y the irregular nature of the parcel and the need to maintain cross-circulation between and with adjacent properties.
27.Section 3.9 (Building Height) of the Specific Plan specifies standards for building height and vertical proportions that apply to all new buildings within the boundaries of the Specific Plan. For properties zoned Mixed Use Corridor, Table 3.9-1 specifies that the minimum building height is 3 stories. The submitted elevation drawings for the proposed on -site building specify that the pr imary building elevation will be 21.5 feet in height that is 8.5 feet less than the specified 3 stories standard and as such, does not comply with the specified minimum building height standard. Section 3.14 (Limited Land Uses) and more specifically Section 3.14.1 specifies that “In order to enable market forces to attract near-term reinvestment to the Mixed-Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and processes whereby lim ited quantities of lower intensity, more automobile -oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed-Use Corridor Zone through the Administrative Use Permit (AUP) or Conditional Use Permit (CUP) process. Accordingly, four specific categories of Limited Uses are defined in this Section, including adaptive reuse of existing 1 and 2 -story commercial and office buildings, development of limited quantities of new buildings of those types, and development of blocks with lower Frontage Buildout percentages and larger quantities of street-adjacent surface parking that otherwise allowed.” The proposed Wendy’s Drive -Through Restaurant project is categorized as a limited land use and more specifically under the category of “development of limited quantities of new buildings of those types”. Therefore, because of its limited land use status, the approximately 2 stories height of the proposed building is acceptable.
28.Section 3.10 (Facades and Frontages) of the Specific Plan specifies standards to ensure that large- scale (“block -form”) buildings, are modulated into smaller “human-scale” increments and composition to generate more dynamic and i nteresting streetscapes and result in more resilient buildings that are adaptable over time to meet the varied needs of different tenants and uses.
Section 3.10.A specifies building massing standards for buildings that are longer than 100 feet in length in the Mixed-Use Corridor. The proposed on-site building measures approximately 40-feet in length and therefore Section 3.10.A is not applicable to the proposed building.
29.Section 3.10.B (Façade Design) is intended to generate active, attractive and hum an-scaled façade compositions based on timeless building. The submitted building elevations propose a combination of horizontal and vertical elements, all of which comply with the façade composition standards specified in Section 3.10.B.2 for a single-use structure.
30.Section 3.10.B.3 specify façade fenestration standards that are applicable to the proposed project.
Section 3.10.B.3.a.i specifies that facades shall be designed to incorporate fenestration (windows and doors) per the amounts specified in Table 3.10 -2 that for properties with the Mixed Use Corridor designation requires 70 percent to 95 façade fenestration. The proposed northern
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 182 of 486 southern, western and eastern building elevation facades do not appear to meet the façade fenestration requirement. The proposed west building elevation has an overall length of 88’-6” with 27’-6” of fenestrations with clear glass that is 31.25% of the length of the façade. The fenestration on this elevation is limited to the dining room area at the front of the build ing while restrooms, dry storage, scullery, and walk in cooler and freezers are located at the rear portion of the building and would not typically have fenestrations. The north building elevation or the front elevation is 37’ -0” wide and has 19’ -9” of fen estrations with clear glass that is 53.38% of the façade length. The portion of this elevation that is not glazed is the red blade element that provides a contrast of materials in this façade. The south building elevation, or the rear elevation is 38’ -2” wide, with 1’- 1” of glass or 4.8% of the façade. This elevation is not visible to the street and electrical utilities, grease waste storage, co2, dry storage and walk in cooler and freezer are located adjacent to this elevation. The east elevation has an overall length of 89’-4” with 34’-4” of fenestrations with clear glass that is 38.43% of the length of the façade. The fenestration on this elevation is in the dining room area. In addition, the openings at the two drive thru windows have been expanded to provide additional fenestration with clear glass on this façade. The main cooking line and storage occupy the rest of the façade area. Section 3.14.B.1.f.iii specifies that for limited land use facades over 100 feet in width are subject to the Façade Standar ds in Section 3.10.A.3. The four façade elevations for the Wendy’s drive-through restaurant that is considered a limited land use pursuant to applicable provisions of the Specific Plan are less than 100 feet in width and therefore are not subject to the specified façade fenestration standards.
31.Section 3.10.3.b specifies the following standards:
i. Except for shopfront or bay windows, all glass shall be set back a minimum of four (4) inches back from the façade plane.
ii. Windows shall have an external reflectance of less than 15%, and a transparency higher than 80%. Opaque windows are prohibited.
iii. Non-operable shutters—known as ‘faux shutters’—are prohibited. iv. The horizontal distance between wall openings shall not exceed 15 feet within a façade or massing increment.
32.The project plans specify that glass storefront sections set back four (4) feet from façade elevation walls for compliance to Section 3.10.3.b.i of the Highway 111 Corridor Specific Plan. A condition of approval demonstrating compliance to Section 3.10.3.b.i prior to issuance of a building permit shall be specified to ensure compliance. The applicant has specified that compliance to Section
3.10.3.b.ii will be demonstrated on Elevation Sheets A2.1, A2.2 and A2.3. A condition of approval demonstrating compliance to Section 3.10.3.b.ii prior to issuance of a building permit shall be specified to ensure compliance. The applicant has specified t hat non-operable shutters or faux shutters shall be prohibited for compliance to Section 3.10.3.b.iii . A condition of approval demonstrating compliance to Section 3.10.3.b.iii prior to issuance of a building permit shall be specified to ensure compliance. The applicant has specified that the horizontal distance between wall openings at the storefront at the front of the building is not separated by more than 15 feet for compliance to Section 3.10.b.iv.
33.Section 3.10.4 (Façade Materials) specifies the following standards:
a. Fiberglass or plastic (false) architectural elements or ornamentations are prohibited. b. Materials used on shopfronts shall be smooth and non-abrasive to touch. c. Rough -cast and sand -finishes are prohibited on all building s urfaces that are visible from a street.
d. Where more than one material is used for the façade, the heavier material shall be used below the lighter material (e.g. brick below siding, not vice versa).
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 183 of 486 e. Modulations, color schemes, balconies, and other façade elements shall be consistent within an individual façade or within an individual Building Increment, when required per Section 3.10.A.2.
34.The applicant submitted a digital materials board that does not show fiberglass or plastic architectural elements. The materials board specifies that materials are proposed to be smooth and non -abrasive. The materials board does not indicate rough cast or sand -finishes. The materials board indicates the use of more than one materials and that the heavier mater ials are used below the lighter materials. In order to assure on -going compliance to Section 3.10.4.a-e a general c ondition of approval demonstrating on -going compliance to Section 3.10.4.a-e is warranted.
35.Section 3.10.C (Frontages) address the space between the travel lanes of a street and the building, and including the building’s ground floor façade and is applicable to any new building, façade renovation, or building addition along a street or public open space in the Corridor Specific Plan area with minor exceptions to the standards herein allowed for Limited Uses, as defined in Section
3.14. As previously noted, the proposed fast food or quick service restaurant is considered a limited land use pursuant to Section 3.14 of the Specific Plan. As such,
36.Section 3.10.D.3 specifies that all building entry and projecting architectural elements shall comply with the following requirements:
a. Materials, style, and design shall be consistent with the architecture of the building. b. Deep eaves, balconies, bay windows, and projected rooms of traditionally styled buildings shall have visible supports in the form of projecting beams or braces. Balconies on contemporary styled buildings shall not be required to have beams or braces. c. Landscaping shall be appropriate to the architecture and scale of the building.
37.The submitted plan documents demonstrate compliance to Section 3.10.D.3.a and c as the materials, style and design of the building entry is consistent with the proposed architecture of the building and the proposed landscaping is appropriate to the architecture and scale of the building.
Section 3.10.D.3.b is not applicable to the proposed use and design of the on-site building.
38.Section 3.10.D (Building Entry an d Projecting Architectural Elements) and more specifically Section 3.10.D.2 specifies that new building designs shall include at least one (1) of the Required Building Entry Elements identified in Table 3.10 -6. Section 3.10.D.4 specifies that all buildings shall provide entry via one of the following Building Entry Elements: Porch, Dooryard, Terrace, Stoop, Lobby Entry or Shopfront, as allowed by zone in Table 3.10-6 and that additional standards for each of these types are provided in subsections 3.10.D.4.a-f.
39.Section 3.11 (Private Signage) of the Specific plan specifies standards for private signage that is applicable to all new signs including on new buildings and renovations or additions to existing buildings. The submitted building elevation drawings specify conceptual wall-mounted signage for the northern, eastern and western building elevations. There is no information provided on whether the proposed project intends to have on -site freestanding signage and there is no information on whether there will be on-site directional or menu board signage. As such, compliance to Section
3.11 cannot be determined at this time. Therefore, a condition of approval is needed requiring demonstration of compliance to Section 3.11 for any and all wall-mounted, freestanding, menu and directional signage.
40.Section 3.12 (Parking) of the Specific Plan specifies standards for surface parking and structured parking including the number of parking spaces and parking design standards. Section 3.12.2.b
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 184 of 486 specifies that compliance with the standards of Section 3.12 is not required when one or more of the following exists:
b. Compliance with these standards is not required in the following instances:
i. a change of use within an existing building; or
ii. an expansion of an existing building that does not result in an increase in floor area by more than 25 percent; or
iii. a replacement of an existing building that does not result in an increase in floor area by more than 25 percent.
41.The project proposes to replace two existing buildings total 11,872 square feet in size that is currently served by 41 existing surface parking spaces. The proposed new building will be approximately 3,083 square feet in size and will have 33 on -site parking spaces. As such, the proposed project qualifies for consideration pursua nt to Section 3.12.2.b.iii and does not have to demonstrate compliance to Section 3.12.
42.Section 3.13 (Site Design) specifies standards for the design and location of various site design elements for the purpose of the health, safety, and general welfare of the immediate occupants of each building, and for the neighborhood. This section addresses utility access and equipment, mechanical and electrical equipment, telecommunication devices, wet utilities, service entrances and waste disposal areas, fence and wall heights, entrance arbors, lighting, landscaping, stormwater and open space.
43.Section 3.13.B.1.a specifies that utility access and equipment such as back -flow preventers, transformer boxes, gas and electric meters, and other utilities shall be placed within or adjacent to and be accessed from the alley, subject to the requirements and approval of the associated utility company. This Section further specifies that on lots with no alley, meters and similar equipment shall be located in undergrou nd vaults or in utility rooms/closets within buildings, were possible and that if such locations are infeasible, these services shall be located in inconspicuous locations along the sides of project sites and shall be thoroughly screened from public view. The submitted site plan specifies an on -ground transformer adjacent to the southern building elevation of the proposed on-site building. The submitted landscape plan specifies a combination of groundcover and shrub plantings planted around the transformer, however, these plantings do not appear to thoroughly screen the transformer from public view. Therefore, a condition of approval requiring evidence on the final landscape plan submitted for administrative review and approval prior to building permit issuance of thorough screening is required.
44.Section 3.13.B.2.a-c specifies the following: a) all mechanical and electrical equipment – including, but not limited to, air -conditioning units, antennas, garage door motors – whether roof-mounted, ground-mounted or otherwise, shall be screened from public view or located so as not to be visible from streets or open spaces. Such equipment and related screening shall be designed with materials and colors that conform to and are an integral part of the design of t he building; b) mechanical equipment that generates noise, smoke or odors, shall not be located on or within 10 feet of a public right of way or any on-site common open spaces; and c) noise- and odor-generating equipment and containers shall be located in areas that will not create a nuisance to adjacent properties. The applicant has specified that roof top equipment will be screened by parapet walls as specified on Sheets A3.1 and A3.2. The applicant further specifies that electrical switchgear has been lo cated behind the building to screen it from view and will also be surrounded by landscaping and that this switch gear will be located in a closet and will not be visible. The applicant specifies that the location of water and/or gas meters are not currentl y known at this time.
Therefore, a condition of approval requiring evidence on the final landscape plan submitted for administrative review and approval of thorough screening on -site water and/or gas meters to
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 185 of 486 demonstrate compliance to Section 3.13.B.2.a shall be required prior to the issuance of a building permit.
45.Regarding Section 3.13.B.2.a, the submitted plan documents did not originally specify whether site related mechanical or electrical equipment will be roof -mounted or ground-mounted and how this equipment would be screened from public view or located so as not to be visible from streets or open spaces and further did not specify how the equipment and screening will be designed with materials and colors that conform to and are an integral par t of the design of the building. The applicant subsequently clarified that site related mechanical equipment will be roof -mounted and will be screened by parapet walls. Prior to certificate of occupancy, the applicant shall completely screen meaning not visible from Highway 111 or adjacent properties on the east, west and south on all sides via roof parapet walls or similar treatment all roof -mounted mechanical equipment.
The applicant further clarified that electrical switchgear will be located behind the building to screen it from view, will also be surrounded by landscaping and will be located in an accessible closet.
Prior to certificate of occupancy, the applicant shall enclose all electrical switchgear within an accessible closet space that will be further screened by landscaping as specified on the approved final landscape plan. The applicant has advised that the location of water and gas meters is not currently known, but that their installed location will be screened from public view with on -site landscaping. Prior to certificate of occupancy, the applicant shall effectively screen from public view water and gas meters with landscaping specified on the approved final landscape plan.
46.Regarding Section 3.13.B.2.b, the submitted plan documents did not originally provide any information as to whether mechanical equipment that generates noise, smoke or odors would be located on or within 10 feet of a public right of way or any on -site common open spaces. The applicant subsequently clarified that on -site mechanical equipment that generates noise, smoke, or odors is located in the roof well and is more than 10 feet from the property lines as the building is located a minimum of about 34 feet from the property line. Therefore, compliance to this Section is satisfied.
47.Regarding Section 3.13.B.2.c, the applicant did not originally specify whether noise and odor - generating equipment and containers would be located in areas that would not create a nuisance to adjacent properties except that the submitted plan documents did specify a separate trash enclosure area located southwest of the proposed on -site building. The applicant has further specified that the trash enclosure has been shifted back in the site so that the building screens it from the street and that trash enclosure drawings will be provided that show a decorative roof, a steel frame with decorative mesh installed between the top of the wall and the roof structure to allow for air flow, and metal gates to screen the dumpsters from view that will prevent people and animals from unauthorized entrance. Prior to the issuance of a certificate of occupancy, the applicant shall submit for building and planning review and approval trash enclosure plan documents demonstrating compliance to Section 3.13.B.2.c of the Highway 111 Corridor Specific Plan with said plans demonstrating at a minimum the provision of a decorative roof, a steel frame with decorative mesh installed between the top of the wall and the roof structure to allow for air flow, and metal gates to screen the dumpsters from view that will prevent people and animals from unauthorized entrance.
48.Section 3.13.C (Grading & Site Walls) and more specifically Section 3.13.C.1-5 specifies standards for fences and walls. The submitted site plan specifies a screen wall along the property’s eastern property line that extends partially into the curved drive-through aisle. The submitted plans do not specify adequate detailed information to determine conformance to Section 3.13.C. The applicant on the record during the Planning Commission public hearings stated that this screen wall would be extended to the southern edge of the on -site pedestrian crossing from Highway 111 into the
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 186 of 486 project site. Therefore, a condition of approval requiring the physical construction extension of the planned 36-inch high screen wall with an exterior plaster finish and stone cap to screen the on-site drive-through aisle to the southern edge of the on-site pedestrian crossing from Highway 111 into the project site for complian ce to Section 3.13.C of the Highway 111 Corridor Specific Plan shall be required prior to the issuance of the certificate of occupancy.
49.Section 3.13.D (Lighting) specifies the following standards:
1. General to All
a. Site lighting shall be shielded by permanent attachments to light fixtures so that light sources are not visible from a public way and to prevent off-site glare. b. Specific to residential ground floors: site and building-mounted luminaires shall produce initial illuminance value no greater than 0.04 horizontal and vertical foot candles. c. Specific to nonresidential ground floors: site and building -mounted luminaires shall produce a maximum initial illuminance value no greater than 0.1 horizontal and vertical foot candles at the boundary with adjoining residential lots, and no greater than 0.01 horizontal foot candles 10 feet beyond that boundary.
2. Lighting Abutting the Public Realm. Lighting within surface parking lots, private frontages, and any other on -site open space that abuts a public right of way shall comply with the following standards:
a. Lighting shall be shielded by permanent attachments to fixtures so that light sources are not visible from adjacent properties or the public right of way. b. No freestanding fixture shall exceed a height of 15 feet as measured from finished adjacent grade.
c. Light sources shall have a maximum output of no greater than 3,00 lumens. d. Required illuminance (in foot candles)
i. Max: 4.0
ii. Min: 0.2
iii. Max average: 0.8
iv. Uniformity ratio (max/min): 20/1
v. Uniformity ratio (average/min): 4/1
50.The applicant submitted a photometric lighting plan that partially addresses Section 3.13.D.1-2 that was supplemented by the applicant following the culmination of the Planning Commission’s public hearing process. The applicant specified in the supplementa l written and plan information the following: a) shielding methods of light fixtures: images of the fixtures to illustrate a flat lens with only downward light direction (similar to what is shown on the specific plan) were added to E1.3.
The light fixture cut sheets were also added to E1.6 to also illustrate this; b) freestanding fixture height: the light pole elevation/detail is shown on sheet E1.1. This indicates the fixture height. The height is also specified on the fixture images on sheet E1.3 and the cut sheets on sheet E1.6. The fixture height is 15’-0”; c) foot candle readings: the light fixtures were reselected and relocated to achieve Specific Plan requirements. The general drive and parking area statistics have been added to sheet E1.2, and new sh eets E1.4 & E1.5 were added for the readings at the property line, which do not exceed 0.8 FC; and d) light source lumen output - the lumen output for each fixture has been specified on the light fixture cut sheets on sheet E1.6. They do not exceed 3,000 lumens. A condition of approval specifying the submittal prior to building permit issuance for administrative review and approval of a final photometric lighting plan demonstrating compliance to Section 3.13.D.1 -2 of the Highway 111 Corridor Specific Plan s hall be required. Further, a condition of approval specifying the installation of all on -site lighting poles fixtures and lumens in compliance with the approved final photometric lighting plan prior to the issuance of a certificate of occupancy shall be required.
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51.Section 3.13.E.1 specifies the following standards:
a. Where front yards are landscaped, individual paths to the sidewalk shall be provided for each entrance.
b. Allowed species. Trees and Plant material shall be native to the Sonoran De sert, or adaptive from regions with similar arid climates (such as the Mojave Desert). c. Invasive species. Invasive plant species shall be prohibited. d. Desert-adapted plants. All plants shall be water-conserving, drought-tolerant plants. e. Green screens. Landscape shall be used to soften walls and fences and provide green screens, where appropriate, between residential and nonresidential buildings. f. Climate mitigation. Trees, shrubs, hedges, and deciduous vines are encouraged to be used to minimize solar heat gain during the summer and maximize heat gain during the winter. g. Crime Prevention through Environmental Design (CPTED). All landscape plans shall be reviewed by a CPTED-qualified member of the Indio Police Department.
The applicant ’s submitted landscape plan demonstrates compliance to applicable portions of Section 3.13.E.1. However, the applicant shall submit a final landscape plan inclusive of an irrigation plan for on-site landscaping for administrative review and approval prior to the issuance of a building permit that addresses conformity to Section 3.13.E.1, as applicable and that is subject to review by a CPTED-qualified member of the Indio Police Department.
52.Section 3.13.E.2 specifies the following standards:
i. Stair treads. Exterior stair risers and treads shall be constructed of durable and permanent materials and in a manner that is consistent with the design of the rest of the building. ii. No grass/turf shall be allowed; only desert-appropriate landscaping shall be allowed. iii. Paving materials should be decorative and complementary to the main building design. iv. Where hardscape is used, permeability shall be incorporated into the design. i. New landscapes shall comply with state and City requirements for Water Efficient Landscapes. j. Irrigation. Permanent and automatic irrigation systems shall be provided for all landscaped areas per the City’s Water Efficient Landscaping Ordinance.
53.Regarding Section 3.13.E.2.i, the proposed project does not propose any stair treads.
54.Regarding Section 3.13.E.2.ii, the applicant’s submitted landscape plan does not indicate the installation of grass or turf and indicates desert appropriate landsc aping. However, to ensure compliance to this standard, a condition of approval demonstrating compliance to Section
3.13.E.2.ii is warranted.
55.Section 3.13.F (Stormwater) specifies the following:
1. General to All
a. Ground water recharging and sto rmwater runoff limits shall be facilitated on all parts of new building sites. See NACTO’s Urban Street Stormwater Guide and the Light Imprint Handbook, by Thomas E. Low; Possible strategies include:
i. Rain gardens and vegetated bioswales that convey and infiltrate rainwater. ii. Pervious pavement that allows stormwater to infiltrate directly into the ground below. b. Stormwater management shall be provided through a system that is integral to streetscapes (swales within medians or parkways) and/or open space(s) in the development. These areas shall double as visual features and be accessible to the public.
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56.The applicant has not provided detailed information demonstrating compliance to Section 3.13.F (Stormwater). Therefore, a condition of approval requiring that Section 3.13.F (Stormwater) of the Highway 111 Corridor Specific Plan be addressed as part of the required Water Quality Management Plan review process managed by the City’s Engineering Division prior to the issuance of a grading permit is warranted.
57.Section 3.14 (Limited Uses in the MU -C Zone) specifies standards for Limited Land Uses within the boundaries of the Specific Plan. Section 3.14.2.a-i address applicability of the standards in this Section including but not limited to ap plying only to properties in the Mixed Use Corridor zone, limited land uses consisting of freestanding single-use (pad) commercial buildings with and without drive-through service facilities, office/light industrial buildings, adaptive re -use of existing commercial/industrial buildings and parking lots that occupy greater percentages of one or more street frontages than prescribed by the standards of Sections 3.8 and 3.12. The standards of this section do not exempt a proposed development from the Subdivisi on & Public Realm Network Completion standards of Section 3.6. Also, the standards in this section do not exempt a proposed development from the location -specific commercial -use requirements of the MU -C Zone. The Illustrative Site Plan specifies potential limited land uses within the MU -C zone portion of the project site. As such, the review and approval for these uses will be subject to future compliance with applicable provisions of Section 3.14 and will be subject to both Planning Commission and City Council review and approval.
58.Section 3.14.B.1 specifies standards that are applicable to all limited land uses comprised of:
a. Building Use. Specific land uses allowed for “Limited Uses” in the MU -C Zones are listed in Section 3.5, along with the pla nning permit type required for approval of each use. Any use not listed in this section shall be considered “Not Permitted.” b. Locations. Concentrations of commercial uses should be at the same node locations specified in the General Standards for the Mixed-use Corridor Zone. c. Building Placement
i. Buildings shall be oriented toward the sidewalk, meaning that the prima ry entrance (and/or a walk-up service window) is provided directly from the sidewalk. ii. Building facades shall be located parallel to and near the frontage sidewalk to promote visibility and pedestrian access into businesses and to help provide spatial definition of the public realm. iii. If located on a corner lot, the building shall be located at the corner, fronting both streets. iv. The Frontage Buildout requirements listed in Table 3.8-1 may be waived for provided buildings are in conformance with the requirements of the rest of this Section. d. Access
i. Simple and direct pedestrian access to the main building entrance from the sidewalk must be provided. The main entrance shall not be located on a façade facing opposite the Corridor and must be located to face Highway 111 or a pedestrian -oriented open space that is open to and directly accessible from Highway 111.
ii. Secondary pedestrian access to the building may be provided from adjacent parking lots. iii. The walkway leading from the sidewalk to the main entrance shall be wide and welcoming, per the Public Frontage Standards of Section 3.7.C.4.
iv. Setback areas shall be designed per the on-site sidewalks, landscaping, and lighting standards of Section 3.13, Site Standards and Guidelines.
e. Building Height. Building height: 16’ minimum (to eaves). f. Building Massing, Frontage, and Facades
i. The architecture of the building shall provide large openings that clearly convey that the façade facing the street - particularly facades facing 111 - is the front of the building, regardless of where the main building entry is located.
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 189 of 486 ii. For Façade fenestration requirements see Section 3.10.B.3. iii. Facades over 100’ in width are subject to the Façade Standards in Section 3.10.A.3. g. Parking & Circulation
i. The visual impact of surface parking shall be mitigated to maintain the desired street character (see UDC Chapter 3.03, Parking Standards).
ii. Surface parking shall generally be locate d behind the building and screened by the building mass, low walls, pergolas, and/or landscaping.
iii. A limited amount of on-site parking is permissible along the side of the building, adjacent to the front sidewalk along 111 as a Parking Court (see Section 3.11.D.3.a.), but is prohibited from being located between the building and the Corridor sidewalk, per UDC Chapter 3.03, Parking Standards.
iv. Vehicular entrances to the site shall be located as far as practical from street intersections to allow adequate stacking room.
v. Vehicular entrance curb cuts shall be limited to one per adjacent street, and wherever possible should be located on common property lines to provide access from one driveway to at least two properties.
vi. To further reduce traffic congestion and parking demand, sidewalks for comfortable pedestrian access shall be provided between adjacent buildings and properties. And wherever feasible, reciprocal vehicular access between adjacent parking areas shall also be provided.
59.Regarding Section 3.14.B.1.a, the project is identified as a limited land use and is subject to conditional use permit approval from the City Council as well as concurrent Planning Review approval from the City Council. Regarding Section 3.14.B.1.b, the project proposes to replace vacant commercial buildings in a built up area of the Corridor.
60.Regarding Section 3.14.B.1.c.i, the submitted plans specify two door accesses located on the northern building elevation and the western building elevation, however, the primary and secondary statuses of these doors were not originally specified. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted updated elevation drawings demonstrating the primary door entrance into the building will be located on the northern building elevation as it most directly connects to the existing public sidewalk on Highway 111 and to the raised on-site pedestrian crossing extending through the site from Highway 111.
61.Regarding Section 3.14.B.1.c.ii, the project’s building façade is not located parallel to and near the frontage sidewalk and is instead perpendicular to the frontage sidewalk and is situated approximately 52 feet back from this sidewalk. As previously noted, the building orientation is a result of the irregular shape of the subject parcel of land and the building s etback is due to the need to maintain existing cross-circulation easements with existing built properties east and west of the subject property. This cross -circulation pattern cannot be relocated due to the existing placements of on-site buildings on these adjacent properties.
62.Regarding Section 3.14.B.1.c.iii, the subject property is not a corner lot and as such, this Section is not applicable to the proposed project. Regarding Section 3.14.B.1.c.iv, the lack of conformity to Table 3.8-1 has been previously addressed relative to the irregular shape of the subject parcel of land and the need to maintain cross -circulation easements. Therefore, a condition of approval requiring conformity with applicable portions of Section 3.14.B.1 is warranted in order to allow for the waiving of the frontage buildout requirements specified in Table 3.8-1.
63.Regarding Section 3.14.B.1.d.i, the submitted plans specify two door accesses located on the northern building elevation and the western building elevation, howe ver, the main and non -main
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 190 of 486 statuses of these entrances are not specified. Following the conclusion of the Planning drawings elevation updated applicant the submitted the of review Commission’s project, demonstrating the primary door entrance into the building will be located on the northern building elevation as it most directly connects to the existing public sidewalk on Highway 111 and to the raised on-site pedestrian crossing extending through the site from Highway 111.
64.Regarding Section 3.14.B.1.d .ii, the submitted plans specify two door accesses located on the northern building elevation and the western building elevation, however, the main and secondary statuses of these entrances were not originally specified. Following the conclusion of the Planning Commission’s updated drawings elevation submitted applicant project, the of review the demonstrating the primary door entrance into the building will be located on the northern building elevation as it most directly connects to the existing public si dewalk on Highway 111 and to the raised on-site pedestrian crossing extending through the site from Highway 111.
65.Regarding Section 3.14.B.1.d.iii, the submitted plans specify a pedestrian connection from Highway 111 onto the subject property crossing the cross-circulation drive and also the drive - through lane before connecting to the building adjacent on-site sidewalk. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted an updated site plan a raised ped estrian crossing comprised of stamped concrete measuring six (6) feet wide and ½ foot high. The applicant shall be required via a condition of approval to construct the raised pedestrian crossing in conformance with the approved site plan comprised of stam ped concrete measuring six (6) feet wide and one half of a foot high prior to the issuance of a certificate of occupancy.
66.Regarding Section 3.14.B.1.d.iv, the proposed on -site setback areas have been designed in accordance with applicable provisions of Section 3.13, Site Standards and Guidelines.
67.Regarding Section 3.14.B.1.e, the proposed building height is 21.5 feet that exceeds the minimum 16-foot height standard and as such, the project complies with this Section.
68.Regarding Section 3.14 .B.1.f.i, the northern building elevation facing Highway 111 has windows and a door indicating that this is the front of the building and as such, the project complies with Section 3.14.B.1.f.i.
69.Regarding Section 3.14.B.1.f.ii, the project was previo usly analyzed for compliance to Section
3.10.B.3 conditions compliance this address to appropriate of have and approval been recommended. Regarding Section 3.14.B.1.f.iii, there is one (1) on-site structure that has a façade length of 40 feet and as such, this Section is not applicable to the proposed project.
70.Regarding Section 3.14.B.1.g.i, the project proposes on-site surface parking located along with the western portion of the property and west of the proposed on -site building. The location of the surface parking is necessary due to the irregularly shaped nature of the parcel and the need to accommodate the on -site building and its associated drive -through component. The submitted landscape plan specifies a limited amount of desert appropriate land scaping within the proposed on-site parking area.
71.Regarding Section 3.14.B.1.g.ii, the proposed on -site surface parking area is located along with the western portion of the property and west of the proposed on -site building and not behind the building. The originally submitted landscape plan did not demonstrate the effective screening of this surface parking such that compliance to Section 3.14.B.1.g.ii could be determined. However, as part of the Planning Commission’s continued public hearing proces s, the applicant submitted
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 191 of 486 an updated landscape plan that specified the intent to plant additional canopy trees to address this Section that demonstrates compliance to it.
72.Regarding Section 3.14.B.1.g.iii, there is no on-site parking proposed between the building and the Corridor sidewalk and as such, the project complies with this Section.
73.Regarding Section 3.14.B.1.g.iv, there is one vehicle entrance proposed for the site. This entrance is located approximately 500 lineal feet east of the High way 111 and Dr. Carreon Boulevard intersection and approximately 1,000 lineal feet west of the Highway 111 and Las Palmas Road intersection and as such, the project complies with this Section.
74.Regarding Section 3.14.B.1.g.v, the project proposes to utilize the existing vehicle entrance curb cut onto Highway 111 that is also utilized by the property to the immediate east and as such, the project complies with this Section. Regarding Section 3.14. B.1.g.vi, the existing sidewalk on Highway 111 provides pedestrian access between the subject property and the properties immediately west and east of this property. At present, there are cross -circulation easement agreements between the subject property a nd the properties immediately west and east of this property. As such, the project complies with Section 3.14.B.1.g.vi.
75.Section 3.14.C.1-3 specifies standards that are applicable to all limited land uses comprised of:
1. Intent and Applicability. The intent of these standards is to ensure that:
a. New freestanding commercial buildings shall contribute to the overall pedestrian experience and quality of life within the Corridor, while minimizing any negative impacts to the mixed -use urban character envisioned for the Corridor.
b. New buildings that provide drive -through facilities operate efficiently while minimizing the negative impacts on traffic, pedestrian safety, and street character. No part of a drive -through facility may interfere with clear and safe pedestrian access to the building’s main entrance, nor detract from the building’s frontage character facing the Corridor.
2. Freestanding Commercial Building Standards
a. Frontage
i. Active uses (retail, dining, bar, etc.) shall be located along the street -facing fa çade, with fenestration as required in Section 3.10.B and 3.10.C to render business activity clearly visible from the street.
ii. Active outdoor spaces (dining, gathering, etc.) are encouraged, and when provided shall be located so as to be clearly visible from 111 and/or other streets. iii. Outdoor dining areas shall be defined by low fences and/or low landscaping. Where adjacent to the drive -through stacking aisle, a landscape buffer of at least six (6) feet in width shall be provided. See Section 3.13 (Site Standards) for additional requirements. iv. Encroachments. Sun -shading devices (awnings, canopies, porches, pergolas, umbrellas, trees, etc.) shall be provided over any active outdoor spaces to provide a more comfortable, user- friendly environment. See requirements in Section 3.10.D (Projecting Architectural Elements), and Section 3.13 (Site Standards).
3. Drive-Through Facilities Standards
a. Permit requirements. Drive -through facilities - as defined in the UDC - shall require a Conditional Use Permit and are permitted only within the Mixed-Use Corridor Zone. b. Access
i. To the greatest extent possible, driveways providing access to or egress from a drive-through service lane shall also provide access to the customer parking lot. ii. Drive-through lanes adjacent to the building shall be screened from the Highway 111 Corridor and all sidewalks by the building mass, low walls (3’ -4’ tall), pergolas, and/or landscaping. See
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 192 of 486 Figures 3.14-2 for preferable configurations. Drive -through lanes elsewhere on the site shall be screened from the street in the manner required for parking lots. iii. Locating the drive-through lane between a building and the Highway 111 Corridor sidewalk is strongly discouraged. However, if there is no other alterna tive, a clearly marked pedestrian walkway shall provide clear access from the sidewalk, across the drive-through lane, to the building entrance (see Figure 3.14-3). The pedestrian walkway shall be designed as a crosswalk, including signage and cues such as striping or material changes.
c. Frontage
i. If a drive -through lane is located between the building and the Corridor sidewalk, the drive - through shall be integrated into the building design via a “faux” façade or screen wall built between the drive-through lane and the sidewalk that shall either be built to look like an extension of the primary building and made of the same material, or be built as an arcade or pergola addition to the primary building. The façade or screen wall must present a general ly open, fenestrated appearance meeting the intent of Façade requirements in Section 3.10.B while also substantially screening views of idling vehicles, by spanning the entire length of the primary façade(s) facing the sidewalk (see Figure 3.14-3).
d. Parking
i. Drive-through lanes shall be physically separated from the parking lot by low walls (3’ to 4’ tall), pergolas, and/or landscaping (See Figures 3.14-2 and 3.14-3). ii. If a drive -through lane is located between the building and the parking lot , a clearly marked pedestrian crossing across the travel lane shall connect the parking lot to the building entrance.
76.Regarding Section 3.14.C.1.a, the project is a new freestanding commercial building comprised of a fast-food or quick service restaurant with an attendant drive-through component. The project as originally designed does not fully contribute to the overall pedestrian experience and quality of life within the Corridor, however, because of the subject parcel’s irregular shape and the need to maintain cross circulation drives adjacent to Highway 111 with the existing properties to the east and west, the project is reasonably limited in comprehensively addressing Section 3.14.C.1.a.
77.Regarding Section 3.14.C.1.b, the on -site building is located on a north -south orientation. The northern elevation of the building is comprised of composite architectural materi als, windows and an entrance door. There is a pedestrian connection proposed from the existing sidewalk on Highway 111 through the site intersecting the on-site portion of the cross-circulation drive and the drive-through aisle. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted an updated site plan a raised pedestrian crossing comprised of stamped concrete measuring six (6) feet wide and ½ foot high demonstrating compliance to Section
3.14.C.1.b.
78.Regarding Section 3.14.C.2.a.i, the project is a fast-food restaurant with drive-through component with the main on-site building located approximately 50 feet from Highway 111 due to the subject property’s irregular shape and the need to maintain existing cro ss-circulation drive areas with the properties to the immediate east and west. The project has been evaluated for conformity to Sections 3.10.B and 3.10.C and has been found to be in conformity or can be found in conformity with the application of conditions of approval. Regarding Section 3.14.C.2.a.ii, the applicant is not proposing any active outdoor spaces, which are only encouraged and are not prescriptively required and as such, this Section is not applicable to the project.
79.Regarding Section 3.14.C.2.a.iii, the applicant is not proposing any active outdoor spaces, which are only encouraged and are not prescriptively required and as such, this Section is not applicable to the project.
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80.Regarding Section 3.14.C.2.a.iv, the applicant is not prop osing any active outdoor spaces, which are only encouraged and are not prescriptively required and as such, this Section is not applicable to the project.
81.Regarding Section 3.14.C.3.a, the project is proposed as a fast -food restaurant with attendant drive-through facility and is located on property that has been designated Mixed Use Corridor Zone by the adopted Highway 111 Corridor Specific Plan and as such, the project complies with this Section.
82.Regarding Section 3.14.C.3.b.i, the project site driveway provides access to both the drive-through service land and to the customer parking lot and as such, the project complies with this Section.
83.Regarding Section 3.14.C.3.b.ii, the on -site drive-through lane originates in the rear of the site, runs parallel to the property’s eastern property line and curves in front of the building fronting along Highway 111. The submitted site plan specifies a screen wall/trellis along the eastern property line and a small section of screen wall in the “curve” of the drive-through lane as it transitions to in front of the building. The submitted color elevation drawings show an elevation for the proposed screen/wall trellis, but do not specify dimensions. The submitted landscaping shows a limited amount of shrubs and groundcovers situated immediately north of the drive -through lane as it curves in front of the building. The applicant shall submit construction documents and a final landscape plan prior to the issuance of a building permit demonstrating compliance t o the drive- through lane screening requirements of Section 3.14.C.3.b.ii.
84.Regarding Section 3.14.C.3.b.iii, there is a pedestrian connection proposed from the existing sidewalk on Highway 111 through the site intersecting the on -site portion of the c ross-circulation drive and the drive -through aisle. The submitted plans do not specify design details for this pedestrian connection such that a determination that designed as a crosswalk, including signage and cues such as striping or material changes The refore, a condition of approval is warranted requiring the submittal of modified plans demonstrating that the on-site pedestrian connection from Highway 111 to the building’s main entrance has been designed and will be constructed in conformity to the specifications of Section 3.14.C.3.b.iii. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted an updated site plan a raised pedestrian crossing comprised of stamped concrete measuring six (6) feet wide and ½ foo t high.
The applicant shall be required via a condition of approval to construct the raised pedestrian crossing in conformance with the approved site plan comprised of stamped concrete measuring six (6) feet wide and one half of a foot high prior to the issuance of a certificate of occupancy.
85.Regarding Section 3.14.C.3.c.i, the submitted plans specify a screen wall and architectural trellis element along the eastern property line, but they do not fully address conformity to this section.
Specifically, the proposed screen wall and architectural trellis should extend along a portion of the eastern building elevation from the southern edge of the eastern building elevation to the southern edge of the first window set on the eastern building elevation and further that this screen wall and architectural trellis should be topped with a partially enclosed to fully enclosed cover to address architectural integration. Therefore, a condition of approval is warranted requiring prior to building permit issuance the submittal of construction documents specifying the extension of the screen wall and architectural trellis along a portion of the eastern building elevation from the southern edge of the eastern building elevation to the southern edge of the first window se t on the eastern building elevation and the toping of the screen wall and architectural trellis with a partially enclosed to fully enclosed cover to address architectural integration for conformity to Section 3.14.C.3.c.i.
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 194 of 486
86.Regarding Section 3.14.C.3.d .i, the project’s drive through lane is situated on the eastern portion/eastern building elevation of the site and the surface customer parking lot is situated on the western portion/western building elevation of the site and as such, compliance to this Se ction has been achieved. Regarding Section 3.14.C.3.d.ii, the project’s drive-through lane is not located between the building and the parking lot and as such, this Section is not applicable to the project.
ATTACHMENTS:
Attachment1_ResolutionNo10360_WendysCUPPR
Attachment2_ProjectLocationMap
Attachment3_ArchitecturalPlans
Attachment4_Colored Elevations
Attachment5_PreliminaryLandscapePlan
Attachment6_DigitalMaterialsBoard
Attachment7_PhotometricLightingPlan
Attachment8_CategoricalExemptionReport
APPROVAL(S):
Kevin H. Snyder, Dir. Of Community Development Approved - 31 May 2023 Steven Graham, City Attorney Approved - 31 May 2023
Bryan H. Montgomery, City Manager Approved - 01 Jun 2023
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 195 of 486 1 RESOLUTION NO. 10360
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA
GRANTING CONDITIONAL APPROVAL OF A CONDITIONAL USE PERMIT AND PLANNING REVIEW PERMIT FOR THE WENDY’S DRIVE-THROUGH RESTAURANT PROJECT ON ASSESSOR’S PARCEL NUMBER ( APN) 616 -101-003 FURTHER IDENTIFIED AS 81703 HIGHWAY 111, INDIO, CA 92201 PURSUANT TO THE PROVISIONS OF THE HIGHWAY 111 CORRI DOR SPECIFIC PLAN ADOPTED BY THE INDIO CITY COUNCIL ON SEPTEMBER 21, 2022 AND MAKING A FINDING OF THE APPLICABILIT OF A CLASS 32 “INFILL” CATEGORICAL EXEMPTION DETERMINATION PURSUANT TO SECTION 15332 OF THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA) GUIDELINES AND MAKING A FINDING
OF CONSISTENCY WITH THE PROGRAM FINAL ENVIRONMENTAL IMPACT REPORT (PFEIR) FOR THE GENERAL PLAN 2040 CE RTIFIED BY THE INDIO CITY COUNCIL ON SEPTEMBER 18, 2019 AND DETERMINING T HAT NO ADDITIONAL
ENVIRONMENTAL REVIEW IS REQUIRED FOR THE AFOREMENTIONED PROJECT
WHEREAS, on September 21, 2022, the City Council conducted a duly noticed public hearing to consider the Highway 111 Corridor Specific Plan, reviewed the staff report, accepted and considered public testimony and approved Resolution No. 10326 adopting the Highway 111 Corridor Specific plan and repealing the Central Highway 111 Corridor Specific Plan and the Mixed Use Specific Plan-300 (MUSP-300); and, WHEREAS, on September 21, 2022 , the City Council approved Resolution No. 10325 making a finding of consistency with the P rogram Final environmental Impact Report (PFEIR) for the General Plan 2040 certified by the City Council on September 18, 2019 for the adoption of the Highway 111 Corridor Specific Plan; and,
WHEREAS, Sage Investco, 4350 Von Karman Avenue, Suite 200, Newport Beach, CA 92260, submitted a land use entitlement application on November 29, 2022 for development of a new Wendy’s Drive- Through Restaurant on Assessor’s Parcel Number (APN) 616-101-003 further identified as 81703 Highway 111, Indio, CA 92201 located east of the intersection of Dr. Carreon Boulevard and Highway 111 wit hin the municipal limits of the City of Indio; and,
WHEREAS, Sage Investco has requested Conditional Use Permit and Planning Review Permit approvals for a 3,068 square foot Wendy’s drive- through restaurant with 33 on-site surface parking spaces, associated on-site landscaping and business signage and vehicular access onto and from Highway 111; and,
WHEREAS, Sage Investco has submitted written materials intended to support its requested for a Class 32 “Infill” Categorical Exemption determination pursuant to Section 15332 of the California Environmental Quality Act (CEQA) Guidelines; and, WHEREAS, Section § 15168 (c)(2) specifies that if the agency finds that pursuant to Section § 15162, no subsequent EIR would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 196 of 486 2 environmental documentation would be required. Whether a later activity is within the scope of a program EIR is a factual question that the lead agency determines based on substantial evidence in the record. Factors that an agency may consider in making the determination include, but are not limited to, consistency of the later activity with the type of allowable land use, planned density and building intensity, geographic area analyzed for environmental impacts, and covered infrastructure as described in the P rogram EIR; (PFEIR) and,
WHEREAS, Section § 15162 specify the following: (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respec t to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline t o adopt the mitigation measure or alternative; and,
WHEREAS, Section § 15162 (b) specifies that if changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subdivision (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or no further documentation; and,
WHEREAS, Section §15183 (Projects Consistent with a Community Plan or Zoning) of the California Environmental Quality Act (CEQA) Guidelines, subsection (a) states that additional environmental review is not required for projects “which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified”, except as might be necessary to determine whether there are project-specific significant effects; and,
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 197 of 486 3 WHEREAS, on September 18, 2019, the Indio City Council certified the Program Final Environmental Impact Report ( PFEIR) for the General Plan 2040 through its adoption of Resolution No. 10106. This FEIR was prepared as a program EIR; and,
WHEREAS, pursuant to CEQA Guidelines Sections 15162, 15168 and 15183, the Community De velopment Director for the City of Indio , acting as the lead agency representative, determined that the Wendy’s Drive-Through Restaurant Project is within the scope of the PFEIR for the General Plan 2040 as the Project will substantively implement the General Plan 2040’s vision, intent, policies and goals and the signage and zoning amendments are intended to make these regulations consistent with the General Plan. Therefore, the Community Development Director has determined that no new environmental documentation is required; and,
WHEREAS, on April 14 , 2023 the Community Development Department mailed written notices of the public hearing for the April 26, 2023 Planning Commission public hearing for the Wendy’s Drive- Through Restaurant Project to all property owners within 500 feet of the perimet er of the subject property and published a legal notice of public hearing in the Desert Sun, the newspaper of record, on April 14, 2023; and, WHEREAS, on April 26, 2023, the Planning Commission held a duly noticed public hearing to consider the application for the Project during which evidence, both written and oral, including the staff report and supporting documents was presented at said hearing and continued the public hearing to a date and time certain of May 10, 2023 beginning at 6:00 p.m. with direction to the applicant to provide additional written and plan information pertaining to a) project landscaping enhancements; b) enhancement of the pedestrian connection from Highway 111 to the main building entrance; and c) screening enhancements for the drive-through lane; and,
WHEREAS, the Planning Commission conducted the continued public hearing on May 10, 2023 and following the conclusion of the continued public hearing and deliberation, the Planning Commission voted 4-0-1 to recommend to the City Council for the City of Indio, California the conditional approval of the Conditional Use Permit and Planning Review Permit for the Wendy’s Drive- Through Restaurant Project with the motion vote outcome specified in the meeting minutes for the May 10 , 2023 Planning Commission meeting; and,
WHEREAS, on May 24, 2023 , the Community Development Department mailed written notices of the public hearing for the June 7, 2023 City Council public hearing for the Wendy’s Drive-Through Restaurant Project to all property owners within 500 feet of the perimeter of the subject property and published a legal notice of public hearing in the Desert Sun, the newspaper of record, on May 24, 2023; and,
WHEREAS, on June 7, 2023, the City Council held a duly noticed public hearing to consider the conditional approval of a conditional use permit and planning review permit for the Wendy’s Drive-through restaurant project on Assessor’s Parcel Number (APN) 616-101-003 further identified as 81703 H ighway 111, Indio, CA 92201 pursuant
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 198 of 486 4 to the provisions of the Highway 111 C orridor Specific Plan adopted by the I ndio City Council on September 21, 2022, and to consider making a finding of the applicability of a Class 32 “ Infill” categorical exemption determination pursuant to S ection 15332 of the California Environmental Quality Act ( CEQA) Guidelines, and to consider making a Finding of Consistency with the Program Final Environmental Impact Report (PFEIR) for the General Plan 2040 certified by the Indio City Council on September 18, 2019 and determining that no additional environmental review is required for the aforementioned project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO,
CALIFORNIA, HEREBY RESOLVES, FINDS AND DETERMINES AS FOLLOWS:
Section 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Resolution are true and correct, are incorporated into this Resolution by reference and constitute a material part of this Resolution.
Section 2. Class 32 “Infill” Categorical Exemption. The City Council finds that the Wendy’s Drive-Through Restaurant Project qualifies for a Class 32 “Infill” Categorical Exemption pursuant to Section 15332 of the California Environmental Quality Act (CEQA) as substantiated by the November 2022 Categorical Exemption report prepared by The Altum Group because: a) the project has been determined to be consistent or can be made consistent with the application of conditions of approval with the City of Indio General Plan 2040 (adopted September 18, 2019) and the City of Indio Highway 111 Corridor Specific Plan (adopted September 21, 2022); b) the project is to be situated on an existing parcel of land located within the city limits of the City of Indio in an existing urbanized area that is 41,818 square feet or 0.96 of an acre in size that is below the statutorily specified requiremen t of no more than five (5) acres; c) the submitted documented prepared by a qualified professional for the requested Class 32 “Infill” Categorical Exemption demonstrates that the project site has no value as habitat for endangered, rare or threatened speci es; d) the project is consistent or can be made consistent with the application of conditions of approval with the City of Indio General Plan 2040 (adopted September 18, 2019) and the City of Indio Highway 111 Corridor Specific Plan (adopted September 21, 2022) and approval of the project would not result in any significant effects related to traffic noise, air quality or water quality that have not already been previously analyzed and/or that cannot be mitigated with the application of relevant conditions of approval; and e) agencies providing public or private utilities and/or public services have determined that the project can be adequately served based on existing service features or the application of conditions of approval to enhance or expand service features.
Section 3. General Plan Program Final Environmental Impact Report. The City Council find s that the Wendy’s Drive- Through Restaurant i s within the scope of the certified Program Environmental Impact Report (PFEIR) for the General Plan 2040 as the Project will substantively implement the General Plan 2040’s vision, intent, policies and
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 199 of 486 5 goals. Therefore, the City Council finds that no new environmental documentation is required pursuant to CEQA Guidelines Sections 15162, 15168 and 15183.
Section 4. Findings. The City Council, based upon the evidence presented at the hearing, including the staff report and written and verbal testimony, finds the following:
1. The General Plan 2040 specifies a Mixed Use Neighborhood (MUN) land use designation for the project site. The MUN land use designation is intended to provide moderate- to higher -intensity neighborhood development that features a variety of multifamily housing choices and limited neighborhood- serving commercial uses in a walkable environment and allows commercial development along major streets and adjacent to a neighborhood center. Primary land uses for this designation include a range of single-family and multi-family residential uses, parks and recreation, mixed use (retail/office, retail/residential, office/residential, and neighborhood-serving retail, general commercial, services, entertainment, live/work, and office. Secondary land uses include public facilities, guest houses, places of worship, schools, family day care homes, public facilities, and others which are determined to be compatible with and oriented toward serving the needs of neighborhoods may also be allowed.
Secondary uses should be focused along mixed- use corridors or at the edges of centers.
2. Policy LU-1.1 (Overall City Structure) of the General Plan 2040 specifies that a clearly defined City structure will be partially established by creating mixed- use corridors along Highway 111, Monroe Street, Avenue 42, and Avenue 44 that contain a mix of retail, service, office, and residential uses. Corridors should have defined nodes that provide a mix of local- and regional-serving uses. The project is proposing a one-story quick-service restaurant with drive- through and associated supportive land uses including surface parking, on-site landscaping, on-site lighting and on-site signage.
3. The City of Indio City Council adopted the Highway 111 Corridor Specific Plan on September 21, 2022. The stated goal of this Specific Plan is: “The City will utilize this Specific Plan as strategic ac tion plan to attract, enable and guide market based economic development to deliver new housing, employment, and public improvements along this important city center corridor, in patterns and forms that systematically realize the long -term vision for centr al Indio, one project and one improvement at a time.” The subject property proposed for the Wendy’s Drive-Through Restaurant Project is currently occupied by two (2) vacant structures comprised of a one (1) story building and a two (2) story building. Thes e structures were previously utilized for office and service related land uses, but have been vacant and underutilized for the last several years. The Applicant is proposing to demolish these two structures and develop the aforementioned fast-food or quick service restaurant.
4. The Vision Statement for the Highway 111 Corridor Specific Plan states: ”The Highway 111 Corridor will be transformed from a suburban highway commercial strip, into a lively, dynamic center of social, cultural and economic activity for the city of Indio - respecting the Corridor’s history and context, building on its existing amenities, reflecting community desires, and leveraging evolving economic opportunities for the
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 200 of 486 6 benefit of the entire community.” The proposed Wendy’s Drive- Through Restaurant Project is an auto-oriented fast food or quick service restaurant land use. As a stand- alone auto oriented land use, it does not by itself contribute to a lively dynamic center of social, cultural and economic activity for the City of Indio. However, the Specific Plan has identified certain limited land uses that are conditionally allowed in recognition that the transformation of the Corridor will likely take significant time and to balance the Corridor’s transformation with the economic development needs and interests of the City and private property rights.
5. The proposed project is being evaluated for consistency with applicable provisions of the Highway 111 Corridor Specific Plan and is being processed as a Planning Review Permit land use entitlement application. Pursuant to Table 3.4.2 of the Specific Plan, the subject site is located within Subarea 14 that is in turn has been an assigned regulatory designations consisting of Mixed-Use Corridor Zone.
6. Pursuant to Section 3.4.C.2 of the Specific Plan, the Mixed Use Corridor Zone is intended to implement the vision for Highway 111 to evolve into a mixed- use central boulevard - characterized by strong urban buildings with active ground-floor uses and frontages that provide services and ameniti es to the adjacent neighborhoods, inject the corridor with daily human activity, and establish a clear and attractive identity for the corridor that is unique to the City of Indio.
7. Section 3.5 (Allowed Uses) of the Specific Plan addresses allowed land uses within the boundaries of the Specific Plan and corresponding permit requirements for each regulatory zone, as applicable. Table 3.5- 1 (Allowed Uses) specifies that all drive- through restaurant land uses are subject to the issuance of a conditional use permit approval and that the issuance of this approval shall ultimately be by the City Council following review and issuance of a recommendation by the Planning Commission.
8. Section 3.1.C.3 (Relationship to Indio Municipal Code and Unified Development Code) specifies that this Chapter relies on several existing procedural requirements of the Indio Municipal Code (IMC) and/or Unified Development Code (UDC), where noted.
In cases where this Chapter is silent, the requirements of the IMC or UDC shall apply (as prescribed in those documents). In cases where there is conflict between the requirements of this Chapter and those of the IMC or UDC, the requirements of this Chapter shall supersede.
9. Section 3.2.G.3.A (Council Approval Required) of the Specific Plan specifies that the following Limited Uses shall require City Council approval inclusive of fueling stations, car washes and any use including a vehicular drive-through.
10. The adopted Specific Plan does not specifically list the require findings for the consideration of the issuance of a conditional use permit approval, therefore, pursuant to
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 201 of 486 7 11. Section 3.1.C.3 (Relationship to Indio Municipal Code and Unified Development Code), applicable provisions of the City’s Unified Development Code for consideration of conditional use permits shall apply.
12. Section 6.04.04.F.1-6 of the City of Indio Unified Development Code comprise the required findings for a conditional use permit land use:
1. The proposed use is allowed within the applicable zone and complies with all other applicable provisions of this Code and all other titles of the Municipal Code;
2. The proposed use is consistent with the General Plan and any applicable Specific Plan;
3. The proposed use will not be adverse to the public health, safety, or general welfare of the community, nor detrimental to surrounding properties or improvements;
4. The proposed use complies with any design or development standards applicable to the zoning district or the use in question unless waived or modified pursuant to the provisions of this Code;
5. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and
6. The site is physically suitable for the type, density, and intensity of use being proposed, including access, utilities, and the absence of physical constraints.
13. Regarding Section 6.04.04.F.1, Section 3.5 (Allowed Uses) of the Specific Plan addresses allowed land uses within the boundaries of the Specific Plan and corresponding permit requirements for each regulatory zone, as applicable. Table 3.5- 1 (Allowed Uses) specifies that all drive- through restaurant land uses are subject to the issuance of a conditional use permit approval and that the issuance of this approval shall ultimately be by the City Council following review and issuance of a recommendation by the Planning Commission. Section 3.3 (Glossary) of the Specific Plan defines a limited use as a development that provides neighborhood serving amenities (including job-creation) along the corridor, but that does not meet all of the form-based standards of the MU-C Zone and may be considered a impermanent use of the land until it is redeveloped to its highest allowed density. Section 3.14.1 (Limited Uses in the MU -C Zone – Intent) of the Specific Plan states that in order to enable market forces to attract near-term reinvestment to the Mixed-Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and processes whereby limited quantities of lower intensity, more automobile-oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed- Use Corridor Zone through the Administrative Use Permit (AUP) or Conditional Use Permit (CUP) process. This Section further states that accordingly, four specific categories of Limited Uses are defined in this Section, including adaptive reuse of existing 1 and 2 -story commercial and office buildings ,development of limited quantities of new buildings of those types, and development of blocks with lower Frontage Buildout percentages and larger quantities of street - adjacent surface parking that otherwise allowed. The Wendy’s drive -through
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 202 of 486 8 restaurant is a limited land use within the Mixed Use Corridor (MU -C) designation of the Specific Plan and is subject to City Council review and approval as a conditional land use and is further subject to applicable design and development standards and regulations of Section 3.14 (Limited Uses in the MU -C Zone). The Wendy’s drive - through restaurant is a quick service restaurant development that provides neighborhood-serving amenities for individuals interested in the products being offered and that will also contribute to job creation in the corridor. As noted in other areas of these findings, the Wendy’s drive-through restaurant does not meet all of the form-based standards of the MU-C zone. In some instances, this lack of compliance is due to the irregular shape of the parcel and the cross -circulation drive aisle along the site’s property frontage connecting to the parcels on either side of the site. In other instances, this lack of compliance is due to the quick-service nature of the restaurant use. However, the Wendy’s drive-through restaurant does comply or can be made to comply with the application of conditions of approval with a significant number of the MU-C zone standards as noted in the findings herein. Further, the project does not meet all of the form -based standards of the MU -C Zone, however, the Highway 111 Corridor Specific Plan has purposely established limited land uses to support near - term reinvestment to the Mixed- Use Corridor Zone until such time that that market forces determine that there is a better and more valuable use for the property and it is redeveloped to its highest allowed density and intensity.
14. Regarding Section 6.04.04.F.2, the City of Indio City Council adopted the Indio General Plan 2040 on September 18, 2019. The City of Indio City Council subsequently adopted the Highway 111 Corridor Specifi c Plan on September 21, 2022. The stated goal of this Specific Plan is: “The City will utilize this Specific Plan as strategic action plan to attract, enable and guide market based economic development to deliver new housing, employment, and public improvements along this important city center corridor, in patterns and forms that systematically realize the long-term vision for central Indio, one project and one improvement at a time.” The subject property proposed for the Wendy’s Drive- Through Restaurant Pr oject is currently occupied by two (2) vacant structures comprised of a one (1) story building and a two (2) story building. These structures were previously utilized for office and service related land uses, but have been vacant and underutilized for the last several years. The Applicant is proposing to demolish these two structures and develop the aforementioned fast food or quicks service restaurant. Table 3.5- 1 (Allowed Uses) specifies that all drive- through restaurant land uses are subject to the issuance of a conditional use permit approval and that the issuance of this approval shall ultimately be by the City Council following review and issuance of a recommendation by the Planning Commission. Section 3.3 (Glossary) of the Specific Plan defines a limi ted use as a development that provides neighborhood serving amenities (including job- creation) along the corridor, but that does not meet all of the form-based standards of the MU -C Zone and may be considered a impermanent use of the land until it is redeveloped to its highest allowed density. Section 3.14.1 (Limited Uses in the MU-C Zone – Intent) of the Specific Plan states that in order to enable market forces to attract near-term reinvestment to the Mixed-Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 203 of 486 9 processes whereby limited quantities of lower intensity, more automobile- oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed- Use Corridor Zone through the Administrative Use Permit (AUP) or Conditional Use Permit (CUP) process. Therefore, the conditional use consideration of the Wendy’s drive-through restaurant is consistent with the General Plan because it is a general commercial land use as specified in the General Plan. It is further consistent with applicable provisions of the Specific Plan because it is considered a limited land use and is being considered as a conditional land use pursuant to applicable provisions of the Specific Plan.
15. Regarding Section 6.04.04.F.3, the project is a quick service or fast food restaurant with drive-through. The project is an auto- oriented land use whose overall land use intent is to provide convenient and auto oriented food service to patrons. The project has been designed to have an i nterior dining area. Further, the project will have a purposely designed pedestrian connecting from the main building entrance to Highway 111 that is intended to provide a non- vehicular access opportunity into and out of the project site. The Vision Statem ent for the Highway 111 Corridor Specific Plan states: ”The Highway 111 Corridor will be transformed from a suburban highway commercial strip, into a lively, dynamic center of social, cultural and economic activity for the city of Indio - respecting the Corridor’s history and context, building on its existing amenities, reflecting community desires, and leveraging evolving economic opportunities for the benefit of the entire community.” The Wendy’s Drive- Through Restaurant Project as a stand-alone auto oriented land use, it does not by itself directly contribute to a lively dynamic center of social, cultural and economic activity for the City of Indio. However, the Specific Plan has identified certain limited land uses that are conditionally allowed in recognition that the transformation of the Corridor will likely take significant time and to balance the Corridor’s transformation with the economic development needs and interests of the City and private property rights. In addition, the subject property proposed for the Wendy’s Drive- Through Restaurant Project is currently occupied by two (2) vacant structures comprised of a one (1) story building and a two (2) story building. These structures were previously utilized for office and service related land uses, but have been vacant and underutilized for the last several years. The Applicant is proposing to demolish these two structures and develop the aforementioned fast-food or quicks service restaurant that will re- introduce land use activity to the subject and will create employment and property tax revenue that is not currently present or less than could be realized because of the aged nature of the existing structures and their lack of reinvestment and use.
16. Regarding Section 6.04.04.F.4, the Wendy’s drive-through restaurant complies or can be made to comply with a substantial majority of the applicable design and development standards specified in the Specific Plan. There are instances where the project cannot comply with a specified design or development st andard because of the irregular shape of the parcel or the existing cross-circulation drive aisle easement along the frontage of the parcel that is required to remain in place to support the cross- circulation needs of the land uses on the adjoining parcels to the east and west or
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 204 of 486 10 because of the limited land use nature of the project. Regarding the latter, Section 3.3 (Glossary) of the Specific Plan defines a limited use as a development that provides neighborhood serving amenities (including job- creation) along the corridor, but that does not meet all of the form -based standards of the MU -C Zone and may be considered a impermanent use of the land until it is redeveloped to its highest allowed density. Section 3.14.1 (Limited Uses in the MU-C Zone – Intent) of the Specific Plan states that in order to enable market forces to attract near -term reinvestment to the Mixed-Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and processes whereby limited quantities of lower intensity, more automobile- oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed-Use Corridor Zone through the Administrative Use Permit (AUP) or Conditional Use Permit (CUP) process. This Section further states that accordingly, four specific categories of Limited Uses are defined in this Section, including adaptive reuse of existing 1 and 2- story commerc ial and office buildings ,development of limited quantities of new buildings of those types, and development of blocks with lower Frontage Buildout percentages and larger quantities of street -adjacent surface parking that otherwise allowed. Therefore, the project is generally compliant or will be compliant with the application of conditions of approval and in those instances where the project is not compliant, there is a reasonable basis for the City Council to make a finding that this lack of compliance does not result in the project not being approvable.
17. Regarding Section 6.04.04.F.5, the Wendy’s drive- through restaurant is compatible with the design, location, size and operating characteristics of existing and reasonably foreseeable future land uses in the vicinity. The project site is located in a largely built out area of the Highway 111 Corridor that is currently dominated by auto-oriented land uses including but not limited to stand- alone and multi-tenant building retail orient ed businesses, office l and uses and personal service land uses. These land uses are primarily located in an established buildings and sites that are not currently planned for significant revitalization or redevelopment. The Wendy’s drive- through restaurant is consistent with the existing surrounding land uses and will not cause significant impacts to the operations of these land uses that would be considered excessive in nature.
18. Regarding Section 6.04.04.F.6 , the project site for the Wendy’s drive- through restaurant is an irreg ularly shaped parcel of land. Further, it has an existing cross - circulation drive aisle easement connecting to the adjacent parcels on the east and west that are physical constraints, but do not substantively inhibit the overall developability of the project site. The project has appropriate and compliant access from Highway 111, is served or can be served by public and private utilities and would not create excessive land use intensity that would be out of character with the existing surrounding commercial oriented land uses.
19. Pursuant to Section 3.6 of the Specific Plan, the standards of this this section shall apply to any parcel within the Master Planned Design Overlay in Figure 3.4- 1, or for
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 205 of 486 11 any proposed development greater than 4 acres in size. No new subdivision, building, street or other improvement shall be approved on such a parcel without a Planning Review (PR) Permit and an approved Master Planned Development (MPD) Permit, based on a determination of consistency with these standards. The project site is 0.96 of an acre in size and therefore, this Section is not applicable to the proposed project.
20. Pursuant to Section 3.6.A.2.a, all new development must complete and/or support — and in no way impede—the required connections and intersections that appear in their subarea. The project site is located in Subarea 14. Figure 3.6- 1 does not identify required and/or recommended connections through the project site. Pursuant to Section 3.6.B.1.b, required connections form links through and between subareas and are required to be multi -modal streets with vehicular access and shall be further be designed as Avenues (per Section 3.7.B.4.a) or Neighborhood Streets (per Section
3.7.B.4.c). Pursuant to Section 3.6.B.1.d, recommended connections are included as suggested ways to meet the Block Standards of Section 3.6.C, but their quantity and placement is flexible. Recommendations for how some of these connections can be implemented are included in Table 3.6- 2. However, because the Specific Plan does not specify required or recommended connections through any portion of the project site, this Section is not applicable to the proposed project.
21. Pursuant to Section 3.6.C.1/Table 3.6.3 (Maximum Block Size), the maximum block perimeter for the Mixed Use Corridor zone is 1,600 feet. Pursuant to Section 3.6.C.2.a, per Table 3.6- 1, all blocks shall be defined—or in other words: bound at their perimeter—by one or more of the following types of public connections or open spaces: Street, Carless Street, Plaza/Green, Neighborhood Park, or Mini Park.
Pursuant to Section 3.6.C.2.a.i, a block may be bound on no more than one (1) side by a Carless Street, Plaza/Green, Neighborhood Park, or Mini Park. Pursuant to Section 3.6.C.2.b, types which define a block shall be public and sh all not be private or semi -public. Pursuant to Section 3.6.C.2.b.i, “Public” means those spaces and connections that are publicly accessible—providing public right-of-way—regardless of ownership. The project site is located on an existing parcel of land that measures approximately 182.09 lineal feet wide along the site’s northern (Highway 111) perimeter, 355.08 lineal feet long along the site’s western perimeter, 244.65 lineal feet along the site’s eastern perimeter and 144.28 lineal feet along the site’s s outhern perimeter. Because of the project site’s limited size and associated dimensions, it complies with this Section.
22. Section 3.7 (Public Realm Standards) specifies standards for the public realm areas of the Highway 111 Corridor. The project site is comprised of private property that is located along an existing built portion of Highway 111. The applicant is not proposing nor is being required to make any substantive public realm improvements that would create a legal nexus for compliance to one or more standards in this Section.
Therefore, this Section is not applicable to the proposed project.
23. Section 3.8 (Building Placement and Access) and more specifically Section 3.8.B.1 specifies standards to ensure that proposed development within the Specific Plan area
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 206 of 486 12 promotes a pedestrian -friendly environment along the street by placing buildings at the front of the site and locating parking at the center or the back of the site. Table
3.8-1 (Building Placement) specifies building placement standards that are applicable to properties that are located within the Mixed- Use Corridor regulatory zone. This Table specifies that the Highway 111 build to range should be 0 feet to 15 feet, that the front street build out should be 100 percent, that there is no side stre et build to range, that the side street build out should be 80 percent for the first 40 feet with no buildout requirement after 40 feet, that the building length should be a maximum of 300 feet, and that there are no building setback requirements except for a 10- foot separation between multiple buildings on a single lot. Section 3.14 (Limited Land Uses in the MU -C Zone) and more specifically Section 3.14.A.3.1.c.iv specifies that the Frontage Buildout requirements listed in Table 3.8- 1 may be waived for provided buildings are in conformance with the requirements of the rest of this Section. The proposed building portion of the Wendy’s Drive-Through Restaurant does not comply with the specified 15- foot build to range that is the area within which the building should be constructed and is proposed to be setback approximately 52 feet. The project site is encumbered by existing cross circulation easements and driveways with the adjacent properties to the east and west that limit the ability to place a building within the specified build to range without significant disruption to existing cross - circulation patterns. Further, the irregularly shaped nature of the property limited the applicant’s ability to orient the building in an east to west orientation and place the building at or near the northern property line and still maintain the required cross - circulation patterns with the existing properties to the east and west. Therefore, there is a reasonable legal basis for excluding the building placement from the spec ified requirement. Because of the foregoing constraints on building placement, the proposed on-site building does not comply with the 100 percent front street build-out, however, as previously noted the requirement for maintenance of existing cross - circulation patterns do not allow for compliance to this standard and a legal exclusion from this standard is reasonable. There are no side streets adjacent to the project site so these specified standards are not applicable. The proposed building length is approximately 40 feet thereby complying with the maximum building length standard.
There are no other on- site buildings and therefore, the project site complies with the specified building setback requirements.
24. Section 3.8.B.2 specifies standards for Public Realm Extensions into project sites. The submitted site plan specifies a semi -diagonal pedestrian connection from Highway 111 into the site connecting to the building adjacent sidewalk sections and intersects the east-west cross-circulation drive aisle through the property and the drive-through aisle. Section 3.8.B.2.f specifies the following standards applicable to this connection:
i. Public Realm Extensions shall connect directly to the public sidewalk. Any necessary steps, ramps, and/or elevators to connect them shall be easy to locate and comfortable to use. Apart from steps and ramps, surfaces used by pedestrians shall be flat.
ii. Decorative and/or permeable pavement is encouraged. iii. Landscaping, pedestrian-scale lighting, and seating areas are encouraged.
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 207 of 486 13 iv. Public Realm Extensions may be enclosed from the public realm with landscaping, low walls, and/or fences, provided that entrances are provided. v. On-site driving and parking areas shall either be designed as shared, multi -use spaces or be kept separate with strategic siting of buildings and/or landscaping.
25. The submitted site plan does not specify the design characteristics of the proposed pedestrian connection. However, Section 3.14.C.3.b.iii specifies that a clearly marked pedestrian walkway shall be provided and shall be designed as a crosswalk including signage and cues such as striping or material changes. The originally submitted plans were unclear as to whether decorative and/or permeable pavement for this pedestrian connected will be installed. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted an updated site plan a raised pedestrian crossing comprised of stamped concrete measuring six (6) feet wide and ½ foot high.
The applicant shall be required via a condition of approval to construct the raised pedestrian crossing in conformance with the approved site plan comprised of stamped concrete measuring six (6) feet wide and one half of a foot high prior to the issuance of a certificate of occupancy.
26. The project is a limited land use drive-through restaurant that has not been designed to incorporate enclosed public realm extensions that due to the irregular nature of the parcel, cross-circulation constraints and the auto-oriented nature of the development would be infeasible. The on- site driving and parking areas have been designed to separate on-site parking from drive-through functional areas within the site constraints imposed by the irregular nature of the parcel and the need to maintain cross - circulation between and with adjacent properties.
27. Section 3.9 (Building Height) of the Specific Plan specifies standards for building height and vertical proportions that apply to all new buildings within the boundaries of the Specific Plan. For properties zoned Mixed Use Corridor, Table 3.9-1 specifies that the minimum building height is 3 stories. The submitted elevation drawings for the proposed on-site building specify that the primary building elevation will be 21.5 feet in height that is 8.5 feet less than the specified 3 stories standard and as such, does not comply with the specified minimum building height standard. Section 3.14 (Limited Land Uses) and more specifically Section 3.14.1 specifies that “In order to enable market forces to attract near-term reinvestment to the Mixed-Use Corridor Zone - while also ensuring that over time the vision for that Zone is realized - this Section provides standards and processes whereby limited quantities of lower intensity, more automobile-oriented projects that positively contribute to the economic development and quality of life within a Subarea - defined herein as “Limited Uses” - may be approved in the Mixed- Use Corridor Zone through the Administrative Use Permit (AUP) or Conditional Use Permit (CUP) process. Accordingly, four specific categories of Limited Uses are defined in this Section, including adaptive reuse of existing 1 and 2-story commercial and office buildings, development of limited quantities of new buildings of those types, and development of bloc ks with lower Frontage Buildout percentages and larger quantities of street -adjacent surface parking that otherwise allowed.” The proposed Wendy’s Drive-Through Restaurant project is categorized as
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 208 of 486 14 a limited land use and more specifically under the category of “development of limited quantities of new buildings of those types”. Therefore, because of its limited land use status, the approximately 2 stories height of the proposed building is acceptable.
28. Section 3.10 (Facades and Frontages) of the Specific P lan specifies standards to ensure that large-scale (“block-form”) buildings, are modulated into smaller “human- scale” increments and composition to generate more dynamic and interesting streetscapes and result in more resilient buildings that are adaptable over time to meet the varied needs of different tenants and uses. Section 3.10.A specifies building massing standards for buildings that are longer than 100 feet in length in the Mixed- Use Corridor. The proposed on-site building measures approximately 40-feet in length and therefore Section 3.10.A is not applicable to the proposed building.
29. Section 3.10.B (Façade Design) is intended to generate active, attractive and human- scaled façade compositions based on timeless building. The submitted building elevations propose a combination of horizontal and vertical elements, all of which comply with the façade composition standards specified in Section 3.10.B.2 for a single-use structure.
30. Section 3.10.B.3 specify façade fenestration standards that are applicable to the proposed project. Section 3.10.B.3.a.i specifies that facades shall be designed to incorporate fenestration (windows and doors) per the amounts specified in Table 3.10- 2 that for properties with the Mixed Use Corridor designation requires 70 perc ent to 95 façade fenestration. The proposed northern southern, western and eastern building elevation facades do not appear to meet the façade fenestration requirement. The proposed west building elevation has an overall length of 88’ -6” with 27’ -6” of fenestrations with clear glass that is 31.25% of the length of the façade. The fenestration on this elevation is limited to the dining room area at the front of the building while restrooms, dry storage, scullery, and walk in cooler and freezers are located at the rear portion of the building and would not typically have fenestrations.
The north building elevation or the front elevation is 37’ -0” wide and has 19’ -9” of fenestrations with clear glass that is 53.38% of the façade length. The portion of this elevation that is not glazed is the red blade element that provides a contrast of materials in this façade. The south building elevation or the rear elevation is 38’ -2” wide, with 1’-1” of glass or 4.8% of the façade. This elevation is not visible to the street and electrical utilities, grease waste storage, co2, dry storage and walk in cooler and freezer are located adjacent to this elevation. The east elevation has an overall length of 89’-4” with 34’-4” of fenestrations with clear glass that is 38.43% of the length of the façade. The fenestration on this elevation is in the dining room area. In addition, the openings at the two drive thru windows have been expanded to provide additional fenestration with clear glass on this façade. The main cooking line and storage occupy the rest of the façade area. Section 3.14.B.1.f.iii specifies that for limited land use facades over 100 feet in width that they are subject to the Façade Standards in Section
3.10.A.3. All of the façade elevations for the Wendy’s drive-through restaurant that is considered a limited land use pursuant to applicable provisions of the Specific Plan
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 209 of 486 15 are less than 100 feet in width and therefore are not subject to the specified façade fenestration standards.
31. Section 3.10.3.b specifies the following standards:
i. Except for shopfront or bay windows, all glass shall be set back a minimum of four (4) inches back from the façade plane.
ii. Windows shall have an external reflectance of less than 15%, and a transparency higher than 80%. Opaque windows are prohibited.
iii. Non-operable shutters—known as ‘faux shutters’—are prohibited. iv. The horizontal distance between wall openings shall not exceed 15 feet within a façade or massing increment.
32. The project plans specify that glass storefront sections set back four (4) feet from façade elevation walls for compliance to Section 3.10.3.b.i of the Highway 111 Corridor Specific Plan. A condition of approval demonstrating compliance to Section
3.10.3.b.i prior to issuance of a building permit shall be specified to ensure compliance. The applicant has specified that compliance to Section 3.10.3.b.ii will be demonstrated on Elevation Sheets A2.1, A2.2 and A2.3. A condition of approval demonstrating compliance to Section 3.10.3.b.ii prior to issuance of a building permit shall be specified to ensure compliance. The applicant has specified that non-operable shutters or faux shutters shall be prohibited for compliance to Section 3.10.3.b.iii . A condition of approval demonstrating compliance to Section 3.10.3.b.iii prior to issuance of a building permit shall be specified to ensure compliance. The applicant has specified that the horizontal distance between wall openings at the storefront at the front of the building is not separated by more than 15 feet for compliance to Section
3.10.b.iv.
33. Section 3.10.4 (Façade Materials) specifies the following standards:
a. Fiberglass or plastic (false) architectural elements or ornamentations are prohibited.
b. Materials used on shopfronts shall be smooth and non-abrasive to touch. c. Rough-cast and sand -finishes are prohibited on all building surfaces that are visible from a street.
d. Where more than one material is used for the façade, the heavier material shall be used below the lighter material (e.g. brick below siding, not vice versa). e. Modulations, color schemes, balconies, and other façade elements shall be consistent within an individual façade or within an individual Building Increment, when required per Section 3.10.A.2.
34. The applicant submitted a digital materials board that does not show fiberglass or plastic architectural elements. The materials board specifies that materials are proposed to be smooth and non- abrasive. The materials board does not indicate roughcast or sand-finishes. The materials board indicates the use of more than one materials and that the heavier materials are used below the lighter materials. In order to assure on-going compliance to Section 3.10.4.a -e a general condition of approval demonstrating on-going compliance to Section 3.10.4.a-e is warranted.
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 210 of 486 16 35. Section 3.10.C (Frontages) address the space between the travel lanes of a street and the building, and including the building’s ground floor façade and is applicable to any new building, façade renovation, or building addition along a street or public open space in the Corridor Specific Plan area with minor exceptions to the standards herein allowed for Limited Uses, as defined in Section 3.14. As previously noted, the proposed fast food or quick serv ice restaurant is considered a limited land use pursuant to Section 3.14 of the Specific Plan. As such,
36. Section 3.10.D.3 specifies that all building entry and projecting architectural elements shall comply with the following requirements:
a. Materials, style, and design shall be consistent with the architecture of the building. b. Deep eaves, balconies, bay windows, and projected rooms of traditionally styled buildings shall have visible supports in the form of projecting beams or braces.
Balconies on contemporary styled buildings shall not be required to have beams or braces.
c. Landscaping shall be appropriate to the architecture and scale of the building.
37. The submitted plan documents demonstrate compliance to Section 3.10.D.3.a and c as the materials, style and design of the building entry is consistent with the proposed architecture of the building and the proposed landscaping is appropriate to the architecture and scale of the building. Section 3.10.D.3.b is not applicable to the proposed use and design of the on-site building.
38. Section 3.10.D (Building Entry and Projecting Architectural Elements) and more specifically Section 3.10.D.2 specifies that new building designs shall include at least one (1) of the Required Building Entry Elements identifie d in Table 3.10- 6. Section
3.10.D.4 specifies that all buildings shall provide entry via one of the following Building Entry Elements: Porch, Dooryard, Terrace, Stoop, Lobby Entry or Shopfront, as allowed by zone in Table 3.10-6 and that additional standards for each of these types are provided in subsections 3.10.D.4.a-f.
39. Section 3.11 (Private Signage) of the Specific plan specifies standards for private signage that is applicable to all new signs including on new buildings and renovations or additions to existing buildings. The submitted building elevation drawings specify conceptual wall -mounted signage for the northern, eastern and western building elevations. There is no information provided on whether the proposed project intends to have on-site freestanding signage and there is no information on whether there will be on-site directional or menu board signage. As such, compliance to Section 3.11 cannot be determined at this time. Therefore, a condition of approval is needed requiring demonstration of compliance to Section 3.11 for any and all wall -mounted, freestanding, menu and directional signage.
40. Section 3.12 (Parking) of the Specific Plan specifies standards for surface parking and structured parking including the number of parking spaces and parking design
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 211 of 486 17 standards. Section 3.12.2.b specifies that compliance with the standards of Section
3.12 is not required when one or more of the following exists:
b. Compliance with these standards is not required in the following instances:
i. a change of use within an existing building; or
ii. an expansion of an existing building that does not result in an increase in floor area by more than 25 percent; or
iii. a replacement of an existing building that does not result in an increase in floor area by more than 25 percent.
41. The project proposes to replace two existing buildings total 11,872 square feet in size that is currently served by 41 existing surface parking spaces. The proposed new building will be approximately 3,083 square feet in size and will have 33 on-site parking spaces. As such, the proposed project qualifies for consideration pursuant to Section
3.12.2.b.iii and does not have to demonstrate compliance to Section 3.12.
42. Section 3.13 (Site Design) specifies standards for the design and location of various site design elements for the purpose of the health, safety, and general welfare of the immediate occupants of each building, and for the neighborhood. This section addresses utility access and equipment, mechanical and electrical equipment, telecommunication devices, wet utilities, service entrances and waste disposal areas, fence and wall heights, entrance arbors, lighting, landscaping, stormwater and open space.
43. Section 3.13.B.1.a specifies that utility access and equipment such as back -flow preventers, transformer boxes, gas and electric meters, and other utilities shall be placed within or adjacent to and be accessed from the alley, subject to the requirements and approval of the associated utility company. This Section further specifies that on lots with no alley, meters and similar equipment shall be located in underground vaults or in utility rooms/closets within buildings, were possible and that if such locations are infeasible, these services shall be located in inconspicuous locations along the sides of project sites and shall be thoroughly screened from public view. The submitted site plan specifies an on- ground transformer adjacent to the southern building elevation of the proposed on-site building. The submitted landscape plan specifies a combination of groundcover and shrub plantings planted around the transformer, however, these plantings do not appear to thoroughly screen the transformer from public view. Therefore, a condition of approval requiring evidence on the final landscape plan submitted for administrative review and approval prior to building permit issuance of thorough screening is required.
44. Section 3.13.B.2.a-c specifies the following: a) all mechanical and electrical equipment – including, but not limited to, air-conditioning units, antennas, garage door motors – whether roof-mounted, ground-mounted or otherwise, shall be screened from public view or located so as not to be visible from streets or open spaces. Such equipment and related screening shall be designed with materials and colors that conform to and are an integral part of the design of the building; b) mechanical equipment that generates noise, smoke or odors, shall not be located on or within 10 feet of a public
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 212 of 486 18 right of way or any on- site common open spaces; and c) noise- and odor-generating equipment and containers shall be located in areas that will not create a nuisance to adjacent properties. The applicant has specified that roof top equipment will be screened by parapet walls as specified on Sheets A3.1 and A3.2. The applicant further specifies that electrical switchgear has been located behind the building to screen it from view and will also be surrounded by landscaping and that this switch gear will be located in a closet and will not be visible. The applicant specifies that the location of water and/or gas meters are not currently known at this time. Therefore, a condition of approval requiring evidence on the final landscape plan submitted for administrative review and approval of thorough screening on- site water and/ or gas meters to demonstrate compliance to Section 3.13.B.2.a shall be required prior to the issuance of a building permit.
45. Regarding Section 3.13.B.2.a, the submitted plan documents did not originally specify whether site related mechanical or electric al equipment will be roof -mounted or ground-mounted and how this equipment would be screened from public view or located so as not to be visible from streets or open spaces and further did not specify how the equipment and screening will be designed with materials and colors that conform to and are an integral par t of the design of the building. The applicant subsequently clarified that site related mechanical equipment will be roof -mounted and will be screened by parapet walls. Prior to certificate of occupancy, the applicant shall completely screen meaning not visible from Highway 111 or adjacent properties on the east, west and south on all sides via roof parapet walls or similar treatment all roof-mounted mechanical equipment. The applicant further clarified that electrical switchgear will be located behind the building to screen it from view, will also be surrounded by landscaping and will be located in an accessible closet. Prior to certificate of occupancy, the applicant shall enclose all electrical switchgear within an accessible closet space that will be further screened by landscaping as specified on the approved final landscape plan. The applicant has advised that the location of water and gas meters is not currently known, but that their installed location will be screened from public view with on- site landscaping. Prior to certificate of occupancy, the applicant shall effectively screen from public view water and gas meters with landscaping specified on the approved final landscape plan.
46. Regarding Section 3.13.B.2.b, the submitted plan documents did not originally provide any information as to whether mechanical equipment that generates noise, smoke or odors would be located on or within 10 feet of a public right of way or any on- site common open spaces. The applicant subsequently clarified that on -site mechanical equipment that generates noise, smoke, or odors is located in the roof well and is more than 10 feet from the property lines as the building is located a minimum of about 34 feet from the property line. Therefore, compliance to this Section is satisfied.
47. Regarding Section 3.13.B.2.c, the applicant did not originally specify whether noise and odor-generating equipment and containers would be located in areas that would not create a nuisance to adjacent properties except that the submitted plan documents did specify a separate trash enclosure area located southwest of the proposed on-site
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 213 of 486 19 building. The applicant has further specified that the trash enclosure has been shifted back in the site so that the building screens it from the street and that trash enclosure drawings will be provided that show a decorative roof, a steel frame with decorative mesh installed between the top of the wall and the roof structure to allow for air flow, and metal gates to screen the dumpsters from view that will prevent people and animals from unauthorized entrance. Prior to the issuance of a certificate of occupancy, the applicant shall submit for building and planning review and approval trash enclosure plan documents demonstrating compliance to Section 3.13.B.2.c of the Highway 111 Corridor Specific Plan with said plans demonstrating at a minimum the provision of a decorativ e roof, a steel frame with decorative mesh installed between the top of the wall and the roof structure to allow for air flow, and metal gates to screen the dumpsters from view that will prevent people and animals from unauthorized entrance.
48. Section 3.13. C (Grading & Site Walls) and more specifically Section 3.13.C.1- 5 specifies standards for fences and walls. The submitted site plan specifies a screen wall along the property’s eastern property line that extends partially into the curved drive-through aisle. The submitted plans do not specify adequate detailed information to determine conformance to Section 3.13.C. The applicant on the record during the Planning Commission public hearings stated that this screen wall would be extended to the southern edge of the on- site pedestrian crossing from Highway 111 into the project site. Therefore, a condition of approval requiring the physical construction extension of the planned 36- inch high screen wall with an exterior plaster finish and stone cap to screen the on-site drive-through aisle to the southern edge of the on-site pedestrian crossing from Highway 111 into the project site for compliance to Section
3.13.C of the Highway 111 Corridor Specific Plan shall be required prior to the issuance of the certificate of occupancy.
49. Section 3.13.D (Lighting) specifies the following standards:
1. General to All
a. Site lighting shall be shielded by permanent attachments to light fixtures so that light sources are not visible from a public way and to prevent off-site glare. b. Specific to residential ground floors: site and building -mounted luminair es shall produce initial illuminance value no greater than 0.04 horizontal and vertical foot candles.
c. Specific to nonresidential ground floors: site and building-mounted luminaires shall produce a maximum initial illuminance value no greater than 0.1 horizontal and vertical foot candles at the boundary with adjoining residential lots, and no greater than 0.01 horizontal foot candles 10 feet beyond that boundary.
2. Lighting Abutting the Public Realm. Lighting within surface parking lots, private frontages, and any other on- site open space that abuts a public right of way shall comply with the following standards:
a. Lighting shall be shielded by permanent attachments to fixtures so that light sources are not visible from adjacent properties or the public right of way. b. No freestanding fixture shall exceed a height of 15 feet as measured from finished adjacent grade.
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Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 214 of 486 20 c. Light sources shall have a maximum output of no greater than 3,00 lumens. d. Required illuminance (in foot candles)
i. Max: 4.0
ii. Min: 0.2
iii. Max average: 0.8
iv. Uniformity ratio (max/min): 20/1
v. Uniformity ratio (average/min): 4/1
50. The applicant submitted a photometric lighting plan that partiall y addresses Section
3.13.D.1-2 that was supplemented by the applicant following the culmination of the Planning Commission’s public hearing process. The applicant specified in the supplemental written and plan information the following: a) shielding methods of light fixtures: images of the fixtures to illustrate a flat lens with only downward light direction (similar to what is shown on the specific plan) were added to E1.3. The light fixture cut sheets were also added to E1.6 to also illustrate this; b) freestanding fixture height:
the light pole elevation/detail is shown on sheet E1.1. This indicates the fixture height.
The height is also specified on the fixture images on sheet E1.3 and the cut sheets on sheet E1.6. The fixture height is 15’-0”; c) foot candle readings: the light fixtures were reselected and relocated to achieve Specific Plan requirements. The general drive and parking area statistics have been added to sheet E1.2, and new sheets E1.4 & E1.5 were added for the readings at the property line, which do not exceed 0.8 FC; and d) light source lumen output - the lumen output for each fixture has been specified on the light fixture cut sheets on sheet E1.6. They do not exceed 3,000 lumens. A condition of approval specifying the submittal prior to building permit issuance for administrative review and approval of a final photometr ic lighting plan demonstrating compliance to Section 3.13.D.1-2 of the Highway 111 Corridor Specific Plan shall be required. Further, a condition of approval specifying the installation of all on- site lighting poles fixtures and lumens in compliance with t he approved final photometric lighting plan prior to the issuance of a certificate of occupancy shall be required.
51. Section 3.13.E.1 specifies the following standards:
a. Where front yards are landscaped, individual paths to the sidewalk shall be provided for each entrance.
b. Allowed species. Trees and Plant material shall be native to the Sonoran Desert, or adaptive from regions with similar arid climates (such as the Mojave Desert). c. Invasive species. Invasive plant species shall be prohibited. d. Desert-adapted plants. All plants shall be water -conserving, drought -tolerant plants.
e. Green screens. Landscape shall be used to soften walls and fences and provide green screens, where appropriate, between residential and nonresidential buildings. f. Climate mitigation. Trees, shrubs, hedges, and deciduous vines are encouraged to be used to minimize solar heat gain during the summer and maximize heat gain during the winter.
g. Crime Prevention through Environmental Design (CPTED). All landscape plan s shall be reviewed by a CPTED-qualified member of the Indio Police Department.
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 215 of 486 21 The applicant’s submitted landscape plan demonstrates compliance to applicable portions of Section 3.13.E.1. However, the applicant shall submit a final landscape plan inclusive of an irrigation plan for on-site landscaping for administrative review and approval prior to the issuance of a building permit that addresses conformity to Section
3.13.E.1, as applicable and that is subject to review by a CPTED-qualified member of the Indio Police Department.
52. Section 3.13.E.2 specifies the following standards:
i. Stair treads. Exterior stair risers and treads shall be constructed of durable and permanent materials and in a manner that is consistent with the design of the rest of the building.
ii. No grass/turf shall be allowed; only desert -appropriate landscaping shall be allowed.
iii. Paving materials should be decorative and complementary to the main building design.
iv. Where hardscape is used, permeability shall be incorporated into the design. i. New landscapes shall comply with state and City requirements for Water Efficient Landscapes.
j. Irrigation. Permanent and automatic irrigation systems shall be provided for all landscaped areas per the City’s Water Efficient Landscaping Ordinance.
53. Regarding Section 3.13.E.2.i, the proposed project does not propose any stair treads.
54. Regarding Section 3.13.E.2.ii, the applicant’s submitted landscape plan does not indicate the installation of grass or turf and indicates desert appropriate landscaping.
However, to ensure compliance to this standard, a condition of approval demonstrating compliance to Section 3.13.E.2.ii is warranted.
55. Section 3.13.F (Stormwater) specifies the following:
1. General to All
a. Ground water recharging and stormwater runoff limits shall be facilitated on all parts of new building sites. See NACTO’s Urban Stre et Stormwater Guide and the Light Imprint Handbook, by Thomas E. Low; Possible strategies include:
i. Rain gardens and vegetated bioswales that convey and infiltrate rainwater. ii. Pervious pavement that allows stormwater to infiltrate directly into the gr ound below.
b. Stormwater management shall be provided through a system that is integral to streetscapes (swales within medians or parkways) and/or open space(s) in the development. These areas shall double as visual features and be accessible to the public.
56. The applicant has not provided detailed information demonstrating compliance to Section 3.13.F (Stormwater). Therefore, a condition of approval requiring that Section
3.13.F (Stormwater) of the Highway 111 Corridor Specific Plan be addressed as part of the required Water Quality Management Plan review process managed by the City’s Engineering Division prior to the issuance of a grading permit is warranted.
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 216 of 486 22 57. Section 3.14 (Limited Uses in the MU -C Zone) specifies standards for Limited Land Uses within the boundaries of the Specific Plan. Section 3.14.2.a- i address applicability of the standards in this Section including but not limited to applying only to properties in the Mixed Use Corridor zone, limited land uses consisting of freestanding single- use (pad) commercial buildings with and without drive- through service facilities, office/light industrial buildings, adaptive re- use of existing commercial/industrial buildings and parking lots that occupy greater percentages of one or more street frontages th an prescribed by the standards of Sections 3.8 and
3.12. The standards of this section do not exempt a proposed development from the Subdivision & Public Realm Network Completion standards of Section 3.6. Also, the standards in this section do not exempt a proposed development from the location- specific commercial-use requirements of the MU -C Zone. The Illustrative Site Plan specifies potential limited land uses within the MU -C zone portion of the project site.
As such, the review and approval for these uses will be subject to future compliance with applicable provisions of Section 3.14 and will be subject to both Planning Commission and City Council review and approval.
58. Section 3.14.B.1 specifies standards that are applicable to all limited land uses comprised of:
a. Building Use. Specific land uses allowed for “Limited Uses” in the MU-C Zones are listed in Section 3.5, along with the planning permit type required for approval of each use. Any use not listed in this section shall be considered “Not Permitted.” b. Locations. Concentrations of commercial uses should be at the same node locations specified in the General Standards for the Mixed-use Corridor Zone. c. Building Placement
i. Buildings shall be oriented toward the sidewalk, meaning that the primary entrance (and/or a walk-up service window) is provided directly from the sidewalk. ii. Building facades shall be located parallel to and near the frontage sidewalk to promote visibility and pedestrian access into businesses and to help provide spatial definition of the public realm.
iii. If located on a corner lot, the building shall be located at the corner, fronting both streets.
iv. The Frontage Buildout requirements listed in Table 3.8- 1 may be waived for provided buildings are in conformance with the requirements of the rest of this Section. d. Access
i. Simple and direct pedestrian access to the main building entrance from the sidewalk must be provided. The main entrance shall not be located on a façade facing opposite the Corridor and must be located to face Highway 111 or a pedestrian- oriented open space that is open to and directly accessible from Highway 111. ii. Secondary pedestrian access to the building may be provided from adjacent parking lots.
iii. The walkway leading from the sidewalk to th e main entrance shall be wide and welcoming, per the Public Frontage Standards of Section 3.7.C.4. iv. Setback areas shall be designed per the on- site sidewalks, landscaping, and lighting standards of Section 3.13, Site Standards and Guidelines.
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 217 of 486 23 e. Building Height. Building height: 16’ minimum (to eaves). f. Building Massing, Frontage, and Facades
i. The architecture of the building shall provide large openings that clearly convey that the façade facing the street - particularly facades facing 111 - is the front of the building, regardless of where the main building entry is located. ii. For Façade fenestration requirements see Section 3.10.B.3. iii. Facades over 100’ in width are subject to the Façade Standards in Section
3.10.A.3.
g. Parking & Circulation
i. The visual impact of surface parking shall be mitigated to maintain the desired street character (see UDC Chapter 3.03, Parking Standards). ii. Surface parking shall generally be located behind the building and screened by the building mass, low walls, pergolas, and/or landscaping. iii. A limited amount of on -site parking is permissible along the side of the building, adjacent to the front sidewalk along 111 as a Parking Court (see Section 3.11.D.3.a.), but is prohibited from being located between the building and the Corridor sidewalk, per UDC Chapter 3.03, Parking Standards.
iv. Vehicular entrances to the site shall be located as far as practical from street intersections to allow adequate stacking room.
v. Vehicular entrance curb cuts shall be limited to one per adjacent street, and wherever possible should be located on common property lines to provide access from one driveway to at least two properties.
vi. To further reduce traffic congestion and parking demand, sidewalks for comfortable pedestrian access shall be provided between adjacent buildings and properties. And wherever feasible, reciprocal vehicular access between adjacent parking areas shall also be provided.
59. Regarding Section 3.14.B.1.a, the project is identified as a limited land use and is subject to conditional use permit approval from the City Council as well as concurrent Planning Review approval from the City Council. Regarding Section 3.14.B.1.b, the project proposes to replace vacant commercial buildings in a built up area of the Corridor.
60. Regarding Section 3.14.B.1.c.i, the submitted plans specify two door accesses located on the northern building elevation and the western building elevation, however, the primary and secondary statuses of these doors were not originally specified. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted updated elevation drawings demonstrating the primary door entrance into the building will be located on the northern building elevation as it most directl y connects to the existing public sidewalk on Highway 111 and to the raised on- site pedestrian crossing extending through the site from Highway 111.
61. Regarding Section 3.14.B.1.c.ii, the project’s building façade is not located parallel to and near the frontage sidewalk and is instead perpendicular to the frontage sidewalk and is situated approximately 52 feet back from this sidewalk. As previously noted, the building orientation is a result of the irregular shape of the subject parcel of land
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 218 of 486 24 and the buil ding setback is due to the need to maintain existing cross -circulation easements with existing built properties east and west of the subject property. This cross-circulation pattern cannot be relocated due to the existing placements of on-site buildings on these adjacent properties.
62. Regarding Section 3.14.B.1.c.iii, the subject property is not a corner lot and as such, this Section is not applicable to the proposed project. Regarding Section 3.14.B.1.c.iv, the lack of conformity to Table 3.8- 1 has been previously addressed relative to the irregular shape of the subject parcel of land and the need to maintain cross-circulation easements. Therefore, a condition of approval requiring conformity with applicable portions of Section 3.14.B.1 is warranted in order to allow for the waiving of the frontage buildout requirements specified in Table 3.8-1.
63. Regarding Section 3.14.B.1.d.i, the submitted plans specify two door accesses located on the northern building elevation and the western building elevation, however, the main and non- main statuses of these entrances are not specified.
Following the conclusion of the Planning Commission’s review of the project, the applicant submitted updated elevation drawings demonstrating the primary door entrance into the building will be located on the northern building elevation as it most directly connects to the existing public sidewalk on Highway 111 and to the raised on- site pedestrian crossing extending through the site from Highway 111.
64. Regarding Section 3.14.B.1.d.ii, the submitted plans specify two door accesses located on the northern building elevation and the western building elevation, however, the main and secondary statuses of these entrances were not originally specified. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted updated elevation drawings demonstrating the primary door entrance into the building will be located on the northern building elevation as it most directly connects to the existing public sidewalk on Highway 111 and to the raised on-site pedestrian crossing extending through the site from Highway 111.
65. Regarding Section 3.14.B.1.d.iii, the submitted plans specify a pedestrian connection from Highway 111 onto the s ubject property crossing the cross -circulation drive and also the drive- through lane before connecting to the building adjacent on- site sidewalk. Following the conclusion of the Planning Commission’s review of the project, the applicant submitted an updated site plan a raised pedestrian crossing comprised of stamped concrete measuring six (6) feet wide and ½ foot high. The applicant shall be required via a condition of approval to construct the raised pedestrian crossing in conformance with the approved sit e plan comprised of stamped concrete measuring six (6) feet wide and one half of a foot high prior to the issuance of a certificate of occupancy.
66. Regarding Section 3.14.B.1.d.iv, the proposed on- site setback areas have been designed in accordance with applicable provisions of Section 3.13, Site Standards and Guidelines.
AGENDA ITEM #10.1
Resolution No. 10360, conditionally approving the Wendy's Drive-Through ... Page 219 of 486 25 67. Regarding Section 3.14.B.1.e, the proposed building height is 21.5 feet that exceeds the minimum 16- foot height standard and as such, the project complies with this Section.
68. Regarding Section 3.14.B.1.f.i, the northern building elevation facing Highway 111 has windows and a door indicating that this is the front of the building and as such, the project complies with Section 3.14.B.1.f.i.
69. Regarding Section 3.14.B.1.f.ii, the project was previously analyzed for compliance to Section 3.10.B.3 and appropriate conditions of approval to address this compliance have been recommended. Regarding Section 3.14.B.1.f.iii, there is one (1) on- site structure that has a façade length of 40 feet and as such, this Section is not applicable to the proposed project.
70. Regarding Section 3.14.B.1.g.i, the project proposes on- site surface parking located along with the western portion of the property and west of the proposed on- site building. The location of the surface parking is necessary due to the irregularly shaped nature of the parcel and the need to accommodate the on- site building and its associated drive- through component. The submitted landscape plan specifies a limited amount of desert appropriate landscaping within the proposed on-site parking area.
71. Regarding Section 3.14.B.1.g.ii, the proposed on-site surface parking area is located along with the western portion of the property and west of the proposed on- site building and not behind the buildi ng. The originally submitted landscape plan did not demonstrate the effective screening of this surface parking such that compliance to Section 3.14.B.1.g.ii c ould be determined. However, as part of the Planning Commission’s continued public hearing process, the applicant submitted an updated landscape plan that specified the intent to plant additional canopy trees to address this Section that demonstrates compliance to it.
72. Regarding Section 3.14.B.1.g.iii, there is no on- site parking proposed between the building and the Corridor sidewalk and as such, the project complies with this Section.
73. Regarding Section 3.14.B.1.g.iv, there is one vehicle entrance proposed for the sit e.
This entrance is located approximately 500 lineal feet east of the Highway 111 and Dr. Carreon Boulevard intersection and approximately 1,000 lineal feet west of the Highway 111 and Las Palmas Road intersection and as such, the project complies with this Section.
74. Regarding Section 3.14.B.1.g.v, the project proposes to utilize the existing vehicle entrance curb cut onto Highway 111 that is also utilized by the property to the immediate east and as such, the project complies with this Section. Regarding Section
3.14.B.1.g.vi, the existing sidewalk on Highway 111 provides pedestrian access between the subject property and the properties immediately west and east of this