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The City Council of the City of Indio finds that the project’s significant environmental impacts are acceptable when balanced with the project’s benefits. Each of the benefits cited below (1-9) constitutes a separate and independent basis that justifies approval of the project and outweighs the unavoidable adverse environmental effects of approving the project and thus make the adverse environmental effects acceptable. Thus, even in the absence of one or more of the reasons set forth below, the City has determined that each remaining reason, or any combination of reasons, is a sufficient basis for approving the project, notwithstanding any significant and unavoidable impacts that may occur.
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ORDINANCE NO. 1846
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF INDIO, CALIFORNIA, APPROVING ZONE MAP
AMENDMENT ZMA-23-0001 FOR THE OASIS AT INDIO
PROJECT
WHEREAS, on December 20, 2023, an application was filed on behalf of BH Indio Land, LLC to amend the zoning map for approximately 183 acres north of Interstate 10, south of Avenue 42, east of the Thousand Palms Stormwater Channel, and west of Monroe Street, from Regional Commercial (RC), Mixed Use Neighborhood (MUN), and Mixed Use Specific Plan (MU-SP) to Mixed Use Specific Plan (MU-SP), as specifically shown in Exhibit A; and
WHEREAS, the City determined that the Project could have significant environmental effects and prepared an Environmental Impact Report under the California Environmental Quality Act (“CEQA”); and
WHEREAS, the EIR concluded that most of the environmental impacts of the Project could be mitigated to a less than significant level except impacts on Air Quality and Greenhouse Gases; and
WHEREAS, on May 27, 2026, and June 10, 2026, the Planning Commission held public hearings, considered the Project and environmental materials, and recommended denial; the City Council has independently considered that advisory recommendation and the evidence supporting and opposing the Project; and WHEREAS, on September 16, 2026, the City Council held a duly noticed public hearing on Zone Map Amendment ZMA-23-0001, considered the staff report, environmental materials and testimony, and concluded its proceedings; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA, HEREBY ORDAINS AS FOLLOWS:
Section 1. Environmental Determination. Before approving the Project, the City Council adopted Resolution No. [EIR RESOLUTION NUMBER], certifying the Final Environmental Impact Report for the Oasis at Indio Project (State Clearinghouse No. 2024050578), making the required CEQA findings, adopting a Statement of Overriding Considerations for the significant and unavoidable impacts, and adopting the Mitigation Monitoring and Reporting Program (“MMRP”). That resolution and its exhibits are incorporated herein. All applicable mitigation measures are binding conditions of this approval and shall be implemented at the times specified in the MMRP.
Section 2. Zone Map Amendment Findings. The Council approves ZMA-23-0001 based on the following findings:
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(a) The amendment places the Project site within the Mixed Use Specific Plan district and subjects it to the Oasis at Indio Specific Plan. The zoning map and Specific Plan together establish the site’s authorized uses, intensities, development standards, review procedures, and implementation requirements.
(b) The amendment is consistent with the General Plan as amended concurrently with this Resolution because it implements the Specific Plan land use designation and the coordinated development of the Avenue 42 Corridor. The applicable Specific Plan standards integrate residential and commercial uses, employment areas, circulation, open space and infrastructure. (c) The amendment promotes public health, safety and welfare through an adopted framework governing development, access, utilities, design, and mitigation.
The finding takes account of the significant and unavoidable environmental effects accepted in the separate CEQA resolution and does not imply that all impacts have been eliminated.
Section 3. Amendment of Official Zoning Map. The official City zoning map is amended for the property delineated in Exhibit A to designate the property Mixed Use Specific Plan (MU-SP), governed by the Oasis at Indio Specific Plan as adopted by Ordinance. Exhibit A is incorporated herein. The Community Development Director shall make the conforming ministerial update to the official zoning map. This ordinance changes no property outside the boundary shown in Exhibit A.
Section 4. Publication and Effective Date. The City Clerk shall certify adoption of this ordinance and cause its publication in accordance with state law. This ordinance takes effect 30 days after adoption, subject to applicable referendum law. The zoning amendment becomes operative concurrently with the Oasis at Indio Specific Plan and the related General Plan amendments, the existing zoning remains operative until those coordinated amendments are operative.
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ORDINANCE NO. 1846
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF INDIO, CALIFORNIA, APPROVING ZONE MAP
AMENDMENT ZMA-23-0001 FOR THE OASIS AT INDIO
PROJECT
INTRODUCED at a regular meeting on September 16, 2026, and PASSED, APPROVED, AND ADOPTED at a regular or adjourned regular meeting on October 7, 2026, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_______________________
ELAINE HOLMES, MAYOR
ATTEST:
______________________
SABDI SANCHEZ, DIRECTOR OF CITY CLERK SERVICES
Exhibit A — Zone Map Amendment ZMA-23-0001
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ORDINANCE NO. 1847
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF INDIO, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT DA-23-0001 BETWEEN THE CITY AND BH
INDIO LAND, LLC, FOR THE OASIS AT INDIO PROJECT
WHEREAS, the City of Indio (“City”) is a general law city; and WHEREAS, the Oasis at Indio is a comprehensive mixed-use development Project, encompassing approximately 183 acres located north of Interstate 10, south of Avenue 42, east of the Thousand Palms Stormwater Channel and west of Monroe Street (“Project”); and
WHEREAS, the Project applications include General Plan Amendments GP-23-0001 and GP-26-0005, Zone Map Amendment ZMA-23-0001, Specific Plan SP-23-0001, Financing Tentative Parcel Map No. 38799 (PLAN-TPM-23-0001), Development Agreement DA-23-0001, and environmental review under State Clearinghouse No. 2024050578; and
WHEREAS, the California Environmental Quality Act (Public Resources Code section 21000 et seq.; “CEQA”) and the CEQA Guidelines (title 14, California Code of Regulations, section 15000 et seq.) require environmental review of discretionary projects as provided by law; and
WHEREAS, pursuant to CEQA, the City conducted an environmental assessment of the Project and determined that the Project could have a significant effect on the environment; therefore, an Environmental Impact Report has been prepared; and WHEREAS, the EIR identifies significant and unavoidable air-quality and greenhousegas effects after mitigation; and WHEREAS, as part of the Project, BH Indio Land, LLC, a developer, applied pursuant to the Unified Development Code (“UDC”) Section 6.05.02 for a statutory Development Agreement (“Development Agreement”); and
WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted Section 65864 et seq. of the California Government Code (the “Development Agreement Statute”); and WHEREAS, the Development Agreement Statute authorizes the City to enter into a property development agreement with any person having legal or equitable interest in real property for the development of such property to establish certain development rights; and
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WHEREAS, Unified Development Code (“UDC”) section 6.05.02 establishes the City’s procedures and requirements for development agreements, including findings addressing plan consistency, orderly development and property values, and public health, safety, and welfare; and
WHEREAS, pursuant to Government Code Section 65867, a public hearing on an application for a development agreement shall be held by the planning agency (Planning Commission) and by the legislative body; and
WHEREAS, on May 27, 2026, and June 10, 2026, the Planning Commission held public hearings, considered the Project and environmental materials, and recommended denial; the City Council has independently considered that advisory recommendation and the evidence supporting and opposing the Project; and WHEREAS, on September 16, 2026, the City Council held a duly noticed public hearing on the proposed Development Agreement, considered the staff report, proposed agreement, environmental materials and public testimony, and concluded the hearing; and
WHEREAS, the Development Agreement presented for adoption is the complete agreement identified in Exhibit A, including its attachments and the legal description of the property, and BH Indio Land, LLC has a legal or equitable interest in that property; and
WHEREAS, the City Council considered all revisions to the proposed agreement and completed any further notice, hearing, or referral required by law.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA, DOES ORDAIN AS FOLLOWS:
Section 1. Recitals and Environmental Determination. The foregoing recitals are incorporated as findings. Before approving the Project, the City Council adopted a resolution certifying the Final Environmental Impact Report for the Oasis at Indio Project (State Clearinghouse No. 2024050578), making the required CEQA findings, adopting a Statement of Overriding Considerations for the significant and unavoidable impacts, and adopting the Mitigation Monitoring and Reporting Program (“MMRP”). That resolution and its exhibits are incorporated herein. All applicable mitigation measures are binding conditions of this approval and shall be implemented at the times specified in the MMRP.
Section 2. Development Agreement Findings. Pursuant to Government Code section 65867.5 and UDC section 6.05.02(G), the Council makes the following findings. (a) The Development Agreement is consistent with the General Plan as amended concurrently by resolution and the Oasis at Indio Specific Plan adopted concurrently by ordinance. It implements the land use program, infrastructure
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obligations, development standards, and implementation requirements established by those planning approvals. The agreement does not authorize uses or intensities exceeding those approvals.
(b) The agreement will not adversely affect orderly development or preservation of property values. Its enforceable provisions coordinate development with the drainage, access, utility and public-improvement obligations applicable to the Project, rather than allowing development without the facilities needed to serve it. (c) The agreement will not be detrimental to public health, safety, or welfare.
Development remains subject to the applicable mitigation measures, improvement obligations, and health and safety requirements preserved in the agreement and required by law. The Council has weighed the Project’s unavoidable environmental effects as stated in the separately adopted CEQA findings and Statement of Overriding Considerations.
(d) The Council relies on public benefits only to the extent established by enforceable terms of Exhibit A. A potential police substation, medical clinic, or other prospective use is not treated as a guaranteed facility.
Section 3. Approval and Execution. The Development Agreement, DA-23-0001, between the City of Indio and BH Indio Land, LLC, in the exact form attached as Exhibit A is approved. The Mayor is authorized to execute that agreement on behalf of the City after this ordinance and the related Specific Plan and zoning ordinances have become effective and the General Plan amendments are in effect. The City Clerk shall attest the City’s signature. The City Attorney may approve correction of clerical errors and completion of execution information, but no substantive change to the approved bargain, term, benefits, vesting, or property description is delegated to staff. The agreement shall provide for compliance with Government Code section 66473.7 for any subdivision to which that section applies, as required by Government Code section 65867.5(c). The Community Development Director shall administer the periodic review required by Government Code section 65865.1 and the agreement.
Section 4. Recordation and Custody. No later than 10 days after the City enters into the Development Agreement, the City Clerk shall record a copy of the fully executed agreement, including the legal description and all recordable attachments, with the Riverside County Recorder pursuant to Government Code section 65868.5. A conformed recorded copy shall be retained in the City Clerk’s official records. Approval of this ordinance is not a representation that the agreement has already been executed or recorded.
Section 5. Publication and Effective Date. The City Clerk shall certify adoption of this ordinance and cause its publication in accordance with state law. This ordinance shall take effect 30 days after adoption, subject to applicable referendum law. The agreement shall not become operative before the related General Plan amendments, Specific Plan, and zoning approvals are effective.
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ORDINANCE NO. 1847
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF INDIO, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT DA-23-0001 BETWEEN THE CITY AND BH
INDIO LAND, LLC, FOR THE OASIS AT INDIO PROJECT
INTRODUCED at a regular meeting on September 16, 2026, and PASSED, APPROVED, AND ADOPTED at a regular or adjourned regular meeting on October 7, 2026, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_______________________
ELAINE HOLMES, MAYOR
ATTEST:
______________________
SABDI SANCHEZ, DIRECTOR OF CITY CLERK SERVICES
Exhibit A — Development Agreement DA-23-0001, including all exhibits and legal description
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RECORDING REQUESTED BY AND FOR RECORDER’S USE ONLY
WHEN RECORDED MAIL TO:
City of Indio
100 Civic Center Mall
Indio, CA 92201
Recorded for the Benefit of
the City of Indio
Pursuant to Government Code Section 27283
(Space Above This Line Reserved for Recorder’s Use Only)
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF INDIO
AND
BH INDIO LAND, LLC
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ARTICLE 1 GENERAL PROVISIONS ......................................................................................2
1.1 Incorporation of Preamble, Recitals and Exhibits ...................................................2
1.2 Definitions................................................................................................................3
1.3 Term.........................................................................................................................3 ARTICLE 2 APPLICABLE LAW ...............................................................................................3
2.1 Applicable Rules Regulations..................................................................................3
2.2 Future Changes to Applicable Rules........................................................................3
2.3 Applicability of Uniform Code Regulations............................................................4
2.4 Public Health and Safety Exception ........................................................................4
2.5 Changes in State or Federal Laws............................................................................6
2.6 CEQA.......................................................................................................................6
2.7 Subsequent Approvals .............................................................................................6
2.8 Regulatory Agency Approvals.................................................................................7
2.9 Changes to Development Agreement Statute ..........................................................8 ARTICLE 3 DEVELOPMENT OF THE PROJECT ...................................................................8
3.1 Development Rights.................................................................................................8
3.2 Vested Elements.......................................................................................................8
3.3 Life of Subdivision Maps and Other Project Approvals..........................................9
3.4 Compliance with CEQA ..........................................................................................9
3.5 Compliance with Project Approvals ......................................................................10
3.6 Development Timing .............................................................................................10
3.7 Final Subdivision Maps .........................................................................................14
3.8 Provision and Financing of Public Improvements.................................................10 ARTICLE 4 OBLIGATIONS OF DEVELOPER ......................................................................13
4.1 Payment of Fees and Costs ....................................................................................14
4.2 Hold Harmless and Indemnification of City..........................................................15
4.3 Provision of Community Benefits .........................................................................16
4.4 Developer Representations and Warranties...........................................................16
4.5 Release of Settlement Funds to City……………………………………………..17 ARTICLE 5 OBLIGATIONS OF CITY ....................................................................................17
5.1 Processing During Third Party Litigation..............................................................17
5.2 Reserved.................................................................................................................17
5.3 Expeditious Processing ..........................................................................................18 ARTICLE 6 MUTUAL OBLIGATIONS...................................................................................18
6.1 Notice of Completion or Revocation .....................................................................18
6.2 Estoppel..................................................................................................................18
6.3 Good Faith and Fair Dealing..................................................................................18
6.4 Other Necessary Acts.............................................................................................18
6.5 Compliance with Financing Plan...........................................................................18
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ARTICLE 7 ANNUAL REVIEW OF DEVELOPER’S COMPLIANCE .................................19
7.1 Procedure ...............................................................................................................19
7.2 Noncompliance and Cure.......................................................................................19
7.3 Effect on Permitted Transferees.............................................................................19 ARTICLE 8 AMENDMENT; TERMINATION........................................................................20
8.1 Amendment or Termination of Agreement............................................................20
8.2 Expiration; Termination.........................................................................................20
8.3 Insubstantial Modifications and Operating Memoranda........................................20
8.4 Amendments to Project Approvals ........................................................................20 ARTICLE 9 TRANSFER AND ASSIGNMENT; RELEASE; RIGHTS OF
MORTGAGEES; CONSTRUCTIVE NOTICE................................................................21
9.1 Right to Assign ......................................................................................................21
9.2 Release upon Permitted Transfer...........................................................................21
9.3 Rights of Mortgagees; Not Obligated to Construct; Right to Cure Default ..........23
9.4 Constructive Notice ...............................................................................................24 ARTICLE 10 ENFORCEMENT OF AGREEMENT; REMEDIES FOR DEFAULT; DISPUTE RESOLUTION.................................................................................................24
10.1 Events of Default ...................................................................................................24
10.2 Meet and Confer ....................................................................................................24
10.3 Remedies and Termination ....................................................................................25
10.4 Legal Action by Parties..........................................................................................25
10.5 Attorneys’ Fees ......................................................................................................26
10.6 No Waiver..............................................................................................................26 ARTICLE 11 MISCELLANEOUS PROVISIONS......................................................................26
11.1 Entire Agreement...................................................................................................26
11.2 Binding Covenants; Run With the Land................................................................26
11.3 Applicable Law and Venue....................................................................................26
11.4 Construction of Agreement....................................................................................27
11.5 Project Is a Private Undertaking; No Joint Venture or Partnership.......................27
11.6 Force Majeure ........................................................................................................27
11.7 Recordation............................................................................................................27
11.8 Signature in Counterparts ......................................................................................27
11.9 Computation of Time; Time of the Essence ..........................................................27
11.10 Notices ...................................................................................................................27
11.11 No Third Party Beneficiaries .................................................................................27
11.12 Conflict of Interest .................................................................................................27
11.13 Severability ............................................................................................................27
11.14 Further City Actions ..............................................................................................27
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EXHIBITS
Exhibit A Legal Description of Property
Exhibit B Depiction of Property
Exhibit C Public Benefits
Exhibit D Existing Development Fees
Exhibit E Fee Credits
Exhibit F Form: Assignment And Assumption Agreement
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DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF INDIO
AND
BH INDIO LAND, LLC
THIS DEVELOPMENT AGREEMENT (“Agreement”) dated for reference purposes only as of ____, 2026, and effective as of the Effective Date, is by and between the City of Indio, a California municipal corporation (“City”), and BH Indio Land, LLC, a California Limited Liability Company (“Developer”), pursuant to the authority of Sections 65864 et seq. of the California Government Code. City and Developer are also sometimes referred to individually as a “Party” and together as the “Parties.”
RECITALS
This Agreement is entered upon the basis of the following facts, understandings and intentions of City and Developer.
A. In order to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs and risk of development, the Legislature of the State of California enacted Section 65864 et seq. of the Government Code (the “Development Agreement Statute”), which authorizes the City and a developer having a legal or equitable interest in real property to enter into a binding development agreement, establishing certain development rights in the property.
B. Developer is the owner of that certain real property located in the City of Indio, County of Riverside, California and legally described on Exhibit A and depicted on Exhibit B attached hereto and incorporated herein (collectively, the “Property” or “Project Site”). The Project Site consists of approximately 183 acres, which is generally bound by Avenue 42 to the north, Monroe Street to the east, Interstate 10 to the south, and the All-American Canal to the west.
C. Developer seeks entitlements, including the Oasis at Indio Specific Plan (the “Specific Plan”) that would permit development of the Property with a mixed-use development containing up to 1,806,260 square feet of industrial uses, up to 3,240 multi-family residential units, and 20,000 square feet of commercial/retail uses, as well as associated infrastructure and public improvements (the “Project”). The ultimate buildout of the Project Site will be governed by the Specific Plan, which establishes intensity and development standards that will be implemented by specific development projects. The Project is more fully described in, and subject to, (i) this Agreement, (ii) the City’s General Plan, as amended by the City Council on [**INSERT DATE**] by Resolution No. [**INSERT RESOLUTION NUMBER**], (iii) the Specific Plan approved by the City Council on [***INSERT DATE***] by Resolution No. [***INSERT RESOLUTION NUMBER***], (iv) the Environmental Impact Report prepared for the Project, approved and certified by the City Council on [***INSERT DATE***] by City Council Resolution No. [***INSERT RESOLUTION NUMBER***] (the “Project EIR”), (v) Tentative Parcel Map No. [***INSERT TRACT MAP NO.***] approved by the City Council on [***INSERT DATE***] by City Council Resolution No. [***INSERT RESOLUTION
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NUMBER***], and (vi) the conditions of approval associated with each and all of the foregoing approvals (collectively, the “Conditions of Approval”).
D. The complexity, magnitude and long-range nature of the Project would be difficult for Developer to undertake if the City had not determined, through this Development Agreement, to inject a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the Project. As a result of the execution of this Agreement, both Parties can be assured that the Project can proceed without disruption caused by a change in planning and development policies and requirements, which assurance will thereby reduce the actual or perceived risk of planning, financing, and proceeding with construction of the Project. Furthermore, while City may approve other projects after the Effective Date that place a burden on City’s infrastructure, it is the intent and agreement of the Parties that Developer’s right to implement the Project, as set forth in the Project Approvals, shall not be diminished as a result of such other projects and that Developer’s cost to develop the Project shall not be increased as a result of such other projects.
E. City is desirous of advancing the socioeconomic interests of City and its residents by promoting the productive use of property and encouraging quality development and economic growth, thereby enhancing employment opportunities for residents and expanding City’s property tax base. City is also desirous of gaining the Public Benefits (as defined in this Agreement) of the Project, which are in addition to those dedications, conditions and exactions required by laws or regulations and as set forth in this Development Agreement, and which advance the planning objectives of, and provide benefits to, City.
F. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Development Agreement is appropriate. This Development Agreement will eliminate or reduce uncertainty regarding Project Approvals, thereby encouraging planning for, investment in, and commitment to the use and development of the Property as well as implementing the goals and policies set forth in the City of Indio’s General Plan (“General Plan”). Development of the Project will, in turn, (i) provide substantially increased property tax and sales tax revenues; (ii) increase employment opportunities for residents of City created by the Project; and (iii) provide the identified Public Benefits (as defined in this Agreement) provided by the Project for the residents of City, as well as other unstated benefits. Continued use and development of the Property will in turn provide substantial housing, employment, and property and sales tax benefits as well as other public benefits to City, and contribute to the provision of needed infrastructure for area growth, thereby achieving the goals and purposes for which the Development Agreement Legislation was enacted.
G. The City Council has determined that this Agreement is consistent with the City’s General Plan and the Specific Plan, including the goals and objectives thereof.
H. All actions taken by the City in connection with approving this Agreement have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) (“CEQA”), and all other requirements for notice, public hearings, findings, votes and procedural matters. The
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environmental effects of the proposed development of the Property were analyzed by the Project EIR. City has also adopted a mitigation monitoring and reporting program (the “MMRP”) to ensure that those mitigation measures incorporated as part of, or imposed on, the Project are enforced and completed. Those mitigation measures for which Developer is responsible are incorporated into, and required by, the Project Approvals. City has also adopted findings of fact and statements of overriding considerations for those adverse environmental impacts of the Project that may not or cannot be mitigated to an acceptable level.
I. In addition to the Project Approvals, the Project may require various additional land use and construction approvals, termed Subsequent Approvals (as defined in this Agreement), in connection with development of the Project.
J. City has given the required notice of its intention to adopt this Development Agreement and has conducted public hearings thereon pursuant to Government Code Section 65867. As required by Government Code Section 65867.5, City has found that the provisions of this Development Agreement and its purposes are consistent with the goals, policies, standards and land use designations specified in City’s General Plan.
K. On [date], the City of Indio Planning Commission (“Planning Commission”), the initial hearing body for purposes of development agreement review, recommended approval of this Development Agreement pursuant to Resolution No. [____]. On ____________, 2026, the City Council adopted its Ordinance No.___ approving this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals of fact and the mutual covenants and promises set forth herein, the City and Developer hereby agree as follows:
AGREEMENT
ARTICLE 1
GENERAL PROVISIONS
1.1 Incorporation of Preamble, Recitals, and Exhibits. The preamble paragraph, Recitals, Exhibits, and any Appendices, and all defined terms contained therein, are hereby incorporated into this Agreement by this reference as if set forth in full.
1.2 Definitions. The capitalized terms used in this Agreement shall have the meanings as defined in the body of this Agreement.
1.3 Parties.
1.3.1 City. City is a California municipal corporation, with offices located at 100 Civic Center Mall, Indio, California 92201. “City,” as used in this Development Agreement, shall include City and any assignee of or successor to its rights, powers and responsibilities.
1.3.2 Developer. Developer is a California limited liability company, with offices located at 11111 Santa Monica Boulevard, Suite 600, Los Angeles, California 90025.
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“Developer,” as used in this Development Agreement, shall include any permitted assignee or successor-in-interest as herein provided.
1.4 Term.
1.4.1 Effective Date. This Agreement shall become effective upon the later of (i) the date of execution of this Agreement by both Parties, and (ii) the effective date of Ordinance No. ________ approving this Agreement, after the expiration of any applicable statutes of limitation or final resolution of all legal challenges or referendum to Ordinance No. _______ (the “Effective Date”). Notwithstanding the foregoing or any provision of this Agreement to the contrary, if after all appeals or time to appeal have been exhausted, a court of competent jurisdiction enters a final judgment or issuance of a final order directed to the City to set aside, withdraw, or abrogate the approval of this Agreement, then this Agreement shall be deemed to have no force or effect upon either Party.
1.4.2 Term of Agreement. The term of this Agreement shall commence upon the Effective Date and shall continue in full force and effect thereafter for a period of twenty (20) years (“Initial Term”) unless extended pursuant to the mutual agreement of the Parties or earlier terminated as provided elsewhere in this Agreement (the term of this Agreement, as may be so extended or terminated, is herein referred to as the “Term”). The commencement of construction” within 20 years from the Effective Date constitutes vesting for purposes of the Development Agreement. The Initial Term has been established by the Parties in order to provide ample time to develop the Project and obtain the community benefits of the Project, as specifically outlined in this Agreement.
1.4.3 Extensions. Developer is entitled to two 5-year extensions (each an “Extension”), provided Developer is not in default when exercising the Extension. Developer may exercise an Extension by providing to the City written notice of its exercise of an Extension (“Extension Notice”) within the final year of any current Term.
1.5 Project Approvals.
1.5.1 Developer has applied for and obtained various environmental and land use approvals and entitlements related to the development of the Project, as described below.
For purposes of this Development Agreement, the term “Project Approvals” shall mean all of the approvals, plans and agreements described herein.
1.5.1.1 All of those approvals identified in Recital C.
1.5.1.2 Subsequent Approvals. In order to develop the Project as contemplated in this Development Agreement, the Project may require land use approvals, entitlements, development permits, and use and/or construction approvals other than those listed in this Agreement , which may include, without limitation: development plans, amendments to applicable redevelopment plans, conditional use permits, variances, subdivision approvals, street abandonments, design review approvals, demolition permits, improvement agreements, infrastructure agreements, grading permits, building permits, right of way permits, lot line adjustments, site plans, sewer and water connection permits, certificates of occupancy, parcel
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maps, lot splits, landscaping plans, master sign programs, transportation demand management programs, encroachment permits, and amendments thereto and to the Project Approvals (collectively, “Subsequent Approvals”). At such time as any Subsequent Approval applicable to the Property is approved by the City, then such Subsequent Approval shall become subject to all the terms and conditions of this Development Agreement applicable to Project Approvals and shall be treated as a “Project Approval” under this Development Agreement.
1.6 Public Benefits. In consideration of, and in reliance on, City agreeing to the provisions of this Development Agreement, Developer will provide the public benefits (“Public Benefits”) described in Exhibit C, which are over and above those dedications, conditions and exactions required by laws or regulations.
ARTICLE 2
APPLICABLE LAW
2.1 Applicable Rules. Except as otherwise expressly provided in this Agreement, during the Term, the Project Approvals, including any future applications for discretionary or Ministerial Approvals and/or permits necessary or convenient for implementation of the Project, including, but not limited to, development plans, amendments to applicable redevelopment plans, conditional use permits, variances, subdivision approvals, street abandonments, design review approvals, demolition permits, improvement agreements, infrastructure agreements, grading permits, building permits, right-of-way permits, lot line adjustments, site plans, sewer and water connection permits, certificates of occupancy, parcel maps, lot splits, landscaping plans, master sign programs, transportation demand management programs, encroachment permits, and amendments thereto and to the Project Approvals (collectively, “Subsequent Approvals”) shall be processed, considered, reviewed, and acted upon in accordance with the rules, regulations, ordinances, and officially adopted policies of the City in full force and effect as of the Effective Date of this Agreement, including the General Plan, Specific Plan, and Indio Development Code (collectively, the “Applicable Rules”).
2.2 Future Changes to Applicable Rules.
2.2.1 To the extent any changes in the Applicable Rules, or any provisions of future general plans, specific plans, zoning ordinances, or other rules, regulations, ordinances or policies (whether adopted by means of ordinance, initiative, referenda, resolution, policy, order, moratorium, or other means) of the City (collectively, “Future Rules”) are not in conflict with the Vested Elements (as defined in this Agreement), such Future Rules shall be applicable to the Project.
2.2.2 By way of example, and not to be construed as an exhaustive list of potential conflicts, Future Rules shall be deemed to be in “conflict” with the Vested Elements if any one of the following would occur:
2.2.2.1 Alter or change any land use, including permitted or conditional uses, of the Project Site from that permitted under this Agreement and the Applicable Rules.
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2.2.2.2 Limit or reduce the height or bulk of the Project, or any portion thereof, or otherwise require any reduction in the height or bulk of individual proposed buildings or other improvements from that permitted under this Agreement and the Applicable Rules.
2.2.2.3 Limit or reduce the density or intensity of the Project, or any portion thereof, or otherwise require any reduction in the square footage or number of proposed buildings, residential dwelling units, parking or loading spaces, or other improvements from that permitted under this Agreement and the Applicable Rules.
2.2.2.4 Except as otherwise provided in this Agreement, in any manner unreasonably control, delay, or limit the rate, timing, phasing, or sequencing of the approval, development, or construction of all or part of the Project.
2.2.2.5 Increase any Development Fees, except as expressly permitted by this Agreement.
2.2.2.6 Except as otherwise provided in this Agreement, materially increase (by an amount greater than 15%) the cost of performance of, or preclude compliance with, any provision of the Project Approvals.
2.2.2.7 Conflict with or materially increase the obligations of Developer under this Agreement.
2.2.2.8 Adversely affect in any material respect the rights of Developer under this Agreement.
2.2.2.9 Limit or restrict the availability of public utilities, services, infrastructure, or facilities (for example, without limitation, water rights, water connection or sewage capacity rights, sewer connections, etc.) to the Project.
2.2.2.10 Except as expressly provided herein, impose limits or controls in the rate, timing, phasing, or sequencing of development of the Project beyond those existing on the Effective Date.
2.2.2.11 Limit or control the location of buildings, structures, grading, or other improvements of the Project inconsistently with or more restrictively than limitations included in the Project Approvals.
2.2.2.12 Apply to the Project any Future Changes to the Applicable Rules otherwise allowed by this Agreement that are not uniformly applied to all substantially similar types of development projects and project sites under the City’s jurisdiction.
2.2.2.13 Require the issuance of additional permits or approvals by the City other than those required by the Applicable Rules.
2.2.2.14 Establish, enact, increase, or impose against the Project or Property any fees, assessments, or other monetary obligations other than those specifically
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permitted by this Agreement; provided, however, that the foregoing shall not prevent or limit the imposition or collection of any generally applicable real or personal property taxes with respect to the Property or any generally applicable sales, use, excise taxes, or business license fees with respect to any commercial uses within the Project.
2.2.2.15 Impose against the Project any condition, dedication, or other exaction not specifically authorized by the Project Approvals, the Applicable Rules, or this Agreement.
2.2.2.16 Subject to Section 2.7, limit the processing of applications and approvals of Subsequent Approvals, including without limitation Future Changes to the Applicable Rules that require additional processing of such applications and approvals of Subsequent Approvals.
2.2.3 To the extent that Future Rules conflict with the Vested Elements, they shall not apply to the Project and the Vested Elements shall apply to the Project, except as provided in this Section 2.2.3 and in Sections 2.3 through 2.6, inclusive. A Future Rule that conflicts with the Vested Elements shall nonetheless apply to the Property and the Project if, and only if (i) consented to in writing by Developer in its sole and absolute discretion; (ii) it is determined by the City, and evidenced through express findings, that the change or provision is reasonably required in order to prevent a condition dangerous to the public health or safety as set forth in Section 2.4 below; (iii) required by changes in State or Federal law as set forth in Section 2.5 below; (iv) it consists of changes in, or new fees permitted by, Section 4.1.3; (v) it consists of revisions to, or new Uniform Code Regulations to the extent permitted by Section 2.3 below; or (vi) it is otherwise expressly permitted by this Agreement. In the event of any of the foregoing, the applicable Future Change to the Applicable Rules shall be deemed to be a part of the Applicable Rules.
2.2.4 Pursuant to Section 65865.4 of the Development Agreement Statute, unless this Agreement is terminated by mutual agreement of the Parties as provided for under Section 8.1, or terminated pursuant to Section 8.2, either Party may enforce this Agreement notwithstanding any Future Changes to the Applicable Rules.
2.2.5 To the maximum extent permitted by law, City shall prevent any Future Rules from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City shall not support, adopt or enact any Future Rule, or take any other action which would violate the express provisions or spirit and intent of this Agreement or the Project Approvals. Developer reserves the right to challenge in court any Future Rule that would conflict with the Vested Elements or this Agreement or reduce the development rights provided by this Agreement.
2.2.6 Prior to the Effective Date, the Parties shall have prepared two (2) sets of the Project Approvals and Applicable Rules, one (1) set for City and one (1) set for Developer.
If it becomes necessary in the future to refer to any of the Project Approvals or Applicable Rules,
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the contents of these sets are presumed for all purposes of this Development Agreement, absent clear clerical error or similar mistake, to constitute the Project Approvals and Applicable Rules.
2.3 Applicability of Uniform Code Regulations. Notwithstanding any provision herein to the contrary, nothing in this Agreement shall preclude the City from applying to the Project any provisions, requirements, rules, or regulations applicable across the City’s jurisdiction that are contained at any time during the Term in the California Building Standards Code, as amended by the City in accordance with the California Health and Safety Code, including requirements of the applicable Building Code, Administrative Code, Energy Code, Residential Code, Mechanical Code, Electrical Code, Plumbing Code, Fire Code, or other applicable construction codes (collectively, “Uniform Code Regulations”).
2.4 Public Health and Safety Exception. The City shall exercise its discretion under this Agreement and the Applicable Rules in a manner which is consistent with the public health, safety, and welfare. Notwithstanding any provision in this Agreement to the contrary, and in addition to application to the Project of Uniform Code Regulations, City shall retain, at all times, its authority to take any legally valid action necessary to protect persons or property from dangerous or hazardous conditions which create a threat to the public health or safety, including, without limitation, authority to condition or deny a permit, approval, or agreement or other entitlement or to change or adopt any new regulations applicable to the Project so long as such condition or denial or new law (i) is limited solely to addressing a specific and identifiable issue in each case required to protect the physical health and safety of the public, and (ii) is based on written findings by City and transmitted to Developer, specifically identifying, based on objective and quantifiable evidence and written, prevailing and commonly applied standards in the official record, the precise nature and extent of the dangerous or hazardous conditions requiring such condition or denial or change in the Applicable Rules, why there are no reasonable alternatives to the imposition of such condition or denial or changes in the law, and how such condition or denial or new law would alleviate the dangerous or hazardous condition (“Public Health and Safety Exception”). Developer retains the right to dispute any City reliance on the Public Health and Safety Exception.
2.5 Changes in State or Federal Laws. In accordance with Government Code Section 65869.5, in the event that state or federal laws or regulations enacted after the Effective Date (“State or Federal Law”) prevent or preclude compliance with one or more provisions of this Agreement, the Parties shall meet in good faith for a period not exceeding sixty (60) days (unless such period is extended by mutual written consent of the Parties) to determine the feasibility of any modification or suspension of this Agreement that may be necessary to comply with such State or Federal Law, to determine the effect such modification or suspension would have on the purposes and intent of this Agreement and the Vested Elements, and to prepare such modification. Following the meeting between the Parties, the provisions of this Development Agreement may, to the extent feasible, and upon mutual agreement of the Parties, be modified or suspended, but only to the minimum extent necessary to comply with such State or Federal Law.
In such an event, this Development Agreement together with any required modifications shall continue in full force and effect. In the event that the State or Federal Law operates to frustrate materially and irremediably (a) the Vested Elements, or (b) the City’s right to receive the community benefits as set forth in this Agreement, Developer, in the event of item (a), or the
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City, in the event of item (b), may terminate this Agreement. In addition, Developer shall have the right to challenge (by any method, including litigation), at its sole cost, the State or Federal Law frustrating compliance with, or performance or implementation of, the terms of this Development Agreement and, in the event that such challenge is successful, this Development Agreement shall remain unmodified and in full force and effect, unless the Parties mutually agree otherwise, except that if the Term of this Development Agreement would otherwise terminate during the period of any such challenge and Developer (a) not commenced with the development of the Project in accordance with this Development Agreement as a result of a challenged State or Federal Law or (b) been unable to satisfy the criteria for any Extension as a result of a challenged State or Federal Law, the Term shall be extended for the period of any such challenge. If Developer raises such a challenge, the City may, upon Developer’s written request and at Developer’s sole cost and expense, agree to cooperate with Developer concerning Developer’s challenge, which cooperation shall be in accordance with this Agreement; provided, however, that City shall not have any obligation to commence, prosecute, or defend any litigation with respect to any such challenge.
2.6 CEQA. Nothing in this Agreement shall be deemed to limit the City’s ability to comply or compel Developer compliance with CEQA, including any mitigation measures in the Project EIR (“Mitigation Measures”); provided, however, the City acknowledges that the Project EIR, which has been certified by City as being in compliance with CEQA, addresses the potential environmental impacts of the entire Project as it is described in the Project Approvals.
Nothing in this Development Agreement shall be construed to require CEQA review of Ministerial Approvals. It is agreed that, in acting on any discretionary Subsequent Approvals for the Project, City will rely on the EIR to satisfy the requirements of CEQA to the fullest extent permissible by CEQA.
2.7 Conflicts. In the event of an irreconcilable conflict between the provisions of the Project Approvals (on the one hand) and the Applicable Rules (on the other hand), the provisions of the Project Approvals shall apply. In the event of a conflict between the Project Approvals (on the one hand) and this Development Agreement, in particular (on the other hand), the provisions of this Development Agreement shall control.
2.8 Subsequent Approvals.
2.8.1 Processing of Subsequent Approvals. City will accept, make completeness determinations, and process, promptly and diligently, to completion all applications for Subsequent Approvals for the Project, in accordance with the terms of this Development Agreement, including, but not limited to, the following:
2.8.1.1 The processing of applications for and issuance of all discretionary approvals requiring the exercise of judgment and deliberation by City, including without limitation, the Subsequent Approvals;
2.8.1.2 The holding of any required public hearings;
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2.8.1.3 The processing of applications for and issuing of all ministerial approvals requiring the determination of conformance with the Applicable Rules, including, without limitation, site plans, development plans, land use plans, grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, demolition permits, grading permits, improvement permits, wall permits, building permits, lot line adjustments, encroachment permits, conditional and temporary use permits, sign permits, certificates of use and occupancy and approvals and entitlements and related matters as may be necessary for the completion of the development of the Property (“Ministerial Approvals”). Notwithstanding the above, for all project phases, the City shall provide expedited plan checks and expedited re-checks, with the Developer paying applicable fees for expedited review.
(a) City agrees that it shall complete its first review of Ministerial Approval applications within forty-five (45) working days of Developer’s submittal of plans to the City. City’s second review of resubmitted plans shall be completed within twenty (20) working days of resubmittal. City’s third review of resubmitted plans shall be completed within ten (10) working days of resubmittal. To the extent there are outstanding comments after the City’s second review of plans, and prior to any third resubmittal of plans by Developer, the Parties will meet to discuss any outstanding comments. After such meeting, City will complete its review Developer’s resubmitted plans within ten (10) working days. Any Developer submittals or re-submittals shall be made in good faith, addressing comments or revisions identified by the City, consistent with applicable law. (b) City agrees to engage a third-party plan checker to review any applications for the Ministerial Approvals, the cost of which shall be reimbursed by Developer, if the agreed-upon timelines identified in this section cannot be met by City staff.
City may engage a third-party plan checker after providing written notice to Developer of the City’s need for such checker.
2.8.2 The Parties agree that pre-submittal coordination and meetings are imperative to the timely processing of Subsequent Approvals. Therefore, the Parties agree to work cooperatively to keep each Party apprised of the status of planned submittals and schedule, as warranted, meetings in anticipation of such submittals and after submittals to discuss status and coordination on the City’s review of the Subsequent Approvals and implementation of the Project. Developer may request that the City participate in plan check coordination meetings to ensure that all comments are understood prior to submitting or resubmitting. These meetings will include the applicant team and applicable staff from individual departments as needed.
Developer shall notify staff thirty (30) days prior to submittal to confirm necessary submittal content.
2.8.3 Scope of Review of Subsequent Approvals. By approving the Project Approvals and this Agreement, City has made a final policy decision that the Project is in the best interests of the public health, safety, and general welfare. Accordingly, City shall not use its authority in considering any application for a discretionary Subsequent Approval to change the policy decisions reflected by the Project Approvals or otherwise to prevent or delay development of the Project as set forth in the Project Approvals, except where necessary to address unforeseen
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circumstances that may significantly affect public health, safety, or the general welfare. In such cases, any modifications or delays shall be limited to the extent necessary to address the specific concern and shall be accompanied by written findings detailing the nature and extent of the impact, as well as any proposed mitigation measures. Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy decisions. The scope of the review of applications for Subsequent Approvals shall be limited to a review of substantial conformity with the Vested Elements as set forth and subject to Section 3.2 (and except as otherwise provided by Sections 2.2 through 2.6, inclusive, and other Applicable Rules). Where such conformity/compliance exists, City shall not deny an application for a Subsequent Approval.
2.8.4 Conditions of Subsequent Approvals.
2.8.4.1 City shall have the right to impose reasonable conditions upon Subsequent Approvals including, without limitation, normal and customary dedications for rights of way or easements for public access, utilities, water, sewers, and drainage necessary for the Project; provided, however, such conditions and dedications shall not be inconsistent with the Applicable Rules, nor inconsistent with the development of the Project as contemplated by this Agreement except to the extent required by the Applicable Rules. Developer may protest any conditions, dedications, or fees while continuing to develop the Property. In the event of a protest by Developer, the City retains the right to pause any Subsequent Approval processes until the protest is resolved, to ensure that the Project proceeds in a manner consistent with the City's interests and regulations, but the City shall not withhold or delay any permit or other approval for any aspect of the Project not directly subject to the Subsequent Approval that is the subject of the protest.
2.8.4.2 Provided that any such improvement condition is not inconsistent with or otherwise conflict with the Project Approvals, Subsequent Approvals may require dedications or reservations for, or construction or funding of, Public Improvements beyond those already included or referenced in the Specific Plan or other Project Approvals, the Mitigation Measures (except to the extent required by CEQA in connection with any Subsequent Approvals) or Section 3.8.1, in the event of a Public Health and Safety Exception, as defined in Section 2.4 of this Agreement. In addition, any and all conditions imposed on Subsequent Approvals for the Project must comply with Section 4.1 (Payment of Fees and Costs).
2.9 Regulatory Agency Approvals. The Parties acknowledge and agree that, in addition to the Project Approvals and any Subsequent Approvals, the Project, including the provision of some of the community benefits, may require Developer to obtain approvals or clearances from various regulatory agencies, other third-party public agencies and utilities (collectively, the “Third-Party Agency Approvals”). Without limitation, the Third-Party Agency Approvals may include approvals or clearances from the Coachella Valley Water District (“CVWD”), the Imperial Irrigation District (“IID”), the U.S. Army Corps of Engineers, the California Department of Fish & Wildlife, the State Lands Commission, and the Regional Water Quality Control Board. Developer agrees to use diligent and commercially reasonable efforts, to procure the Third-Party Agency Approvals. If requested by Developer, the City shall cooperate with Developer, at Developer’s sole cost, in Developer’s efforts to obtain the ThirdParty Agency Approvals. If after using all reasonable efforts, Developer is unable to obtain any
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Third-Party Agency Approval needed in order for Developer to develop the Project or meet its obligations under this Agreement, including providing the public benefits described in this Agreement, such inability shall constitute a Permitted Delay subject to the provisions of Section 11.6.
2.10 Changes to Development Agreement Statute. This Development Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute as those provisions existed at the Effective Date. No amendment or addition to those provisions or any other federal or state law and regulation that would materially adversely affect the interpretation or enforceability of this Development Agreement or would prevent or preclude compliance with one or more provisions of this Development Agreement shall be applicable to this Development Agreement unless such amendment or addition is specifically required by the change in law, or is mandated by a court of competent jurisdiction. In the event of the application of such a change in law, the Parties shall meet in good faith to determine the feasibility of any modification or suspension that may be necessary to comply with such new law or regulation and to determine the effect such modification or suspension would have on the purposes and intent of this Development Agreement and the Vested Elements. Following the meeting between the Parties, the provisions of this Development Agreement may, to the extent feasible, and upon mutual agreement of the Parties, be modified or suspended but only to the minimum extent necessary to comply with such new law or regulation. If such amendment or change is permissive (as opposed to mandatory), this Development Agreement shall not be affected by the same unless the Parties mutually agree in writing to amend this Development Agreement to permit such applicability. Developer and/or City shall have the right to challenge any new law or regulation preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect. The Term of this Agreement may be extended for the duration of the period during which such new law or regulation precludes compliance with the provisions of this Agreement.
ARTICLE 3
DEVELOPMENT OF THE PROJECT
3.1 Development Rights. Developer shall have a vested right to develop the Project on the Property, in accordance with the Vested Elements.
3.2 Vested Elements. The overall design, development, construction, and use of the Project and all improvements in connection therewith, including without limitation, permitted uses of the Property, the maximum density of development, the intensity of use, the maximum height and size of the proposed buildings, provisions for reservation or dedication of land for public purposes, the conditions, terms, restrictions, and requirements for subsequent discretionary actions, the provisions for and financing for public improvements, and the other terms and conditions of development applicable to the Property are as set forth in (i) the Project Approvals, as may be amended, (ii) the Indio Development Code on the Effective Date (“Applicable Zoning Ordinance”), and (iii) the Applicable Rules, and are hereby vested in Developer, subject to, and as provided in, the provisions of this Development Agreement (the “Vested Elements”). The intent of this Section 3.2 is to cause all development rights which may be required to develop the Project in accordance with this Agreement and the Project Approvals
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to be deemed to be “vested rights” as that term is defined under California law applicable to the development of land or property and the right of a public agency to regulate or control such development of land or property. City hereby agrees to be bound with respect to the Vested Elements, subject to Developer’s full and timely compliance with the terms and conditions of this Agreement, the Project Approvals, and all applicable laws and regulations. By stating that the terms and conditions of this Agreement and the Project Approvals control the overall design, development and construction of the Project, this Agreement is consistent with the requirements of California Government Code Section 65865.2 (requiring a development agreement to state permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings and provisions for reservation or dedication of land for public purposes).
Notwithstanding the preceding provisions of this Section 3.2 or any other provision in this Agreement to the contrary, in the event of any conflict between the terms and conditions of any Project Approvals (including Developer’s rights and obligations thereunder) other than this Agreement, including without limitation any Subsequent Approvals, and the terms and conditions of this Agreement (including Developer’s rights and obligations hereunder), the terms and conditions of this Agreement shall control.
3.3 Life of Subdivision Maps and Other Project Approvals.
3.3.1 Life of Subdivision Maps. The terms (lifespan) of Tentative Parcel Map No. [INSERT] and any other Subdivision Maps approved by the City for the Project shall be automatically extended such that Tentative Parcel Map No. [INSERT] and all such other Subdivision Maps remain in effect for a period of time coterminous with the Term of this Agreement.
3.3.2 Life of Other Project Approvals. The term of all other Project Approvals shall be automatically extended such that the Project Approvals remain in effect for a period of time at least as long as the Term of this Agreement, with the exception of construction plan approvals, which shall be valid for the period of time identified within the applicable California Building Standards Code.
3.3.3 Termination of Agreement. In the event that this Agreement is terminated prior to the expiration of the Term of the Agreement for any reason other than a Developer Event of Default, the term of any Subdivision Map approved by the City for the Project or any other Project Approval, as well as the vesting period for any vesting Subdivision Map approved as a Project Approval, shall be the term otherwise applicable to such approval in accordance with the California Subdivision Map Act or Indio Unified Development Code, which term shall commence to run on the date that such termination of this Agreement takes effect. In the event of any termination of this Agreement for a Developer Event of Default, the provisions of Section 8.2.3 shall govern with respect to the term of the Project Approvals.
3.4 Compliance with CEQA. Developer acknowledges that the development of the Project and the Project Site is subject to compliance with CEQA, including but not limited to any applicable Mitigation Measures as may be amended from time to time. The Project EIR, which has been certified by the City as being in compliance with CEQA, addresses the potential environmental impacts of the Project as it is described in the Project Approvals. To the extent
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that the Project will require the issuance of Subsequent Approvals that are discretionary in nature, such Subsequent Approval shall be subject to review by the City to the extent required by CEQA or other Applicable Rules. The City will rely on the previously-certified Project EIR to satisfy the requirements of CEQA to the fullest extent permissible by CEQA, and City will not require a new initial study, negative declaration, EIR addendum, or subsequent or supplemental EIR unless required by CEQA and will not impose on the Project any additional mitigation measures other than specifically required by CEQA. Nothing in this Agreement shall limit the ability of the City to impose conditions on any Subsequent Approvals resulting from Material Changes as such conditions are determined by the City to be necessary to mitigate significant environmental impacts identified through the CEQA process and associated with the Material Changes or otherwise to address significant environmental impacts as defined by CEQA created by a Subsequent Approval; provided, however, any such conditions must be in accordance with CEQA. As used herein, “Material Changes” means the circumstances described in subparts (a), (b), and (c) of Public Resources Code Section 21166.
3.5 Compliance with Project Approvals. In developing the Project, Developer shall at all times comply with the Project Approvals and Applicable Rules, and Developer further agrees that all Improvements required to be constructed by Developer for the Project (including all Site Improvements and Offsite Improvements) shall be constructed in accordance with this Agreement, the Project Approvals, and Applicable Law.
3.6 Development Timing.
3.6.1 Pardee Finding. Development of the Project Site is permitted to occur in phases as described and contemplated in the Specific Plan and Project Approvals. The Parties wish to avoid the result of Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), where the failure of the parties there to expressly provide for the timing of development resulted in the court’s determination that a later-adopted initiative restricting the timing of development prevailed over the parties’ agreement. Accordingly, the Parties acknowledge and agree that Developer shall have the right, subject to the provisions of the Project Approvals and the requirements of Sections 4.1 and 4.2 of this Agreement, to develop the Project at such time and in such phases as Developer deems appropriate in the exercise of its subjective business judgment. Developer shall submit construction phasing plans together with subsequent application submittals for development of the Project.
3.6.2 Moratorium. No City imposed moratorium or other limitation (whether relating to the rate, timing or sequencing of the development or construction of all or any part of the Property, whether imposed by ordinance, initiative, resolution, policy, order or otherwise, and whether enacted by the City Council, an agency of City, the electorate, or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (including, without limitation, water and sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to the extent such moratorium or other limitation is in conflict with this Agreement; provided, however, the provisions of this Section shall not affect City’s compliance with moratoria or other limitations mandated by other governmental agencies or court imposed moratoria or other limitations.
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3.7 Final Subdivision Maps. Developer may from time-to-time file applications for Subsequent Approvals of final subdivision maps (including phased final subdivision maps) with respect to some or all of the Project Site in accordance with the provisions of the Subdivision Map Act.
3.8 Provision and Financing of Public Improvements.
3.8.1 Construction and Dedication. Developer shall be responsible, at its sole cost and expense (except to the extent as may otherwise be provided in this Agreement, including any Financing Mechanism established pursuant to Section 3.8.2), for the design, engineering, and construction of all roads, parks, drainage, sewer, water, and utility Improvements, and all other infrastructure and Improvements for the Project, including any Onsite Improvements or Offsite Improvements, that are to be dedicated or otherwise made available for public use pursuant to this Agreement or the Project Approvals (“Public Improvements”). Developer shall offer for dedication to City from time to time as such Public Improvement is completed, and City shall promptly accept from Developer the completed Public Improvement (and release to Developer any bonds or other security posted in connection with performance thereof in accordance with the terms of such bonds), and thereafter City shall maintain the Public Improvement. Developer may offer dedication of Public Improvements in phases, consistent with this Agreement and the Project Approvals, and the City shall not refuse to accept such phased dedications or refuse phased releases of bonds or other security so long as all other conditions for acceptance have been satisfied.
3.8.1.1 Improvements. Developer shall implement Public
Improvements consistent with the phasing and other timing requirements specified in the Project Approvals. Notwithstanding the provisions of any phasing requirements in the Project Approvals, Developer and City recognize that economic and market conditions may necessitate changing the order in which the infrastructure is constructed. Therefore, City and Developer hereby agree that should it become necessary or desirable to develop any portion of the Project’s infrastructure in an order that differs from the order set forth in the Project Approvals, Developer and City shall collaborate and City shall permit any modification requested by Developer so long as the modification continues to ensure adequate infrastructure is available to serve that portion of the Project being developed and existing uses.
3.8.1.2 Offsite Improvements and Developer Impact Reimbursement.
Developer shall construct required Offsite Improvements consistent with the Project Approvals and City requirements. If Developer also constructs non-mandatory Offsite Improvements, it shall receive Fee Credits (as defined in Section 4.1.3.3) for such improvements, up to a maximum of $250,000 for specifically applicable only to the Master Plan storm drain improvements, and shall be entitled to reimbursement for costs beyond its fair share, consistent with the reimbursement requirements pursuant to the Indio Municipal Code, currently codified at
97.075(D). The term “non-mandatory” means an Offsite Improvement that either (a) does not have an essential nexus with the Project or (b) the cost of the Offsite Improvement is not roughly proportional to the impact of the Project.
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3.8.1.3 Offsite Roadway Improvement Fair Share Contribution.
Developer shall pay required fair share contributions for offsite improvements, consistent with the Project Approvals.
3.8.1.3.a. Construction and Dedication. Developer shall be responsible, at its sole cost and expense (except to the extent as may otherwise be provided in this Agreement, including any Financing Mechanism, for the design, engineering, and construction of all roads, parks, drainage, sewer, water, and utility improvements, and all other infrastructure and improvements for the Project, including any onsite improvements or offsite improvements, that may or are to be dedicated or otherwise made available for public use pursuant to this Agreement or the Project Approvals (“Public Improvements”). Except as set forth in this Section or otherwise agreed to in writing by the City, in its reasonable discretion, all Public Improvements serving any particular development or subdivision project proposed within the Specific Plan (any such project an “Implementing Project”) shall be completed prior to the City’s issuance of the first Certificate of Occupancy for that Implementing Project or any earlier date specified in the Project Approvals. Notwithstanding anything to the contrary below, the City may, in its discretion, issue a temporary certificate of occupancy before the completion of any required public improvements.
3.8.1.3.b. Avenue 42 Frontage Improvements (Monroe Street to Clinton Street). The Project’s frontage improvements along Avenue 42, between Monroe Street and Clinton Street, including but not limited to roadway improvements, asphalt concrete paving, raised curb median, curb and gutter, sidewalks, storm drain system, , streetlights, landscaping, and irrigation (collectively, “Frontage Improvements”), any required undergrounding and/or relocation of overhead utilities, and installation or modification of required intersections or traffic signals shall be completed prior to issuance of the first certificate-of-occupancy for the first Implementing Project, subject to any Permitted Delays, including but not limited to improvement plan approvals, coordinating the undergrounding or relocation of required IID transmission and/or distribution facilities, and procuring all necessary traffic signal components.
All Permitted Delays shall be considered at the discretion of the City Engineer. With respect traffic improvements identified in the approved traffic impact analysis, the Developer may, in conjunction with an application for any Implementing Project, submit a project-specific traffic analysis demonstrating that traffic improvements identified for the specific plan (Project) traffic analysis are not required by traffic generated by the Implementing Project.
3.8.1.3.c. Avenue 42 Frontage Improvements (Clinton Street to Westerly Limits). The Project’s frontage improvements along Avenue 42, between Clinton Street and the Westerly Property Limits, any required undergrounding and/or relocation of overhead utilities and, installation or modification of required intersections or traffic signals shall be completed prior to issuance of the first certificate-of-occupancy for the Project area west of Clinton Street, or sooner if required for Project circulation or emergency vehicle access, subject to any Permitted Delays, including but not limited to improvement plan approvals, coordinating the undergrounding or relocation of required IID transmission and/or distribution facilities, and procuring all necessary traffic signal components All Permitted Delays shall be considered at the discretion of the City Engineer. With respect traffic improvements identified in the approved traffic impact analysis, the Developer may, in conjunction with an application for any
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Implementing Project, submit a project-specific traffic analysis demonstrating that traffic improvements identified for the specific plan (Project) traffic analysis are not required by traffic generated by the Implementing Project.
3.8.1.3.d. Monroe Street Frontage Improvements. The Project’s Frontage Improvements on and along Monroe Street, as well as required modifications of traffic signals per the approved traffic impact analysis and, modification or improvement of required intersections or traffic signals, shall be completed prior to issuance of the first certificate-ofoccupancy for the Project, subject to any Permitted Delays. All Permitted Delays shall be considered at the discretion of the City Engineer. With respect traffic improvements identified in the approved traffic impact analysis, the Developer may, in conjunction with an application for any Implementing Project, submit a project-specific traffic analysis demonstrating that traffic improvements identified for the specific plan (Project) traffic analysis are not required by traffic generated by the Implementing Project.
3.8.1.4 Traffic Circulation. Traffic impacts shall not exceed those that have been analyzed in the Traffic Study and in the Environmental Impact Report, without proper further analysis and concurrence by the City. In addition, the current Site Plan cannot be more impactful than the traffic generation that was analyzed.
3.8.1.5 Public Improvement Maintenance. Developer shall maintain and be liable for all Public Improvements unless and until formally accepted by City, or when finally accepted by another authority if another authority has jurisdiction over the Public Improvements, and/or when finally accepted by a public utility if a public utility has jurisdiction over the Public Improvements. Maintenance and repair of sidewalk areas shall be per Municipal Code Section 97.072 REPAIRS OF SIDEWALKS, CURBS AND DRIVEWAYS, AND THE LIKE (Ordinance No. 1060).
3.8.1.6 Relocation of Easements. Upon Developer’s request, and at Developer’s sole cost, City shall reasonably cooperate with Developer (a) to locate any new easements required for the Project so as to minimize interference with development of the Project, and (b) in Developer’s efforts to relocate or remove easements to facilitate development of the Project, provided that such cooperation does not entail any financial or legal liability for the City.
3.8.1.7 Infrastructure Capacity. Subject to Developer’s installation of infrastructure in accordance with the requirements of the Project Approvals, City hereby acknowledges that it will have, and shall reserve, sufficient capacity in its infrastructure, services and utility systems, including, without limitation, traffic circulation, storm drainage, flood control, electric service, sewer collection, sewer treatment, sanitation service and, except for reasons beyond City’s control, water supply, treatment, distribution and service, as and when necessary to serve the Project as it is developed. To the extent that City renders such services or provides such utilities, City hereby agrees that it will serve the Project and that there shall be no restriction on hookups or service for the Project except for reasons beyond City’s control.
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3.8.2 Financing. Developer shall fund all Public Improvements required by the Project Approvals by means of its own funds and any other means of financing, subject to approval by the City, as generally described in this Section 3.8.2 (the “Financing Plan”). The City agrees to reasonably cooperate with Developer in the formation of a Mello-Roos Community Facilities District (“CFD”) or other assessment district or other financing mechanism, as deemed appropriate by Developer to help implement the Financing Plan, including Developer’s fair share portion of the IID Substation costs, provided that such cooperation does not entail any financial or legal liability for the City, including, but not limited to, entering into Joint Community Facility Agreements with CVWD, IID, Indio Electric Financing Authority (“IEFA”), and/or other public agencies to fund public facilities, including capital facilities fees (each, a “Financing Mechanism”) that Developer in its sole discretion may elect to initiate related to the Project as and when so requested by Developer, provided that such Financing Mechanisms shall be subject to the following:
3.8.2.1 Developer shall, without need for a written request from the City, advance amounts necessary to pay all actual costs and expenses of City to evaluate and structure any Financing Mechanism, to the end that City will not be obligated to pay any costs related to the formation or implementation of any Financing Mechanism.
3.8.2.2 Any Financing Mechanism will provide for the reimbursement to Developer of any advances by Developer described in Section 3.8.2.1, and any other costs incurred by Developer that are related to the Financing Mechanism, such as the costs of legal counsel, special tax consultants, engineers, etc. Developer agrees to promptly submit to City a detailed accounting of all such other costs incurred by Developer, along with supporting documentation, at such time as Developer makes application for reimbursement.
3.8.2.3 City shall consult with Developer prior to engaging any consultant (including bond counsel, underwriters, appraisers, market absorption analysts, financial advisors, special tax consultants, assessment engineers, and other consultants deemed necessary to accomplish any financing). However, City retains the sole right to make the final selection of any such consultants.
3.8.2.4 Developer shall submit to City Developer’s phasing plan for any Public Improvements to be financed, including the priority and financing needs, as well as proposed improvement areas and/or tax zones. City shall act as the lead agency in forming the Financing Mechanism and will use available proceeds of any public financing in accordance with such priorities, and as otherwise provided in this Agreement.
3.8.2.5 City and Developer will determine, following consultation with any other participating public agencies, the means by which any Public Improvements may be acquired by City or other public agency, as applicable.
3.8.2.6 In addition, any financing may include amounts necessary to discharge any assessment, special tax, or other liens on the Property.
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3.8.2.7 Any public financing shall be secured solely by assessments or special taxes levied within the respective district, proceeds of the bonds issued that are placed in a bond fund, reserve fund, or other such fund for the financing and investment earnings thereon.
3.8.2.8 The payment of actual initial and annual administrative costs of City to be incurred in connection with any Financing Mechanism shall be adequately assured, through the inclusion in any assessment or special tax methodology of appropriate provision for such costs as estimated by City, to the end that City shall not be called upon to provide for any initial or annual administrative costs related to any Financing Mechanism.
3.8.2.9 The bond term of any Financing Mechanism shall not exceed thirty-five (35) years, and bonds may be issued in one or more series; the maximum tax rate shall not exceed two percent (2.00%), and special taxes shall be authorized to escalate by two percent (2.00%) annually.
ARTICLE 4
OBLIGATIONS OF DEVELOPER
4.1 Payment of Fees and Costs.
4.1.1 General. All fees, exactions, dedications, reservations, or other impositions to which the Project would be subject, but for this Development Agreement, are referred to in this Development Agreement either as “Administrative Fees” or “Development Fees”. Developer shall timely pay or perform, as applicable, all Administrative Fees and Development Fees applicable to the Project or the Project Site in accordance with the terms of this Agreement.
4.1.2 Administrative Fees. As used in this Agreement, “Administrative Fees” means fees charged by the City, on a City-wide basis in effect at the time to cover the costs of City’s review of applications for any permit or other approval or review or inspection by City.
Administrative Fees are not Development Fees. Applications for Subsequent Approvals shall be charged, and Developer shall timely pay to the City, Administrative Fees to allow City to recover its actual and reasonable costs of processing Subsequent Approvals. Administrative Fees shall be paid in accordance with the City’s ordinances or requirements, as applicable, and the provisions of this Section. Without limiting the foregoing, Developer shall reimburse City or pay directly all reasonable and actual costs relating to the hiring of consultants and the performing of studies as may be necessary to review or process any applications for Project Approvals or perform any related environmental review and City shall provide Developer with detailed invoices relating thereto as part of any reimbursement request. Prior to engaging the services of any such consultant, or authorizing the expenditure of any funds for such consultant, the City shall consult with Developer in an effort to mutually agree to terms regarding (i) the scope of work to be performed, (ii) the projected costs associated with the work, and (iii) the particular consultant that would be engaged to perform the work.
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4.1.3 Development Fees.
4.1.3.1 Definition. As used in this Agreement, “Development Fees” means all fees, contributions, exactions, or impositions, other than taxes or assessments, whether established for or imposed upon the Project individually or as part of a class of projects, that are imposed by City on the Project in connection with any Project Approval for any purpose, including, without limitation, defraying all or a portion of the cost of public services and/or facilities construction, improvement, operation, and maintenance attributable to the burden created by the Project. Development Fees do not include: (a) any Administrative Fee; (b) any Mitigation Measure (unless the Mitigation Measure consists of payment of a Development Fee); (c) any community benefits to be provided by Developer hereunder; (d) taxes or special assessments; (e) any utility connection fees in effect from time to time generally applicable on a City-wide basis to similar land uses as the Project; or (f) any fees, taxes, assessments, or impositions imposed by other entities that the City collects on behalf of such other entities, all of which shall be due and payable by Developer as and when due in accordance with applicable law. Any fee, exaction or imposition imposed on the Project which is not an Administrative Fee is a Development Fee.
4.1.3.2 Applicability and Payment.
(a) Generally. No Development Fees shall be applicable to the Project except as provided in this Agreement. The Project shall be subject only to the Development Fees as set forth in Exhibit D (“Existing Development Fees”), except as otherwise expressly permitted by this Agreement. Developer shall pay all applicable Development Fees at the time that Developer applies for or obtains, as applicable, a building permit for the Project.
(b) Categories of Development Fees. During the Term no
new categories of Development Fees (i.e., categories other than those set forth in the Existing Development Fees) shall apply to development of the Project. (c) Amounts of Development Fees. No change to a
Development Fee in Exhibit D (other than by the inflator, if any, permitted in Exhibit E using the specific index identified herein) resulting in an increase in dollar amounts charged to the Project that is adopted after the Effective Date shall apply to the Project. If, after the Effective Date, City decreases the rate of any of its Development Fees existing as of the Effective Date, Developer shall pay the reduced Development Fee in effect at the time of payment. (d) Any Development Fees levied against or applied to the Project must be consistent with the provisions of applicable California law, including the provisions of Government Code Section 66000 et seq. (“AB 1600”). Developer retains all rights set forth in California Government Code Section 66020. Nothing in this Development Agreement shall diminish or eliminate any of Developer’s rights set forth in such section.
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4.1.3.3 Fee Credits. Developer shall receive the benefit of any credits against Development Fees (“Fee Credits”) if and only to the extent any Fee Credits are specifically set forth in Exhibit E.
4.2 Cooperation in the Event of Legal Challenge.
4.2.1 The filing of any third party lawsuit(s) against City or Developer relating to this Agreement, the Project Approvals or other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project or approval of any Subsequent Approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order.
4.2.2 Developer shall indemnify the City from any third-party challenge to the Development Agreement or the Project Approvals. In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, or the Project Approvals for the Project, Developer and City each shall have the right, in its sole discretion, to elect whether or not to defend such action, to select its own counsel, and to control its participation and conduct in the litigation in all respects permitted by law. If both Parties elect to defend, the Parties hereby agree to affirmatively cooperate in defending said action and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law. As part of the cooperation in defending an action, City and Developer shall coordinate their defense in order to make the most efficient use of legal counsel and to share and protect information. City agrees to give prompt notice to Developer with respect to any action filed or claim made against City no later than the earlier of (i) ten (10) days after valid service of process as to any filed action, (ii) or immediately upon the City’s receipt of a petitioner’s election to prepare the administrative record or any notice of a case management conference to discuss the administrative record pursuant to Public Resources Code section 21167.6(b), and City shall not respond to any such petitioner election or notice of case management conference without first notifying Developer in writing and affording Developer a reasonable amount of time to confer with City regarding such response, or (iii) fifteen (15) days after receiving written notification of the assertion of such claim, which City has good reason to believe is likely to give rise to a claim for indemnification under this Section 4.2 by the Developer. Developer and City shall each have sole discretion to terminate its defense at any time. The City shall not settle any third party litigation of Project Approvals without Developer’s consent, which consent shall not be unreasonably withheld, conditioned or delayed.
4.2.3 Revisions to Project. In the event of a court order issued as a result of a successful legal challenge, City shall, to the extent permitted by law or court order, in good faith seek to comply with the court order in such a manner as will maintain the integrity of the Project Approvals and avoid or minimize to the greatest extent possible (i) any impact to the development of the Project as provided for in, and contemplated by, the Vested Elements, or (ii) any conflict with the Vested Elements or frustration of the intent or purpose of the Vested Elements.
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4.2.4 Defense of Agreement. City shall take all actions that are necessary or advisable to uphold the validity and enforceability of this Agreement. If this Agreement is adjudicated or determined to be invalid or unenforceable, City agrees, subject to all legal requirements, to consider modifications to this Agreement to render it valid and enforceable to the extent permitted by applicable law.
4.3 Developer Representations and Warranties. Developer represents, warrants, and covenants to the City, as of the Effective Date and thereafter during the Term, as follows:
4.3.1 Authority. Developer is a California limited liability company duly organized and validly existing, and is authorized to own property and do business in the State of California. Developer has the capacity and full right, power, and lawful authority to own its property and perform the terms and covenants of this Agreement, and the execution, delivery, and performance of this Agreement by Developer has been fully authorized by all requisite action on the part of Developer. The person(s) executing this Agreement on behalf of Developer has all requisite power, right, and authority to do so and to bind Developer to this Agreement.
4.3.2 Valid Binding Agreement. This Agreement and all other documents and instruments which have been executed and delivered by or on behalf of Developer pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute legal, valid, and binding obligations of Developer, enforceable against Developer in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, and other laws affecting creditors’ rights, or by application of equitable principles. Developer has no knowledge of any inability to perform its obligations under this Agreement. The execution and delivery of this Agreement by Developer have been duly and validly authorized by all necessary action. No consent, authorization, or approval of, or other action by, and no notice to or filing with any governmental authority, regulatory body, or any other person is required for the execution, delivery, and performance by Developer of this Agreement or any of the terms and covenants herein or therein.
4.3.3 No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant, or other term hereof or thereof, will conflict with or result in a breach of or default under any agreement to which Developer is a party or will result in the creation or imposition of any lien upon any assets or property of Developer, other than liens established in accordance with this Agreement.
4.3.4 Pending Proceedings. Developer has no knowledge of any default under any law or regulation or under any order of any court, arbitrator, board, commission or agency, and there are no known claims, actions, suits, or proceeding pending or, to the knowledge of Developer, threatened against or affecting developer, at law of in equity, before any court, arbitrator, board, commission, or agency which might, if determined adversely to Developer, materially affect Developer’s ability to perform its obligations under this Agreement.
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4.3.5 Development Experience. Developer has significant expertise and a proven track record in the development of other projects similar in nature and scale to the Project, and possesses robust financial resources, skilled personnel, and all necessary resources, in order to successfully develop the Project and fulfill all of its obligations under this Agreement and the Project Approvals in a timely and efficient manner.
4.4 Electricity.
4.4.1 Fair Share Fee. Developer to pay Fair Share Fee, as that term is defined in this Agreement, in effect at the time an application is submitted with IID to install service/meters at each facility.
4.4.2 Land Contribution. Upon City request at any time following the Effective Date of this Agreement, Developer shall dedicate, in fee simple, a +/- 3.0-acre site for future IID substation development at a mutually agreeable location on the Project Site. Developer further agrees to construct required land improvements (grading, access road, walls, etc.) to prepare said +/- 3.0-acre site for a new substation. Developer shall complete said site preparation work no less than six months prior to completion of substation construction. The fair market value of the land and the actual costs incurred by Developer in completing the required site improvements for the substation shall be credited against Developer’s Fair Share Fee obligation, as that term is defined in this Agreement.
ARTICLE 5
OBLIGATIONS OF CITY
5.1 Processing During Third Party Litigation. The filing of any third-party lawsuit(s) against the City or Developer relating to this Agreement, the Project Approvals, or other development issues affecting the Project or the Project Site, shall not delay or stop the development, processing, or construction of the Project or the issuance of Subsequent Approvals unless the third party obtains an injunction or other court order preventing the activity.
5.2 Eminent Domain Powers. City agrees to cooperate with Developer in implementing all of the conditions of all Project Approvals, including but not limited to consideration of the use of its eminent domain powers; provided however that the use of eminent domain shall be in the sole and absolute discretion of City and subject to all applicable legal requirements.
5.3 Reimbursement. Nothing in this Agreement precludes City and Developer from entering into any reimbursement agreements for the portion (if any) of the cost of any dedications, public facilities and/or infrastructure that City may require as conditions of the Project Approvals to the extent that they are in excess of those reasonably necessary to mitigate the impacts of the Project.
5.4 Electricity.
5.4.1 7.5 MVA Reservation. City shall make up to 7.5 megavolt-amperes (“MVA”) available for the first portion of the project to be developed, which is presently
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contemplated to include up to 72,000 square feet of commercial uses and a 128-key hotel or their equivalent from an electrical demand standpoint (“Initial Electricity Phase”). To the extent Developer has unused capacity, and with Developer’s consent, City may buy back up to 2.5 MVA of unused power capacity at the Fair Share Fee rate within the 10-year reservation term.
To the extent that additional capacity exists at the time Developer is prepared to proceed with development beyond the Initial Electricity Phase, as confirmed by IID and City, Developer can request and pay the Fair Share Fee for that additional capacity at the applicable Citywide rate in effect at the time.
5.4.2 Fair Share Fee. The City has adopted a Citywide developer fair-share fee to help fund future electrical infrastructure needs within the City (the “Fair Share Fee”), including a new substation with up to 100 MVA on the Project Site, which substation is subject to potential phasing based on areawide needs. In establishing the Fair Share Fee amount, the City and Indio Electric Financing Authority (“IEFA”) did take into account the actual costs incurred and most current budgets for the initial four IEFA substation projects, as well as the cost of land and site improvements for those facilities (where applicable). The City estimates the Fair Share Fee to be approximately, ________________ _________________________.
5.4.3 Substation Agreement. At the written request of either Developer or City in response to the need to proceed with construction of additional substation capacity to serve the Project or the surrounding area, the Parties will reasonably cooperate in a joint effort to (1) pursue a project agreement between IID and IEFA/City for construction of a new substation with up to 100 MVA on the Project Site to serve the remaining needs of the Project and the City for additional substation capacity, and (2) pursue financing for the substation project from a combination of the Developer’s Fair Share Fee (which could be advancing that fee obligation), available funds from the Fair Share Fee collected from other developments in the City, and any other available funding sources, including but not limited to fair share payments from other benefitted developments. However, in no event shall the City be obligated to use any portion of the proceeds from the bonds previously issued by the IEFA, nor any portion of the adopted Citywide surcharge required to service that debt.
5.4.3.1 If there is a funding shortfall projected for the new substation on the Project Site at the time the parties are ready to execute the IID project agreement, the Developer shall have the right, but not the obligation, to fund some or all of that shortfall to facilitate completion of the substation (the “Developer Advance”). Prior to making the Developer Advance, the Parties shall negotiate in good faith and enter into a reimbursement agreement providing for reimbursement to Developer for all amounts advanced by Developer in excess of its fair share of substation costs from future revenues generated by the Fair Share Fee, other developer fair-share payments, and/or the Citywide surcharge (but only to the extent there are surcharge revenues in excess of what is needed to service the previously issued bonds).
5.4.4 Finance Cooperation. In addition to the terms set forth in Section 3.8.2 of this Agreement, City shall cooperate in the formation of a financing district, such as a CFD, to finance Developer’s obligations to fund public infrastructure improvements and fees, including but not limited to Developer’s fair share portion of the substation costs. To commence CFD formation proceedings, the Developer shall complete and submit the City’s application form and
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pay all costs associated with formation and implementation (which may be subject to reimbursement out of the CFD bond proceeds).
ARTICLE 6
MUTUAL OBLIGATIONS
6.1 Notice of Completion or Revocation. Upon the Parties’ completion of performance or revocation of this Agreement, a written statement acknowledging such completion or revocation, signed by the appropriate agents of City and Developer, shall be recorded in the Office of the Recorder of the County of Riverside, California.
6.2 Estoppel. Each Party hereto shall provide, upon the request of the other Party and within thirty (30) days of such request, a signed estoppel certificate in a reasonable form for the benefit of third parties.
6.3 Good Faith and Fair Dealing. The Parties shall cooperate with each other and act in good faith in complying with the provisions of this Agreement. In their course of performance under this Agreement, the Parties shall cooperate and shall undertake such actions as may be reasonably necessary and appropriate to implement the Project as contemplated by this Agreement.
6.4 Other Necessary Acts. Each Party shall execute, acknowledge, and deliver to the other all further instruments and documents and shall take such further actions as may be reasonably necessary to carry out this Agreement in order to provide and secure to each Party the full and complete enjoyment of its rights and privileges hereunder.
6.5 Compliance with Financing Plan. Developer shall at all times comply with applicable provisions of any Financing Plan and Developer and City shall each at all times comply with their respective obligations under applicable provisions of the Financing Mechanism.
6.6 Regulation by Other Public Agencies. Other public agencies not within the control of City may possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Development Agreement does not limit the authority of such other public agencies. Nevertheless, City shall be bound by, and shall abide by, its covenants and obligations under this Development Agreement in all respects when dealing with any such agency regarding the Property. To the extent that City, the City Council, the Planning Commission or any other board, agency, committee, department or commission of City constitutes and sits as any other board, agency, commission, committee, or department, it shall not take any action that conflicts with City’s obligations under this Agreement.
6.7 Other Governmental Permits and Approvals; Grants. Developer shall apply in a timely manner in accordance with Developer’s construction schedule for the permits and approvals from other governmental or quasi-governmental agencies having jurisdiction over the Project as may be required for the development of, or provision of services to, the Project.
Developer shall comply with all such permits, requirements and approvals. City shall cooperate with Developer in its endeavors to obtain (a) such permits and approvals and shall, from time to
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time, at the request of Developer, attempt with due diligence and in good faith to enter into binding agreements with any such entity to ensure the availability of such permits and approvals, or services, at each stage of the development of the Project; and (b) any grants for the Project for which Developer applies.
ARTICLE 7
ANNUAL REVIEW OF DEVELOPER’S COMPLIANCE
7.1 Procedure. The annual review required by Government Code Section 65865.1 shall be conducted for the purposes and in the manner stated in those laws as further provided herein (“Annual Review”). For purposes of this Article 7, the “Annual Review Date” means each anniversary of the Effective Date, unless another annual review date is established by the City in accordance with Government Code section 65865.1. As part of each Annual Review, Developer must demonstrate good faith compliance with the provisions of the Development Agreement.
7.1.1 Commencement of Process. Not more than sixty (60) days and not less than forty-five (45) days prior to the Annual Review Date, City Manager shall provide Developer with written notice for Developer to provide a letter to the City containing substantial evidence to show compliance with this Agreement. Failure of the City to send such notification shall be deemed to extend the time period in which annual review is required until at least forty five (45) days after such notice is provided. City’s failure to perform an annual review pursuant to the terms of Article 7 shall not constitute or be asserted as a default by Developer. The City Council may, in addition, order a special review of compliance no more than once a year.
7.1.2 Developer Compliance Letter. Not less than thirty (30) days after receipt of the City Manager’s notice, Developer shall submit a letter to the City Manager demonstrating Developer’s good faith compliance with the material terms and conditions of this Development Agreement and shall include in the letter a statement that the letter is being submitted to City pursuant to the requirements of Government Code Section 65865.1.
7.1.3 City Review. Within sixty (60) days after Developer submits its letter, City shall review the information submitted by Developer and all other available evidence on Developer’s compliance with this Agreement. All such other available evidence shall, upon receipt of by the City be made available as soon as possible to Developer.
7.1.4 City Compliance Finding. The City shall schedule the annual review for the next available meeting of the City Council. If the City Council finds that the Developer has so complied, it shall so make such finding.
7.2 Noncompliance and Cure. If City finds that Developer is not in compliance, City must specify in writing to the Developer the respects in which the Developer has failed to comply (“Notice of Default”), and must set forth terms of compliance and specify a reasonable time for the Developer to meet the terms of compliance. The Notice of Default shall specify in detail the nature of the failures in performance that the City claim constitutes material noncompliance, all facts demonstrating substantial evidence of material noncompliance, and the
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manner in which such noncompliance may be satisfactorily cured in accordance with the Development Agreement. In the event that the material noncompliance is an Event of Default pursuant to Article 10 herein, the Parties shall be entitled to their respective rights and obligations under both Articles 7 and 10 herein, except that the particular entity allegedly in default shall be accorded only one of the sixty (60)-day cure periods referred to in Sections 7.2.1 and 10.1 herein.
7.2.1 Cure Period. Unless alleged noncompliance is an immediate threat to public health and safety, City shall grant a cure period of at least sixty (60) days and shall extend the sixty (60) day period if Developer is proceeding in good faith to cure the noncompliance and additional time is reasonably needed for Developer to prosecute such cure to completion. If Developer does not comply with any terms of compliance within the prescribed time limits, this Agreement will be subject to termination or modification by the City as applicable; provided that at the conclusion of the cure period, the City shall either (i) find that Developer is in compliance and refer the matter to the City Council; or (ii) find that Developer is not in compliance and refer the matter to the Planning Commission as specified in Section 7.2.2.
7.2.2 If Developer fails to cure the alleged noncompliance to the City’s reasonable satisfaction during the prescribed cure period and any extensions thereto, the City shall refer the alleged default to the Planning Commission. The City shall prepare a staff report to the Planning Commission which shall include, in addition to Developer’s letter, (i) a demonstration of City’s good faith compliance with the terms and conditions of this Development Agreement, (ii) the Notice of Default, and (iii) a description of any cure undertaken by Developer during the cure period. At least five (5) days prior to any City hearing regarding Developer’s compliance with this Development Agreement, City shall deliver to Developer all staff reports and all other relevant documents pertaining to the hearing. Developer shall have the right to appeal any Planning Commission determination of non-compliance, and upon any unsuccessful appeal to the City Council, to seek judicial review.
7.2.3 Relationship to Default Provisions. The above procedures shall supplement and shall not replace that provision of Section 10 of this Development Agreement whereby either City or Developer may, at any time, assert matters which either Party believes have not been undertaken in accordance with this Development Agreement by delivering a written Notice of Default and following the procedures set forth in said Section 10.
7.3 Effect on Permitted Transferees. If Developer has transferred a portion of the Project to a Permitted Transferee (other than a Developer Affiliate) pursuant to ARTICLE 9 of this Agreement, then the Annual Review shall be conducted separately with respect to each such Permitted Transferee. If such Annual Review results in a final determination that such Permitted Transferee has not complied with this Agreement, such determination and any resulting termination or modification of this Agreement by the City shall be effective only as to the Permitted Transferee to whom the determination is made and the portions of the Project Site in which such Permitted Transferee has an interest. Such Permitted Transferee shall have the right to appeal the City’s determination of non-compliance, as described above. Such a termination or modification shall have no effect on Developer or any other Permitted Transferees which have an ownership interest in the Property, and which are in compliance with this Agreement.
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ARTICLE 8
AMENDMENT; TERMINATION
8.1 Amendment or Termination of Agreement. This Agreement may be amended from time to time or canceled in whole or in part by mutual consent of both Parties in writing in accordance with the provisions of the Development Agreement Legislation. Review and approval of an amendment to this Agreement shall be strictly limited to consideration of only those provisions to be added or modified. All amendments to this Agreement shall automatically become part of the Project Approvals. Notwithstanding the foregoing, no Insubstantial Modification or Operating Memorandum approved pursuant to this Agreement or the approval of a Subsequent Approval pursuant to this Agreement, shall require an amendment to this Agreement. Upon approval, any such amendment shall be deemed to be incorporated automatically into the Project and the Vested Elements under this Agreement (subject to any conditions set forth in the amendment or Subsequent Approval).
8.2 Expiration; Termination
8.2.1 Expiration of Term. Except as otherwise expressly provided in this Agreement, this Agreement shall be deemed terminated and of no further effect upon the expiration of the Term of this Agreement as set forth in Section 1.3; provided however, that such expiration shall not affect any right, duty, or expiration date arising from the Project Approvals (other than this Agreement) and, provided further that such expiration shall not relieve or release Developer from any obligation or liability for any Developer Event of Default arising prior to such expiration. As to any specific lot containing a residential dwelling within the Project, this Agreement shall terminate as to such lot upon the issuance by the City of a certificate of occupancy for the dwelling and the close of escrow of the initial sale of that dwelling.
8.2.2 Survival of Obligations. Upon the expiration or termination of this Agreement as provided herein, neither Party shall have any further right or obligation with respect to the Property under this Agreement except with respect to any obligation that is specifically set forth as surviving the expiration or termination of this Agreement.
8.2.3 Termination by City. Notwithstanding any other provision of this Agreement, City shall not have the right to terminate this Agreement with respect to all or any portion of the Property before the expiration of the Term unless the City complies with all termination procedures set forth in the Development Agreement Legislation and there is an alleged Developer Event of Default and such Developer Event of Default is not cured pursuant to the Agreement and Developer has first been afforded an opportunity to be heard regarding the alleged default before the City Council, and this Agreement is terminated only with respect to that portion of the Property to which the default applies. In the event of such termination by the City, the Project Approvals with respect to such portion of the Property shall automatically terminate and be of no further force or effect notwithstanding any provision to the contrary in the Project Approvals.
8.3 Insubstantial Modifications and Operating Memoranda. The Parties acknowledge that refinements and further development of the Project may demonstrate that
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minor changes are appropriate with respect to the details of the Project development and the performance of the parties under this Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Project development and with respect to those items covered in general terms under this Agreement, and thus desire to provide a streamlined method of approving insubstantial modifications to, or clarifications of the Parties responsibilities and obligations under this Agreement. Therefore, any minor modification or clarification to this Agreement which does not modify (i) the Term of this Agreement; (ii) permitted uses of the Project Site, (iii) maximum density or intensity of use, except as specifically allowed in the Specific Plan, (iv) provisions for the reservation or dedication of land, (v) conditions, terms, restrictions or requirements for subsequent discretionary actions, or (vi) monetary obligations of Developer (hereinafter an “Insubstantial Modification”), and that can be processed under CEQA as exempt from CEQA, or with the preparation of an Addendum to the Project EIR, shall not require a public hearing or City Council approval prior to the parties executing a modification to this Agreement. Either Party may propose an Insubstantial Modification, consent to which shall not be unreasonably withheld, conditioned, or delayed by the other Party. Upon receiving a written request from the Developer for a modification to this Agreement, the City Manager or a designated representative will evaluate the request. The evaluation will consider:
(1) whether the requested modification falls under the definition of an “Insubstantial Modification”; (2) whether the requested modification aligns with Applicable Rules (excluding that portion of this Agreement sought to be modified); and (3) whether the requested modification aligns with the objectives of this Agreement. The City Manager will not unreasonably withhold a decision, but will also ensure the City's interests are adequately protected. If the City Manager or designee determines that the requested modification is an “Insubstantial Modification” that is consistent with Applicable Rules and tends to promote the goals of this Agreement, the proposed modification will be approved by the City as an Insubstantial Modification, and a written modification will be executed by the Parties and attached to this Agreement as an operating memorandum (“Operating Memorandum”). Neither an Operating Memorandum nor an Insubstantial Modification shall be deemed an “amendment” to this Agreement under Government Code Section 65858.
8.4 Amendments to Project Approvals. Notwithstanding any other provision of this Agreement, Developer may seek and City may review and grant amendments or modifications to the Project Approvals (including the Subsequent Approvals) subject to the following (except that the procedures for amendment of this Agreement are set forth in Section 8.1). Project Approvals (except for this Agreement) may be amended or modified from time to time, but only at the written request of Developer (at the City’s discretion, subject to the terms of this Agreement) or with the written consent of Developer (at its sole discretion) and relevant provisions of the City Municipal Code. All amendments to the Project Approvals shall automatically become part of the Project Approvals. The permitted uses of the Property, the intensity of use, the maximum height and size of the proposed buildings, provisions for reservation or dedication of land for public purposes, the conditions, terms, restrictions and requirements for subsequent discretionary actions, the provisions for Public Improvements and financing of Public Improvements, and the other terms and conditions of development as set forth in all such amendments shall automatically become Vested Elements pursuant to this Agreement (subject to any conditions set forth in the amendments) without requiring an amendment to this Agreement. Amendments to the Project Approvals shall be governed by the
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Project Approvals and the Applicable Rules, subject to Section 3.4. City shall not request, process, or consent to any amendment to the Project Approvals that would affect the Property or the Project without Developer’s prior written consent.
8.4.1 Administrative Amendments. Upon the request of Developer for an amendment or modification of any Project Approval, the Community Development Director or his/her designee shall determine: (a) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (b) whether the requested amendment or modification substantially conforms with the material terms of this Development Agreement and the Applicable Rules. If the Community Development Director or his/her designee finds that the requested amendment or modification is both minor and substantially conforms with the material terms of this Development Agreement and the Applicable Rules, the amendment or modification shall be determined to be an “Administrative Amendment,” and the Community Development Director or his/her designee may approve the Administrative Amendment, without public notice or a public hearing (an “Administrative Amendment”). Without limiting the generality of the foregoing, lot line adjustments, reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, changes in trail alignments, variations in the location of structures that do not substantially alter the design concepts of the Project, substitution of comparable landscaping for any landscaping shown on any development plan or landscape plan, variations in the location or installation of utilities and other infrastructure connections and facilities that do not substantially alter design concepts of the Project, amendments to the master sign program, and minor adjustments to a subdivision map or the Property legal description shall be deemed to be minor amendments or modifications.
Any request of Developer for an amendment or modification to a Project Approval that is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Rules, including the Unified Development Code, and this Agreement.
ARTICLE 9
TRANSFER AND ASSIGNMENT; RELEASE; RIGHTS OF MORTGAGEES;
CONSTRUCTIVE NOTICE
9.1 Right to Assign. Developer shall have the right to sell, assign or transfer (“Transfer”) in whole or in part its rights, duties and obligations under this Development Agreement, to any person or entity at any time during the Term of this Development Agreement without the consent of City; provided, however, in no event shall the rights, duties and obligations conferred upon Developer pursuant to this Development Agreement be at any time so Transferred except through a transfer of the Property. In the event of a transfer of a portion of the Property, Developer shall have the right to Transfer its rights, duties and obligations under this Development Agreement that are applicable to the transferred portion, and to retain all rights, duties and obligations applicable to the retained portions of the Property. Upon Developer’s request, City shall cooperate with Developer and any proposed transferee to identify completed obligations and allocate rights, duties and obligations under this Development Agreement and the Project Approvals among the transferred Property and the retained Property.
Within ten (10) business days of the closing of any Transfer of the Property, or a portion thereof, Developer shall provide City with a copy of the executed Assignment and Assumption
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Agreement between the Developer and assignee, the form of which is attached hereto as Exhibit F.
9.2 Release Upon Transfer. Upon the Transfer of Developer’s rights and interests under this Development Agreement pursuant to Section 9.1, Developer shall automatically be released from its obligations and liabilities under this Development Agreement with respect to that portion of the Property transferred, and any subsequent default or breach with respect to the Transferred rights and/or obligations shall not constitute a default or breach with respect to the retained rights and/or obligations under this Development Agreement, provided that (i) Developer has provided to City written notice of such Transfer, and (ii) the transferee executes and delivers to City a written agreement in which (a) the name and address of the transferee is set forth and (b) the transferee expressly and unconditionally assumes all of the obligations of Developer under this Development Agreement with respect to that portion of the Property transferred. Upon any transfer of any portion of the Property and the express assumption of Developer’s obligations under this Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way Developer’s rights hereunder with respect to any portion of the Property not owned by such transferee. The transferor and the transferee shall each be solely responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferor/transferee, and any amendment to this Agreement between City and a transferor or a transferee shall only affect the portion of the Property owned by such transferor or transferee. Failure to deliver a written Assignment and Assumption Agreement hereunder shall not affect the running of any covenants herein with the land, as provided in Section 9.3 below, nor shall such failure negate, modify or otherwise affect the liability of any transferee pursuant to the provisions of this Development Agreement.
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9.3 Covenants Run With the Land. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Development Agreement shall be binding upon the Parties and their respective successors (by merger, reorganization, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all of the persons or entities acquiring the Property or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the Parties and their respective successors (by merger, consolidation or otherwise) and assigns. All of the provisions of this Development Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder (i) is for the benefit of such Property and is a burden upon such Property, (ii) runs with such Property, (iii) is binding upon each Party and each successive owner during its ownership of such Property or any portion thereof, and (iv) each person or entity having any interest therein derived in any manner through any owner of such Property, or any portion thereof, and shall benefit the Property hereunder, and each other person or entity succeeding to an interest in such Property.
9.4 Rights of Mortgagees; Not Obligated to Construct; Right to Cure Default.
9.4.1 Mortgagee Protection. This Agreement shall not prevent or limit Developer in any manner, at Developer’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust, or other security device securing financing with respect to the Property (“Mortgage”). This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording this Agreement, including the lien of any Mortgage. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and inure to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise.
9.4.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 9.4.1, no Mortgagee (including a Mortgagee who obtains title to Developer’s interest in the Property or the Project or any portion thereof as a result of foreclosure proceedings or transfer in lieu of foreclosure) shall in any way be obligated by the provisions of this Agreement to construct or complete the Project, unless the Mortgagee expressly assumes such obligation by written notice to City or by written agreement with City. Nothing in this Agreement shall be deemed to construe, permit, or authorize any such Mortgagee to devote the Property or the Project or any portion thereof to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Agreement, or by the Project Approvals and Applicable Rules, and only to the extent Mortgagee complies with the terms of this Agreement and executes and delivers to the City, in a form and with terms reasonably acceptable to City, an assumption agreement of Developer’s obligations hereunder.
9.4.3 Notice of Default to Mortgagee, Right of Mortgagee to Cure. If City timely receives a notice from a Mortgagee requesting a copy of any Notice of Default given to
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Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by the City that Developer has committed a default, and if the City makes a determination of noncompliance hereunder, City shall likewise serve notice of such noncompliance on such Mortgagee concurrently with service thereof on Developer. If Developer does not cure or remedy the claimed default within the applicable cure period set forth in this Agreement, then City shall provide notice of such (“Developer Non-Cure Notice”) to each Mortgagee who has previously made a written request to the City therefore. Each such Mortgagee shall (insofar as the rights of the City are concerned) have the right, at its option, to cure or remedy or commence to cure or remedy any such default within (a) fifteen (15) days (with respect to monetary defaults only) after receipt of the Developer Non-Cure Notice, or (b) sixty (60) days (with respect to non-monetary defaults), after receipt of the Developer NonCure Notice unless a further extension of time to cure is granted in writing by City. In case of a default which is not susceptible of being cured by such Mortgagee (including a bankruptcy of Developer), such Event of Default does not have to be cured. If a Mortgagee is required to obtain possession of the Property (or a portion thereof) in order to cure or remedy any claimed Event of Default, the time to cure shall be tolled so long as the Mortgagee is attempting in good faith to obtain possession, including by appointment of a receiver or foreclosure, and the Mortgagee shall be deemed to have timely cured or remedied the claimed Event of Default, provided the Mortgagee commences the proceedings necessary to obtain possession within sixty (60) days after receipt of the Developer Non-Cure Notice, diligently pursues such proceedings to completion, and after obtaining possession diligently completes such cure or remedy.
9.4.4 Limitation of Liability. No Mortgagee shall be liable or obligated to perform the obligations of Developer under this Development Agreement unless and until such Mortgagee becomes the owner of Developer’s interest in the Property by foreclosure, assignment, transfer in lieu of foreclosure, or otherwise or except to the extent such Mortgagee undertakes to perform and continues to perform Developer’s obligations hereunder. Thereafter, such Mortgagee and its successors and assigns shall each remain liable for the obligations of Developer only so long as such Mortgagee or its successors or assigns is the owner of Developer’s interest in the Property. Any such Mortgagee shall be entitled to all of the rights and privileges of Developer under this Development Agreement and shall have the right to assign in the same manner as the Developer.
9.5 Constructive Notice. Every person or entity who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Project or the Project Site and undertakes any development activities at the Project Site is, and shall be, constructively deemed to have consented and agreed to, and is obligated by, all of the terms and conditions of this Agreement, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project or the Project Site.
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ARTICLE 10
ENFORCEMENT OF AGREEMENT; REMEDIES FOR DEFAULT; DISPUTE
RESOLUTION
10.1 Events of Default. Subject to any extensions of time by mutual consent of the Parties, in writing, and subject to the provisions of Section 11.6 regarding Permitted Delays and a Mortgagee’s right to cure pursuant to Section 9.4, any failure by either Party (a “Defaulting Party”) to perform any material term or provision of this Agreement shall constitute an event of default by the Defaulting Party (“Event of Default”) (i) if such Defaulting Party does not cure such failure within sixty (60) days (such sixty (60) day period is not in addition to any sixty (60) day cure period under Section 7.2, if Section 7.2 is applicable) following written notice of default from the other Party (“Notice of Default”), where such failure is of a nature that can be cured within such sixty (60) day period, or (ii) if such failure is not of a nature which can be cured within such sixty (60) day period, the Defaulting Party does not within such sixty (60) day period commence efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion such cure. Any Notice of Default given hereunder shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the Event of Default, all facts constituting substantial evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the Defaulting Party shall not be considered to be in default for purposes of (a) termination of this Agreement, (b) institution of legal proceedings with respect thereto, or (c) issuance of any Subsequent Approval with respect to the Project. The waiver by either Party of any Event of Default under this Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Agreement.
10.2 Meet and Confer. During the time periods specified in Section 10.1 for cure of a failure of performance, the Parties shall meet and confer in a timely and responsive manner, in person and with the participation of the City Manager and Developer representatives that include the division president or vice-president of land (or equivalent leadership positions) and the project manager, to attempt to resolve any matters prior to litigation or other action being taken, including without limitation any action in law or equity; provided, however, nothing herein shall be construed to extend the time period for this meet and confer obligation beyond the sixty (60) day cure period referred to in Section 10.1 (even if the sixty (60) day cure period itself is extended pursuant to Section 10.1(ii)) unless the Parties agree otherwise in writing. The inability of the Parties to timely meet and confer or to resolve any matter pursuant to this Section 10.2 shall not be deemed an Event of Default hereunder, provided that the Parties have made good faith efforts to meet, confer, and resolve the matter.
10.3 Remedies and Termination. If, after notice and expiration of the cure periods and procedures set forth in Sections 10.1 and 10.2 (subject to the provisions of Section 10.2), the alleged Event of Default is not cured, the non-Defaulting Party, at its option, may institute legal proceedings pursuant to Section 10.4 and/or terminate this Agreement pursuant to Section 8.2.3 or Section 10.4.2 (as applicable). In the event that this Agreement is terminated pursuant to Section 8.2.3 or Section 10.4.2 and litigation is instituted that results in a final decision that such
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termination was improper, then this Agreement shall immediately be reinstated as though it had never been terminated.
10.4 Legal Action by Parties.
10.4.1 Remedies. Either Party may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any Event of Default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the Parties hereto, or obtain any remedies consistent with the purpose of this Development Agreement. Without limiting the foregoing, in the event of a Developer Event of Default (that is not timely cured in accordance with Section 10.1), City may cease and terminate all processing of any applications for Subsequent Approvals. All remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of these remedies shall not constitute a waiver or election with respect to any other available remedy.
10.4.2 Limited Damages. Except as expressly set forth in this Section 10.4.2, neither Party shall be liable in damages for any default under this Agreement, it being expressly understood and agreed that, except as set forth below, the sole legal remedy available to either Party for a breach or violation of this Development Agreement by the other Party shall be an action in mandamus, specific performance, or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party or to terminate this Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of money from the other Party pursuant to any of the following: (a) to make any payment due for the New Substation; (b) to make any payment due under any indemnity in this Agreement; (c) to advance or reimburse monies required under this Agreement; or (d) to pay attorneys’ fees and costs as set forth in Section 10.5 or when required by an arbitrator or a court with jurisdiction. In no event shall either Party be liable hereunder for any consequential, special, or punitive damages. Notwithstanding anything to the contrary contained in this Agreement, in no event shall: (a) any partner, officer, director, member, shareholder, employee, affiliate, manager, representative, or agent of Developer be personally liable for any breach of this Agreement by Developer or for any amount which may become due to the City under the terms of this Agreement; or (b) any board, commission, department, member, commissioner, officer, agent, or employee of the City be personally liable for any breach of this Agreement by City or for any amount which may become due to Developer under the terms of this Agreement.
10.4.3 Effects of Litigation. In the event that litigation is timely instituted and a final judgment is obtained that invalidates this Development Agreement in its entirety, then Developer shall have no further obligations under this Development Agreement except for any obligations that expressly survive termination or expiration under this Development Agreement.
In the event that any payment(s) have been made by or on behalf of Developer to City pursuant to the obligations contained in this Agreement, City shall give to Developer a refund of the monies remaining in any segregated City account into which such payment(s) were deposited, if any, along with interest which has accrued, if any. To the extent the payment(s) made by or on behalf of Developer were not deposited, or no longer are, in the segregated City account, City
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shall give Developer a credit for the amount of said payment(s), along with interest, if any, that has accrued, which credit may be applied by Developer to any costs or fees imposed by City on Developer in connection with construction or development within or outside the Property.
Developer shall be entitled to use all or any portion of the credit at its own discretion until such time as the credit has been depleted. Any credits due to Developer may, at Developer’s own discretion, be transferred by Developer to a third party for application by said third party to any costs or fees imposed by City on the third party in connection with construction or the development of property within City, whether or not related to the Project. In the event that Developer has already developed or is developing a portion of the Project at the time of any invalidation of the Development Agreement, then any such refund or credit shall be limited to the amount paid by Developer that exceeds, on a pro rata basis, the proportion and uses of the Property retained by Developer to the entire Property.
10.5 Attorneys’ Fees. Should any legal action be brought by either Party against the other for default under this Agreement or to enforce or interpret any provision hereof, the Party prevailing in such action shall be entitled to recover against the non-prevailing Party its reasonable attorneys’ fees and costs incurred in such action. The provisions of this Section 10.5 shall survive the expiration or termination of this Agreement.
10.6 No Waiver. No waiver of any provision of this Agreement shall be binding unless executed in writing by the Party making the waiver. No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver unless the written waiver so specifies.
Except as otherwise expressly provided in this Agreement, any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, nor shall it deprive any such Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert, or enforce any such rights or remedies.
10.7 Deposit for Non-Litigation Related City Expenses. Due to the scope and size of the Project, the Parties acknowledge and agree that certain non-litigation related expenses may arise that require the expenditure of City staff time and resources. Accordingly, Developer shall deposit with the City the sum of Thirty Thousand Dollars ($30,000) (the “Initial Deposit”), which shall be used to cover City staff time and administrative costs associated with the Project, including but not limited to responding to requests made pursuant to the California Public Records Act, responding to inquiries related to the Project, and performing other similar administrative functions. The City shall maintain the Initial Deposit in a segregated account designated solely for staff time and administrative expenses associated with the Project (the “Deposit Account”). City staff shall maintain records of the time expended on such non-litigation related matters and shall charge the Deposit Account accordingly. The City shall provide a detailed record of time expended, and associated City costs billed to the Deposit Account, upon request of Developer. The City shall no longer draw from the Deposit Account thirty (30) days after the running of any statutes of limitations related to the Project Approvals specified in Recital C, and shall return any remaining funds to Developer, without interest.
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ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Entire Agreement. This Agreement, including the preamble paragraph, Recitals, and Exhibits constitute the entire understanding and agreement between the Parties with respect to the subject matter of this Agreement.
11.2 Binding Covenants; Run With the Land. All of the provisions, agreements, rights, powers, standards, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective successors (by merger, reorganization, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all of the persons or entities acquiring the Property or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns. All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including but not limited to, Section 1468 of the Civil Code of the State of California.
11.3 Applicable Law and Venue. This Agreement has been executed and delivered in and shall be interpreted, construed, and enforced in accordance with the laws of the State of California, without reference to any of its conflict of laws principles. All rights and obligations of the Parties under this Agreement are to be performed in the County of Riverside. The exclusive venue for any disputes or legal actions hereunder or arising out of or in connection with this Agreement shall be the Superior Court of California in and for the County of Riverside and all Parties waive their respective rights to change venue pursuant to Section 394 of the Code of Civil Procedure.
11.4 Construction of Agreement. The Parties have mutually negotiated the terms and conditions of this Agreement and its terms and provisions have been reviewed and revised by legal counsel for both City and Developer. Accordingly, no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Agreement. Language in this Agreement shall be construed as a whole and in accordance with its true meaning. As used herein: (a) the singular shall include the plural (and vice versa) and the masculine or neuter gender shall include the feminine gender (and vice versa) where the context so requires; (b) locative adverbs such as “herein,” “hereto,” “hereof,” and “hereunder” shall refer to this Agreement in its entirety and not to any specific section or paragraph; (c) the terms “include,” “including,” and similar terms shall be construed as though followed immediately by the phrase “but not limited to;” (d) “shall” and “must” are mandatory and “may” is permissive; and (e) “or” is not necessarily exclusive. Each reference in this Agreement to this Agreement shall be deemed to refer to this Agreement as amended from time to time pursuant to the provisions of this Agreement, as applicable, whether or not the particular reference refers to such possible amendment.
11.5 Project Is a Private Undertaking; No Joint Venture or Partnership. The development proposed to be undertaken by Developer on the Project Site is a private development, except for that portion to be devoted to Public Improvements to be constructed by
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Developer. Developer is not a state or governmental actor with respect to any activity conducted by the Developer hereunder. City has no interest in, responsibility for, or duty to third persons concerning any of said Improvements. Nothing in this Agreement, in any actions or negotiations leading to this Agreement, in any acts or omissions under this Agreement, or otherwise is intended to or does establish the City and Developer as partners, co-venturers, or principal and agent with one another.
11.6 Force Majeure. Subject to the limitations set forth below, performance by any Party of its obligations hereunder shall be excused and the required date for performance thereof shall be extended day for day during any period of “Permitted Delay” as hereinafter defined, subject, however, to the requirement that Developer must promptly communicate with the City concerning the delay and provide reasonable documentation of Developer’s good faith efforts to diligently pursue performance as required under this Agreement. For purposes hereof, Permitted Delay shall mean delay beyond the reasonable control and without the fault of the Party claiming the delay (and despite the good faith efforts of such Party) first arising after the Effective Date (except for item (xii) below) including, but not limited to: (i) acts of God; (ii) civil commotion; (iii) riots; (iv) strikes, picketing, or other labor disputes; (v) shortages of materials or supplies; (vi) damage to work in progress by reason of fire, floods, earthquake, or other casualties; (vii) an Event of Default of the other Party; (viii) restrictions imposed or mandated by any regulatory authorities, utility providers, or other public agencies, or delays in obtaining any Third-Party Agency Approvals; (ix) enactment of conflicting state or federal laws or regulations, (x) judicial decisions or similar legal incapacity to perform, (xi) epidemics and pandemics, including COVID 19-induced restrictions on the ability of any Party to perform its obligations of this Agreement; (xii) litigation brought by a third party attacking the validity of this Agreement; and (xiii) delays caused by the gross negligence or willful misconduct of the City.
11.7 Recordation. Pursuant to Section 65868.5 of the Development Agreement Statute the City shall cause this Agreement to be recorded with the Riverside County Recorder within ten (10) days after execution of the Agreement or any amendment thereto, with costs to be borne by Developer.
11.8 Signature in Counterparts. This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original, and all of which when taken together shall constitute one and the same instrument.
11.9 Computation of Time; Time of the Essence. All references in this Agreement to “days” shall mean calendar days unless expressly referred to as “business days.” The time in which any act is to be done under this Agreement is computed by excluding the first day, and including the last day, unless the last day is a Saturday, Sunday, or holiday, and then that day is also excluded. If the day for performance of any obligation under this Agreement is a Saturday, Sunday, or holiday, then the time for performance of that obligation shall be extended to the first following day that is not a Saturday, Sunday, or holiday under the laws of California.
11.10 Notices. Any notice, demand, or other communication required to be given by Developer or City pursuant to this Agreement shall be in writing and shall be sufficiently given if (a) addressed as set forth below and (b) delivered in one of the following ways, and shall be
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deemed to have been delivered or received (i) three (3) days after the date when deposited in the United States registered or certified mail, return receipt requested, with postage prepaid (except in the event of a postal disruption, by strike or otherwise, in the United States), (ii) when personally delivered, (iii) when sent by electronic means, provided receipt was promptly confirmed in writing by another means of notice allowed in this Section 11.10 within one (1) business day, or (iv) one business day after the date deposited with a nationally recognized courier service (e.g., Federal Express) for next day delivery. The current principal office addresses and email addresses of the City and Developer are as follows:
To City: City of Indio
100 Civic Center Mall
Indio, California 92201
Attn: Bryan Montgomery
E-mail: [email protected]
With a copy to: Cole Huber LLP
2855 E Guasti Rd
Suite 402
Ontario, CA 91761
Attn: Steven Graham Pacifico
E-mail: [email protected]
To Developer: BH Indio Land, LLC
11111 Santa Monica Blvd.
Suite 600
Los Angeles, CA 90025
Attention: Jim Brooks
E-mail: [email protected]
With a copy to: Cox, Castle & Nicholson LLP
3121 Michelson Drive
Suite 200
Irvine, CA 92612
Attn: Sean Matsler
E-mail: [email protected]
Either Party to this Agreement may at any time, upon written notice delivered via certified mail or email to the other Party, designate any other person or address in substitution of the person and address to which such notice or communication shall be given. If failure to respond to a specified notice, request, demand, or other communication within a specified period would result in a deemed approval, a conclusive presumption, a prohibition against further action or protest, or other adverse result specifically provided under this Agreement, the notice, request, demand, or other communication shall state clearly and unambiguously on the first page, with reference to the applicable provisions of this Agreement, that failure to respond in a timely manner could have a specified adverse result.
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11.11 No Third Party Beneficiaries. This Agreement and all provisions hereof is made and entered into for the sole protection and benefit of City, Developer, and their successors and assigns. No other person shall have right of action based upon any provision in this Agreement.
11.12 Conflict of Interest. No member, official, or employee of City shall make any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership, or association in which he or she is directly or indirectly interested.
11.13 Severability. If any term, provision, covenant, or condition of this Agreement or its application to any Party or circumstance is held by a court of competent jurisdiction to be invalid, void, or unenforceable to any extent, the remaining provisions of this Agreement or the application of the term, provision, condition, or covenant to persons or circumstances other than those as to whom or which it is invalid or unenforceable, shall not be affected and shall continue in full force and effect to the fullest extent permitted by law, unless enforcement of the remaining portions of the Agreement would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement.
11.14 Further City Actions. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent, request, waiver, or other action by the City is required or permitted under this Agreement, such action may be given, made, or taken by the City Manager, or his/her designee. The City Manager, or his/her designee is authorized to execute and deliver, on behalf of the City and to take any action necessary or desirable to effectuate the provisions and intent of this Agreement.
11.15 Non-Intended Prevailing Wage Requirements. Nothing in this Development Agreement shall in any way require, or be construed to require, Developer to pay prevailing wages with respect to any work of construction or improvement within the Project (a “NonIntended Prevailing Wage Requirement”). But for the understanding of the Parties as reflected in the immediately preceding sentence, the Parties would not have entered into this Development Agreement based upon the terms and conditions set forth herein. Developer and City have made every effort in reaching this Development Agreement to ensure that its terms and conditions will not result in a Non Intended Prevailing Wage Requirement. These efforts have been conducted in the absence of any applicable existing judicial interpretation of which the Parties are aware that would indicate that the terms and conditions of this Agreement would result in a Non-Intended Prevailing Wage Requirement. If, despite such efforts, any provision of this Development Agreement shall be determined by the Department of Industrial Relations, the Labor and Workforce Development Agency, or any court of competent jurisdiction to result in a Non Intended Prevailing Wage Requirement, such determination shall not invalidate or render unenforceable any provision hereof; provided, however, that the Parties hereby agree that, in such event, at the election of Developer in its sole and absolute discretion, this Development Agreement shall be reformed such that each provision of this Development Agreement that results in the Non Intended Prevailing Wage Requirement will be removed from this Development Agreement as though such provisions were never a part of the Development Agreement, and, in lieu of such provision(s), replacement provisions shall be added as a part of this Development Agreement as similar in terms to such removed provision(s) as may be
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possible and legal, valid and enforceable but without resulting in the Non Intended Prevailing Wage Requirement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
DEVELOPER:
BH Indio Land, LLC, a California limited liability
company
By:________________________________
Jim Brooks, President
CITY:
CITY OF INDIO, a California
municipal corporation
By:_________________________________
Name: Bryan Montgomery
Title: City Manager
ATTEST:
________________________
Cynthia Hernandez
City Clerk
APPROVED AS TO FORM
COLE HUBER LLP
________________________
Steven Graham Pacifico
City Attorney
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Exhibit A
Legal Description of Property
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Exhibit B
Depiction of Property
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Exhibit C
Public Benefits
All terms not defined herein shall have the meaning ascribed to them in the Development Agreement to which this Exhibit C is attached to and a part thereof.
City has determined that the Project presents certain public benefits and opportunities that are advanced by City and Developer entering into this Agreement.
1. Affordable Housing. Developer will reserve 5% Project’s “base density” units for either (a) senior, age-restricted housing or (b) “moderate income” households (those households earning 80-120% of Area Median Income). The term “base density” means the units proposed, excluding any density bonus unit added pursuant to the Density Bonus Law.
2. Contribution to Monroe Street/Interstate 10 Interchange. Developer will pay to City a monetary contribution towards the Monroe Street/Interstate 10 Interchange Improvement Project (“Interchange Project”) not to exceed $3,500,000 (“Developer’s Interchange Project Contribution”). Developer’s Interchange Project Contribution shall be paid in three phases, as follows: (a) 50% upon the Effective Date of the Development Agreement or when the Interchange Project construction contract is awarded, whichever is later; (b) 25% upon issuance of the first building permit in furtherance of the Project; and (c) 25% upon issuance of the Project’s first certificate of occupancy. The Parties expressly acknowledge that Developer’s Interchange Project Contribution shall be Developer’s sole and exclusive obligation with respect to the Interchange Project.
a. City/County of Riverside Easement Payment. The City and/or County of Riverside will pay to Developer the appraised fair market value for any road right-of-way easement, slope and drainage easement, and temporary construction easement required for the Interchange Project.
b. City Drainage Easement. The drainage easement granted by Developer to City, pursuant to Section 2(a), above (“Drainage Easement”), for which payment is required, shall allow for surface rights and uses consistent with the Project (such as parking and landscaping improvements). To the maximum extent practical, the City shall cooperate to allow site planning to keep the Drainage Easement within parking areas to avoid curb and gutter impacts. The City acknowledges that Planning Area 3 of the Project may be allowed to reduce landscape requirements to achieve these results. The end user of the surface rights associated with the project shall be responsible for replacing or restoring any surface improvements if the City needs to perform repairs or upgrades to the storm drain line and its components within the Drainage Easement.
3. Parkland. Developer will dedicate an approximately three (3) acre park (“Park”) located at the westerly edge of the Property, adjacent to Thousand Palms Stormwater Channel. The
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City will credit Developer for the appraised value of the Park dedication against the Project’s park fee obligation under the Indio Municipal Code or Indio Development Code.
4. Public Safety Contribution. Developer will reserve a facility space (ranging from 1,000 – 1,500 square feet) for a potential police substation within any future inline retail space, if an when built. Any such space shall be a basic shell, without any tenant improvements (which shall entirely be the obligation of the City). Developer will also, independent of the substation obligation, annex into and contribute to the Indio Public Safety Community Facilities District.
5. Potential Medical Clinic. Developer shall use all best practices and commercially reasonable marketing efforts to identify, secure, and retain a qualified tenant for a medical clinic facility located within the Project. Developer’s efforts shall include, but not be limited to, targeted marketing campaigns, listing the property on appropriate commercial real estate platforms, leveraging industry and medical sector contacts, conducting site tours, negotiating lease terms consistent with market standards, and coordinating with local brokers and medical associations. Developer shall also proactively engage in tenant retention strategies, including regular communication, resolution of tenant concerns, and period lease reviews to encourage long-term occupancy of any medical clinic facility.
6. Annual Job Fair. Developer shall host an annual job fair when the first employers is onsite and advertise at local colleges with the goal of hiring no less than 10% City of Indio residents.
7. Indio Address. Developer will use commercially reasonable efforts to designate a City of Indio address for all major purchases/procurement related to the development of the Project.
This obligation shall not be assigned to buyers, tenants, users, or other successors or assignees.
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Exhibit D
Existing Development Fees
(City of Indio 2024 Fee Schedule)
Park Improvements
Residential – Single Family: $2,972 Per Dwelling Unit
Residential – Condo/Townhouse: $2,625 Per Dwelling Unit Residential – Apartment: $2,625 Per Dwelling Unit
Commercial – Retail: Not Applicable
Commercial – Office: Not Applicable
Industrial: Not Applicable
Fire Facilities
Residential – Single Family: $505 Per Dwelling Unit
Residential – Condo/Townhouse: $446 Per Dwelling Unit
Residential – Apartment: $446 Per Dwelling Unit
Commercial – Retail: $570.75 Per 1,000 Gross Sq. Ft. of Building Area Commercial – Office: $409.25 Per 1,000 Gross Sq. Ft. of Building Area Industrial: $164 Per 1,000 Gross Sq. Ft. of Building Area Police Facilities
Residential – Single Family: $1,289 Per Dwelling Unit
Residential – Condo/Townhouse: $1,138 Per Dwelling Unit Residential – Apartment: $1,138 Per Dwelling Unit
Commercial – Retail: $1,485.50 Per 1,000 Gross Sq. Ft. of Building Area Commercial – Office: $1,051.25 Per 1,000 Gross Sq. Ft. of Building Area Industrial: $450 Per 1,000 Gross Sq. Ft. of Building Area Public Buildings
Residential – Single Family: $1,968 Per Dwelling Unit
Residential – Condo/Townhouse: $1,739 Per Dwelling Unit Residential – Apartment: $1,739 Per Dwelling Unit
Commercial – Retail: $2,321.50 Per 1,000 Gross Sq. Ft. of Building Area Commercial – Office: $1,617.25 Per 1,000 Gross Sq. Ft. of Building Area Industrial: $742 Per 1,000 Gross Sq. Ft. of Building Area Roads and Bridges
Residential – Single Family: $2,451 Per Dwelling Unit
Residential – Condo/Townhouse: $1,386 Per Dwelling Unit Residential – Apartment: $1,386 Per Dwelling Unit
Commercial – Retail: $8,030.75 Per 1,000 Gross Sq. Ft. of Building Area Commercial – Office: $2,515.25 Per 1,000 Gross Sq. Ft. of Building Area Industrial: $1,420 Per 1,000 Gross Sq. Ft. of Building Area Traffic Signals
Residential – Single Family: $302 Per Dwelling Unit
Residential – Condo/Townhouse: $171 Per Dwelling Unit
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Residential – Apartment: $171 Per Dwelling Unit
Commercial – Retail: $1,115 Per 1,000 Gross Sq. Ft. of Building Area Commercial – Office: $351 Per 1,000 Gross Sq. Ft. of Building Area Industrial: $192 Per 1,000 Gross Sq. Ft. of Building Area Drainage Fee (Per Acre)
Residential – Single Family: $2,764 Per Dwelling Unit
Residential – Condo/Townhouse: $4,146 Per Dwelling Unit Residential – Apartment: $4,146 Per Dwelling Unit
Commercial – Retail: $4,976 Per 1,000 Gross Sq. Ft. of Building Area Commercial – Office: $4,976 Per 1,000 Gross Sq. Ft. of Building Area Industrial: $4,976 Per 1,000 Gross Sq. Ft. of Building Area Water Improvements and Meter Sizes
Residential – Single Family: 3/4” x 1” Meter; $4,030
Residential – Condo/Townhouse: 3/4” x 1” Meter; $4,030
Residential – Apartment: 3/4” x 1” Meter; $4,030
Industrial and Commercial – Retail and Office: 1” Meter; $6,717 Industrial and Commercial – Retail and Office: 1.5” Meter; $13,342 Industrial and Commercial – Retail and Office: 2” Meter; $21,495 Industrial and Commercial – Retail and Office: 3” Meter; $46,914 Industrial and Commercial – Retail and Office: 4” Meter; $78,636 Industrial and Commercial – Retail and Office: 6” Meter; $154,694 Industrial and Commercial – Retail and Office: 8” Meter; $180,123
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Exhibit E
Fee Credits
The Developer shall be entitled to Fee Credits for any “non-mandatory” improvements, consistent with this exhibit:
1. $40 per linear foot of off-site curb/gutter improvements.
2. $6 per square foot of AC paving over base.
3. $6 per square foot for concrete sidewalks.
4. $125 per linear foot for water main construction.
5. $100 per linear foot for sewer main construction.
6. $200 per linear foot for storm drain construction.
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Exhibit F
Form: Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION OF RIGHTS AND OBLIGATIONS:
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF INDIO AND BH
INDIO LAND, LLC
This Assignment and Assumption of Rights and Obligations: Development Agreement By and Between the City of Indio and BH Indio Land, LLC (“Assignment Agreement”) is entered into as of ________, 20__ (the “Effective Date”), by BH Indio Land, LLC a California limited liability corporation (“BH”), and ___________________ (“Assignee”).
Recitals
A. BH entered into that certain Development Agreement (“DA”), dated ______, 2026, by and between the City of Indio (“City”) and BH for certain real property consisting of approximately 183 acres located in the City, as more particularly described in Exhibit A (the “Property”).
B. The DA, together with the Project Approvals (as that term is defined in the DA), contemplate a comprehensive plan for development of the Property (the “Project”) and outline the associated rights and obligations of HCO as Developer (as that term is defined in the DA).
C. BH has conveyed [ALL/A PORTION] of its interest in the Property, as described in Exhibit B and as depicted on Exhibit C, to Assignee (“Transferred Property”).
D. This Assignment Agreement is entered into pursuant to, and is intended to fulfill the requirements of, Article 9 of the DA.
E. The parties wish to convey certain rights and obligations under the DA in conjunction with the Transferred Property, as those rights and obligations are described in this Assignment Agreement.
Agreement
1. Transferred Property. This Assignment Agreement pertains to and is limited the Transferred Property.
2. Assignment of Rights and Obligations. In connection with the conveyance of the Transferred Property, BH assigns, and Assignee accepts and assumes, the following rights and obligations of the DA and Project Approvals: [MODIFY LIST AS NECESSARY] a. BH’s vested right to seek entitlements for development of the Transferred Property, consistent with the Specific Plan.
b. The right to the following fee credits: [INSERT AS NECESSARY OR OMIT]
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c. Assignee expressly and unconditionally agrees to assume all duties and obligations of BH under the DA remaining to be performed with respect to the Transferred Property on the Effective Date of this Assignment Agreement.
3. Execution. BH and Assignee have signed this Assignment Agreement on the dates indicated below next to their respective signatures.
4. Counterparts. This Assignment Agreement may be executed by each party on a separate signature page, and when the executed signature pages are combined, shall constitute one single instrument.
BH:
BH Indio Land, LLC, a California limited liability
corporation
By: ___________________________
Name: ___________________________
Its: ___________________________
Date: ____________________________
Assignee:
By: __________________________
Name: ___________________________
Its: ___________________________
Date: ____________________________
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RESOLUTION NO. 10613
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF INDIO, CALIFORNIA, CONDITIONALLY APPROVING
FINANCING TENTATIVE PARCEL MAP NO. 38799
(PLAN-TPM-23-0001) TO DIVIDE APPROXIMATELY 183
ACRES INTO FOUR PARCELS FOR FINANCING AND
CONVEYANCE PURPOSES FOR THE OASIS AT INDIO
PROJECT
WHEREAS, on September 8, 2023, an application was submitted on behalf of BH Indio Land, LLC for Financing Tentative Parcel Map No. 38799 to divide approximately 183 acres north of Interstate 10, south of Avenue 42, east of the Thousand Palms Stormwater Channel, and west of Monroe Street into four parcels, as shown in Exhibit A; the property is identified by Assessor’s Parcel Nos. 610-020-001, 610-020-010, 610- 020-012, 610-020-013, 610-020-021, 610-020-034, and 610-020-036; and WHEREAS, the site has General Plan land use designations of Mixed Use Neighborhood (MUN), Regional Commercial (RC), and Zoning districts of Mixed-Use Neighborhood (MUN), Specific Plan (MU-SP) and Regional Commercial (RC); and WHEREAS, the Project is consistent with and intended to implement the vision of the General Plan 2040 and the Oasis at Indio Specific Plan, pertaining to land use patterns, development regulations, circulation and mobility, building and site design standards, administration/implementation, infrastructure and utilities improvements, and public services; and
WHEREAS, the City prepared an Environmental Impact Report for the entire Oasis at Indio Project, including the financing subdivision, and the Council has considered that analysis before approving the map; and
WHEREAS, Government Code sections 66473.5 and 66474 require consideration of plan consistency, subdivision design, physical suitability, environmental and publichealth effects, and public access and use easements; the Council has evaluated the map as conditioned under the governing standards; and
WHEREAS, notice of the public hearing was published on August 27, 2026, and mailed on August 28, 2026, as described in the notice materials in the administrative record; and
WHEREAS, on May 27, 2026, and June 10, 2026, the Planning Commission held public hearings, considered the Project and environmental materials, and recommended denial; the City Council has independently considered that advisory recommendation and the evidence supporting and opposing the Project; and
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WHEREAS, on September 16, 2026, the City Council held a duly noticed public hearing on the financing map, received the staff report, supporting documents, and written and oral testimony, and concluded the hearing.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA, RESOLVES AS FOLLOWS:
Section 1. Recitals and Governing Standards. The foregoing recitals are incorporated herein. The Council has evaluated the actual map, proposed parcel boundaries, access and easements, engineering evidence and environmental record.
The standards governing this decision are those applicable under Government Code section 66474.2, including applicable applicant-requested changes and any controlling vested rights.
Section 2. Environmental Determination and Scope. Before approving the Project, the City Council adopted a resolution certifying the Final Environmental Impact Report for the Oasis at Indio Project (State Clearinghouse No. 2024050578), making the required CEQA findings, adopting a Statement of Overriding Considerations for the significant and unavoidable impacts, and adopting the Mitigation Monitoring and Reporting Program (“MMRP”). That resolution and its exhibits are incorporated herein.
All applicable mitigation measures are binding conditions of this approval and shall be implemented at the times specified in the MMRP. This approval authorizes a financing and conveyance subdivision only. It does not authorize grading, construction, occupancy, or a particular land use. Future development requires the applicable development entitlements, permits, subdivision approvals, and environmental review.
Financing terminology does not exempt reasonably foreseeable development from environmental review.
Section 3. Subdivision Findings. Based on the map and supporting evidence identified in the staff report, the Council makes the following findings under Government Code sections 66473.5 and 66474 and the applicable City subdivision requirements:
(a) The map and its design are consistent with the General Plan as amended and the Oasis at Indio Specific Plan because the four financing parcels implement the plan’s overall land use and circulation framework without approving a different development intensity. Conditions preserve the access, utility, drainage and other easements needed for coordinated development. The amended planning framework shall be operative before this approval becomes operative. (b) The site is physically suitable for the type and density of development contemplated by the adopted planning framework, subject to the conditions, further development review, and applicable mitigation. This conclusion rests on the access, grading, drainage, geotechnical and utility analysis in the record, not merely the site’s zoning or a statement that utilities are nearby.
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(c) The subdivision design and improvements, as conditioned and subject to the adopted biological mitigation, are not likely to cause substantial environmental damage or substantially and avoidably injure fish, wildlife, or their habitat. The Council does not find that the site lacks wildlife or habitat. The EIR identifies biological resources and applicable avoidance, survey and mitigation obligations, which remain enforceable before disturbance.
(d) The subdivision design and improvements are not likely to cause serious public-health problems, based on the sanitary service, water, drainage and access arrangements demonstrated in the record and the conditions requiring the necessary facilities before use. Service capacity and required facilities must be established for the approved stage; this finding does not guarantee unlimited capacity for future development.
(e) The subdivision design and improvements do not conflict with public access or use easements identified in the title and survey evidence. Existing public easements shall be preserved unless lawfully modified through separate proceedings. If alternative easements are relied upon under Government Code section 66474(g), the Council must identify them and find them substantially equivalent. The financing map itself does not vacate or extinguish easements.
Section 4. Conditional Approval. The Council conditionally approves Financing Tentative Parcel Map No. 38799 (PLAN-TPM-23-0001), dated May 14, 2026, in the exact form attached as Exhibit A, subject to the following conditions. (a) General conditions. These conditions bind the subdivider and successors responsible for the affected property. Their applicability to a financing-only map does not accelerate construction or occupancy requirements to recordation unless the condition expressly requires performance or security at that stage. The adopted MMRP and applicable law control where they require earlier compliance. Any proposed phasing must satisfy the approved plans, these conditions and required mitigation; staff may approve technical implementation details but may not waive substantive obligations.
1. To the extent permitted by Government Code section 66474.9, the subdivider shall defend, with counsel selected by the City, indemnify and hold harmless the City and its agents, officers and employees against proceedings timely brought under section 66499.37 to attack, set aside, void or annul an approval concerning this subdivision. The City shall promptly notify the subdivider and fully cooperate in the defense, failure to do either relieves the subdivider of further responsibility as provided by section 66474.9(b)(2). The City may participate in good faith at its own expense. The subdivider need not fund or perform a settlement it has not approved, no settlement may bind the City without its consent.
2. Within 20 days after notice of a covered proceeding, the subdivider shall deposit $10,000 toward reasonable covered defense costs, replenish
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amounts reasonably expended within 30 days after notice, and provide reasonably supported additional deposits within 30 days after notice. Deposits shall be accounted for and any unused balance returned after covered obligations are resolved. This condition does not require payment of the City’s separately elected participation costs or enlarge the indemnity beyond section 66474.9. Enforcement remains subject to applicable notice, hearing and other legal requirements; no automatic revocation is authorized.
3. The recorded parcel map shall substantially conform to the approved tentative parcel map in Exhibit A and satisfy applicable subdivision law.
This approval does not constitute a vesting tentative map approval. Any separate vested rights arise only under their independent legal basis.
4. The financing parcels are for financing and conveyance purposes and are not approved building sites. Before construction, the applicant shall obtain the standard, nonfinancing subdivision approval required by the City’s applicable subdivision requirements, together with all necessary development approvals and permits. A City-approved instrument recorded against each parcel shall disclose this restriction and the applicable conditions without purporting to prohibit a conveyance lawful under the Subdivision Map Act.
5. Before any ground disturbance, the responsible owner or developer shall satisfy applicable preconstruction mitigation and resource-agency authorizations, including biological surveys, avoidance, and any required take authorization. Later approvals shall carry forward applicable Project mitigation and conditions.
6. The map expiration date shall be determined under Government Code section 66452.6, applicable local ordinance, and any legally effective extension, tolling or Development Agreement provision. The Director shall record the calculated date and its legal basis in the case file and notify the applicant; no extension is granted by this resolution.
(b) Before approval and recordation of the parcel map.
7. Applicant shall submit a copy of the Final Map to Coachella Valley Water District (CVWD) for their review and shall obtain a clearance letter from CVWD prior to recordation of the Final Map.
8. Submit a current preliminary title report identifying ownership, encumbrances, access rights and recorded easements for the entire map boundary.
9. Submit the proposed parcel map, a title report issued or updated within the preceding 60 days, map closure calculations, digital AutoCAD and GIS
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files in City-approved formats, and supporting easement and map-reference documents.
10. Before recordation, complete the improvements legally required at that stage or execute the City-approved subdivision improvement agreement and furnish the required security for deferred improvements. The agreement shall identify the improvements, performance triggers, completion dates and security.
Financing-only status does not excuse a required dedication or an expressly required improvement agreement.
11. Provide the 10-foot public utility easements along the south side of Avenue 42, west side of Monroe Street, and both sides of proposed streets, and the utility rights within street widths, as shown in the approved easement plan.
The City Engineer shall confirm the legal form and utility-provider requirements; this condition does not authorize an unspecified enlargement of the required property interest.
12. Establish a property owners association or other City-approved, enforceable maintenance mechanism for common areas and landscaping, graffiti abatement in those areas, and required frontage landscaping and raised medians along Avenue 42 and Monroe Street. Define maintenance areas, funding, successor obligations and City enforcement rights in the approved documents.
13. A copy of the Covenants, Conditions, and Restrictions (CC&Rs) shall be Submitted to the Public Works Engineering Division and Community Development Department for review and approval with maintenance provisions flagged.
14. Record the approved maintenance covenants before or concurrently with the parcel map, in an order approved by the City Attorney that binds all resulting parcels and preserves required lien priority. (c) Before issuance of a grading permit. The following conditions apply to the phase proposed for grading and do not authorize grading under the financing map alone. All earlier MMRP requirements remain applicable.
15. Obtain coverage under all applicable National Pollutant Discharge Elimination System (NPDES) permits and construction stormwater requirements.
Before grading, provide the Engineering Division the required Notice of Intent, Waste Discharge Identification number and Storm Water Pollution Prevention Plan, as applicable, and comply with the State Water Resources Control Board and Colorado River Basin Regional Water Quality Control Board requirements.
16. Submit a PM10 dust-control implementation plan for City approval and obtain the approvals and notifications required by applicable South Coast Air
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Quality Management District rules, including applicable Coachella Valley fugitivedust requirements. The applicant shall implement the approved controls throughout disturbance; applicable dust controls are required regardless of site acreage.
17. Applicant shall submit a Water Quality Management Plan for City approval prior to the issuance of any grading permit.
18. Submit the rough and precise grading plans, soils report, hydrology and hydraulic report, and supporting calculations for City approval before grading. Precise grading plans shall identify applicable street addresses, approved building footprints, drainage patterns and connections.
19. Retaining walls shall be required at elevational differences greater than 12 inches between lots throughout the project and in relation to adjacent boundary properties (if applicable) unless otherwise approved by the City Engineer.
20. Applicant shall use Riverside County Flood Control District standards and submit local on-site and regional hydrology, hydraulic storm calculations for City review and approval.
21. Applicant shall provide on-site storm water retention basin(s) or system(s) designed to the satisfaction of the City Engineer. Each retention basin shall include a sufficient number of underground vertical drywells, Maxwell Plus or equivalent, designed to eliminate standing water in the basin. The retention basin(s) or system(s) shall be sized to retain all post-development storm water runoff within the limits of the project based on a 100-year storm event of 24-hour duration and shall completely drain/percolate any storm event within 72 hours. All upstream runoff from adjacent properties that has historically been directed onto the proposed project may be considered to pass through the project with the exception of historical retention that occurred on-site. The retention basin shall be designed, per Standard Plan No. 310. with a maximum depth of 5 feet (with a one-foot minimum freeboard) and maximum side slopes of 3:1 and shall not be used for purposes other than for the collection of storm water, nuisance water and well blow-off water. a. Applicant shall design and construct a storm drain system consisting of a 36” storm drain line, catch basins, and laterals on Avenue 42, west from Monroe Street per the City of Indio Master Drainage Plan dated November 2019. Design plans will be subject to approval by the City Engineer.
22. The design of the project lot pads, street improvements and the storm drainage improvements shall be design coordinated with all adjacent projects or properties to the satisfaction of the City Engineer.
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23. All grading and pad elevations will be subject to approval of the Community Development Director and the City Engineer based on grading plans and additional information to be submitted during plan check. (d) Improvement design and construction requirements. Required improvement plans shall be approved before the corresponding work begins, and encroachment permits and dedications required for that work shall be obtained beforehand. Unless an earlier deadline is specified, required completed improvements and operational facilities shall be in place and accepted before issuance of a temporary or permanent certificate of occupancy for the development they serve. A written Cityapproved phasing plan may allocate performance among phases only where consistent with these conditions, the adopted mitigation and safe, functional service to each phase; it may not defer an improvement needed by an occupied phase.
24. Applicant shall: a. Dispose of all concrete and asphalt removals from the proposed project to an approved recyclable site. b. Applicant shall provide City of Indio Public Works Department with a copy of receipt showing tonnage for the disposal of recyclable concrete and asphalt. c. Dispose of all material removals from the proposed project to an approved disposal site.
25. Before construction of the affected improvements, submit and obtain approval of street, storm drain, signing and striping, streetlight, irrigation and landscape, and traffic signal plans.
26. Applicant shall construct full off-site street improvements on the following streets: a. Avenue 42, south half street improvements along the property frontage, plus 14 feet of pavement on the north side. b. Monroe Street, west half street improvements along the property frontage.
27. The improvements shall include construction of asphalt concrete pavement, curb/gutter, Class 4 - Cycle Track, sidewalk, streetlights, storm drain system (catch basins, storm drainpipe, etc.), and fully landscaped and irrigated raised curb medians and parkways along the property frontage.
28. Applicant shall pulverize full depth the existing asphalt concrete pavement on Avenue 42 and repave along the property frontage.
29. Applicant shall grind and overlay the existing asphalt concrete pavement on the west side of Monroe Street to the minimum depth of 2 inches along the property frontage.
30. Avenue 42 shall be constructed as a 4-lane Boulevard with a 12- foot raised curb median, 46 feet from centerline to right-of-way line and 36 feet from centerline to curb between Monroe Street and Clinton Street. Between Clinton Street and the westerly property line it shall be 47 feet from centerline to right-of-way line and 36 feet from centerline to curb.
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1499 of 2236
31. All off-site street improvements including energizing of streetlights and installation of irrigation and landscaping along: a. Avenue 42 & Monroe Street shall be constructed by the applicant and accepted by the City prior to issuance of a temporary or permanent certificate of occupancy.
32. Dedicate the right-of-way along Monroe Street and Avenue 42 identified in the approved map and improvement plans before recordation where required for the subdivision, and in all cases before construction within the dedicated area. The City Engineer shall verify conformity to the adopted dimensions; any additional dedication requires a lawful basis and the applicable review.
33. Coordinate the I-10/Monroe Street Interchange right-of-way with the City and responsible agencies. Any required dedication shall be identified in the approved map, final Development Agreement or other lawfully imposed condition; this coordination requirement does not authorize an undefined additional dedication.
34. Applicant shall obtain an encroachment permit prior to starting any street improvements within public right-of-way.
35. All street knuckles shall be per City of Indio Standard Plan No. 142, and street cul-de-sacs per City of Indio Standard Plan No. 140.
36. Any proposed gated access driveways on Avenue 42 will require a focused queuing analysis to determine minimum stacking room and acceptable turnaround requirements. Gates shall be located a minimum of 50’ behind right of way.
37. Applicant shall incorporate traffic calming elements on Street A, as approved by the City’s Transportation Engineer and Fire Department.
38. The minimum grade on all proposed streets shall be 0.50%.
39. The corner cutback at the intersections of Monroe Street and Avenue 42 shall be per City of Indio standard plan No. 143.
40. The minimum curb return radius for public streets shall be: a. R = 35 feet and for b. Private streets R=20 feet
41. The minimum width for proposed private aisles shall be 24 feet and shall be in compliance with the Fire Department requirements.
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1500 of 2236
42. Applicant shall remove and replace any damaged or broken curb/gutter, sidewalk, and asphalt concrete pavement on Avenue 42 and Monroe Street along the project property frontage.
43. The Project shall comply with the Americans with Disabilities Act and applicable California accessibility requirements.
44. Street addresses shall be shown on Precise Grading Plans.
45. All improvements shall comply with City standards, requirements, and policies. Applicant is required to construct all transition and missing links between existing and proposed improvements.
46. Underground overhead utilities rated below 92 kV within or along the Project frontage as required by the approved utility plans. Relocate utilities rated above 92 kV to the approved ultimate location behind the sidewalk, subject to Imperial Irrigation District and City approval. Utilities rated exactly 92 kV shall be addressed expressly in the approved utility plan before construction; no gap in this condition authorizes an unreviewed placement. Required utility approvals and easements shall be obtained before work.
47. The proposed access driveways on Avenue 42 shall be restricted to right-turns-in and right-turns-out only, unless a traffic signal is installed to the satisfaction of the City Engineer.
48. Applicant shall modify the traffic signal on Monroe Street at Street A to provide the west leg of the intersection for access to the proposed project.
49. Applicant shall provide Deceleration and Acceleration lanes at each driveway on Avenue 42 as per the project traffic study recommendations.
50. Pay the Project’s lawfully required fair-share contributions identified in the final approved traffic study and applicable fee or improvement obligations at their prescribed triggers. The record shall identify each improvement, the Project’s attributable share, the calculation basis and applicable credits. No duplicate charge shall be imposed for the same obligation paid or satisfied under the Development Agreement or another approval.
51. Implement the transportation mitigation adopted in the MMRP at its specified times, including any requirement before construction or occupancy.
Engineering recommendations become enforceable conditions only to the extent expressly incorporated into an approval; the adopted study and applicable requirements shall be identified by title and date in the case file.
Section 5. Coordination and Implementation. This conditional approval becomes operative when the related General Plan amendments, Oasis at Indio Specific Plan and
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1501 of 2236
Zone Map Amendment are operative. No parcel map shall be recorded in reliance on inconsistent or ineffective planning approvals. Nothing in this provision postpones a statutory decision deadline or permits staff to make missing Council findings after adoption.
Section 6. Certification and Notice. The City Clerk shall certify adoption of this resolution and retain the resolution and its complete exhibits in the official records of the City. The Community Development Director shall provide the applicant a copy of this decision and the conditions, with any notice required by applicable law concerning judicial review or protests to fees, dedications and exactions. This resolution takes effect upon adoption, subject to the operative-date provision above.
PASSED, APPROVED, AND ADOPTED on September 16, 2026, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_______________________
ELAINE HOLMES, MAYOR
ATTEST:
____________________
SABDI SANCHEZ, DIRECTOR OF CITY CLERK SERVICES
Exhibit A — Financing Tentative Parcel Map No. 38799, PLAN-TPM-23-0001
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1502 of 2236 AVENUE 42
C
MONROE STREET
7 5 8
9 3
1 4
6 2
INTERSTATE 10
PROP. LOT LINE (TYP.)
PROP. LOT LINE (TYP.)
C
EX. C/L
EX. R/W
EX. PROJECT
BOUNDARY
EX. R/W &
PROP. PROJECT
BOUNDARY
A
A
EX. LOT LINE &
PROJECT BOUNDARY
PROP. LOT LINE (TYP.)
B
B
EX. C/L
CLINTON
STREET
EX. C/L
PROP. PROJECT BOUNDARY & R/W
EX. R/W & PROJECT BOUNDARY
PARCEL 3
438,381 SF
10.1 AC.
PARCEL 2
199,995 SF
4.6 AC.
PARCEL 4
4,342,677 SF
99.7 AC.
PARCEL 1
2,903,181 SF
66.6 AC.
46'
67'
27' 40'
20' 26'
PROP. R/W DEDICATION
100'
RECIPROCAL ACCESS EASEMENT
662'
4380' 302'
44' 44'
620'
856'
4062'
741'
1251'
3528' 100'
RECIPROCAL ACCESS EASEMENT
46'
67'
21'
EX. PUBLIC STREET EASEMENT TO BE VACATED /
PUBLIC UTILITY EASEMENT TO BE RESERVED
EX. R/W
PROP. R/W & PROJECT BOUNDARY
N 02°33'06" W 543.95'
N 02°33'06" W 214.69'
N 07°10'04" E 195.48'
N 46°18'00" W
35.96'
N 47°33'01" W
36.77'
N 02°33'06" W
87.95'
N 42°26'59" E
36.77'
N 55°44'25" E 329.26'
=21°01'01" R=2000.05' 733.65'
N 76°46'01" E 587.19'
=27°17'07" R=5500.12' 2619.26'
=51°09'12" R=1609.86' 1437.27' N 00°04'41" W 475.67'
N 89°57'04" E 4337.99'
∆=10°29'49"
R=204.00'
37.37'
N 79°33'07" W
96.53'
655'
197' 80'
4392' N 89°57'04" E 196.75'
SECTION A-A
AVENUE 42 (WEST OF CLINTON STREET)
(4-LANE BOULEVARD WITH MEDIAN / PER CITY OF INDIO)
N.T.S.
46'
12' 30'
11' 11' 3' 4' 6' 5' 3' 11' 11' PROP. RAISED 5' 6' 4'
10'
46'
MEDIAN
FUT. LANE FUT. LANE PROP. LANE PROP. LANE
10' 30' (FUTURE BY OTHERS)
PROP. BARRIER CURB
PROP. SIDEWALK
PROP. CURB & GUTTER
PROP. LANDSCAPE
PARKWAY PROP. BICYCLE
BARRIER
PROP.
CLASS IV
BIKE
TRACK
FUT.
CLASS IV
BIKE
TRACK
FUT. SIDEWALK
FUT. CURB & GUTTER
FUT. LANDSCAPE
PARKWAY FUT. BICYCLE
BARRIER
92' (ULTIMATE R/W)
20' 26' PROP. R/W DEDICATION
PROP. BARRIER CURB
CL
R/W
PROP.
R/W
EX.
R/W
ULTIMATE
±4'
EX. BARRIER CURB EX. BARRIER CURB
134' (EXISTING IMPROVEMENTS)
±58' ±58' ±9'
EX. CURB & GUTTER EX. CURB & GUTTER
±6' ±3'
±9'
±3' ±6' ±66' ±46'
SECTION C-C
MONROE STREET
(PER CITY OF INDIO / PUBLIC ROAD)
N.T.S.
SIDEWALK SIDEWALK
CL
R/W
EX.
R/W
EX.
SECTION B-B
AVENUE 42 (EAST OF CLINTON STREET)
(4-LANE BOULEVARD WITH MEDIAN / PER CITY OF INDIO)
N.T.S.
46'
12' 30'
11' 11' 3' 4' 6' 5' 3' 11' 11' PROP. RAISED 5' 6' 4'
10'
46'
MEDIAN
FUT. LANE FUT. LANE PROP. LANE PROP. LANE
10' 30' (FUTURE BY OTHERS)
PROP. BARRIER CURB
PROP. SIDEWALK
PROP. CURB & GUTTER
PROP. LANDSCAPE
PARKWAY PROP. BICYCLE
BARRIER
PROP.
CLASS IV
BIKE
TRACK
FUT.
CLASS IV
BIKE
TRACK
FUT. SIDEWALK
FUT. CURB & GUTTER
FUT. LANDSCAPE
PARKWAY FUT. BICYCLE
BARRIER
92' (ULTIMATE R/W)
PROP. BARRIER CURB
CL
R/W
ULTIMATE
67'
21' R/W
PROP.
R/W
EX.
EX. PUBLIC STREET EASEMENT
TO BE VACATED /
PUBLIC UTILITY EASEMENT
TO BE RESERVED
MSA CONSULTING ,INC.
Civil Engineering LandSurveying LandscapeArchitecture
Planning Environmental Services DryUtilityCoordination GIS 34200 Bob Hope Drive Rancho Mirage, CA 92270 | 760.320.9811 | MSAConsultinginc.com SHEET
SHEETS
1 OF
1 EAST
NORTH
SOUTH
WEST
CENTERLINE
EASEMENT
EXISTING
(E)
(N)
(S)
(W)
C/L
ESMT.
EX.
ABBREVIATIONS
AC ACREAGE
C&G CURB AND GUTTER
APN ASSESSORS PARCEL NUMBER
E/P EDGE OF PAVEMENT
A.C. ASPHALT CONCRETE
MIN. MINIMUM
MAX. MAXIMUM EXISTING IRRIGATION
EXISTING GAS
EXISTING EASEMENT
EXISTING ELECTRIC
EXISTING IRRIGATION DRAIN LINE
EXISTING CABLE
EXISTING CONTOURS
EXISTING SPOT ELEVATIONS
LEGEND
X
EXISTING EASEMENT DELTA
EXISTING LOT LINE
EXISTING TELEPHONE
BNDRY BOUNDARY
EXISTING EDGE OF PAVEMENT
M.B. MAP BOOK
DATA TABLE
ASSESSOR'S PARCEL NUMBERS 610-020-001, -010, -012, -013, -021, -034 & -036 SOURCE OF TOPOGRAPHY INLAND AERIAL SURVEYS, INC.
7117 ARLINGTON AVENUE, SUITE "A"
RIVERSIDE, CALIFORNIA 92503
PUBLIC UTILITY PURVEYORS DATE OF TOPOGRAPHY JULY 27, 2022
IMPERIAL IRRIGATION DISTRICT
SOUTHERN CALIFORNIA GAS COMPANY
VERIZON COMPANY
INDIO WATER AUTHORITY
SPECTRUM
VALLEY SANITARY DISTRICT
UNDERGROUND SERVICE ALERT
EXISTING GROSS ACREAGE 185.8 AC.
EXISTING ZONING
PROPOSED ZONING
EXISTING GENERAL PLAN LAND USE
PROPOSED GENERAL PLAN LAND USE
MIXED USE NEIGHBORHOOD (MUN) / REGIONAL COMMERCIAL (RC) /
SPECIFIC PLAN
SPECIFIC PLAN
LAND USE DESCRIPTION ACREAGE
PROPOSED PARCEL 2 (COMMERCIAL) 4.6 AC.
PROPOSED PARCEL 1 (RESIDENTIAL) 66.6 AC.
ZONE "X": AREAS OF MINIMAL FLOOD HAZARD
AS SHOWN ON RIVERSIDE COUNTY, CALIFORNIA, FLOOD INSURANCE RATE MAP, COMMUNITY PANEL MAP NUMBER: 06065C2251H
FEMA FLOOD ZONE DESIGNATION
EFFECTIVE DATE: MARCH 16, 2018
APPLICANT /
ADDRESS
CONTACT
11111 SANTA MONICA BOULEVARD, SUITE 600
LOS ANGELES, CALIFORNIA 90049
DAVID UM
EXHIBIT PREPARER
ADDRESS
MSA CONSULTING, INC.
34200 BOB HOPE DRIVE
RANCHO MIRAGE, CALIFORNIA 92270
CONTACT PAUL DEPALATIS, AICP TELEPHONE (760) 320-9811
REVISIONS
NO. DATE
LIQUEFACTION LOW LIQUEFACTION ZONE
NOTES 1.
MIXED USE NEIGHBORHOOD / REGIONAL COMMERCIAL
LEGAL DESCRIPTION
(760) 335-3640
(800) 427-2200
(800) 483-5000
(760) 391-4038
(877) 719-3278
(760) 238-5400
(800) 227-2600
DESCRIPTION
ELECTRIC
GAS
TELEPHONE
WATER
CABLE
SEWER
USA
THIS MAP INCLUDES THE ENTIRE CONTIGUOUS OWNERSHIP OF THE LAND DIVIDER.
2. THERE ARE NO EXISTING DWELLINGS, BUILDINGS, OR OTHER STRUCTURES KNOWN ON THIS PROPERTY.
B.H. MANAGEMENT, INC.
PROPOSED PARCEL 3 (COMMERCIAL) 10.1 AC.
ADDRESS
EXISTING EASEMENT NOTES
INCIDENTAL PURPOSES, RECORDED 08/13/1934 AS BOOK 189, PAGE 65, O.R.
AN EASEMENT IN FAVOR OF SOUTHERN SIERRAS POWER COMPANY FOR PUBLIC UTILITY AND PROPOSED PARCEL 4 (INDUSTRIAL) 99.7 AC.
PROPOSED PUBLIC RIGHT OF WAY DEDICATION 4.8 AC.
(AVENUE 42 & MONROE STREET)
EXISTING SEWER
EXISTING RIGHT OF WAY
PROPOSED EASEMENT
PROPOSED LOT LINE
EXISTING SEWER FORCE MAIN
EXISTING WATER
PROPOSED AND EXISTING CENTER LINE
TENTATIVE PARCEL MAP BOUNDARY
NUMBER
PROPOSED
RIGHT OF WAY
TYPICAL
NO.
PROP.
R/W
TYP.
P.U.E. PUBLIC UTILITY EASEMENT
SF SQUARE FEET
R RADIUS
STD. STANDARD
P/L PROPERTY LINE
N.T.S. NOT TO SCALE
R-L LOW DENSITY (RESIDENTIAL)
UG UNDERGROUND
O/H OVERHEAD
OS/PP OPEN SPACE / PARKS
PG. PAGE
EXISTING OVERHEAD TELEPHONE
A PORTION OF THE NORTH 1/2 OF SECTION 15 TOWNSHIP 5 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN.
LAND OWNER
(PLOTTED HEREON)
INCIDENTAL PURPOSES, RECORDED 05/14/1941 AS BOOK 505, PAGE 140, O.R.
AN EASEMENT IN FAVOR OF THE COUNTY OF RIVERSIDE FOR PUBLIC HIGHWAY, UTILITIES AND (PLOTTED HEREON)
INCIDENTAL PURPOSES, RECORDED 04/23/1948 AS BOOK 910, PAGE 54, O.R.
AN EASEMENT IN FAVOR OF THE UNITED STATES OF AMERICA FOR PIPELINES AND (PLOTTED HEREON)
3 2
1 NCIDENTAL PURPOSES, RECORDED 07/14/1948 AS BOOK 994, PAGE 157, O.R.
AN EASEMENT IN FAVOR OF THE UNITED STATES OF AMERICA FOR PIPELINES AND (PLOTTED HEREON)
4 INCIDENTAL PURPOSES, RECORDED 07/31/1948 AS BOOK 999, PAGE 409, O.R.
AN EASEMENT IN FAVOR OF THE UNITED STATES OF AMERICA FOR PIPELINES AND (PLOTTED HEREON)
5 SAID LAND ALONG THE SOUTHERLY BOUNDARY HAVE BEEN RELINQUISHED IN THE
ABUTTER'S RIGHTS OF INGRESS AND EGRESS TO OR FROM THE STREET OR HIGHWAY ABUTTING DOCUMENT RECORDED 02/13/1970 AS INST. NO. 1970-13926, O.R. (PLOTTED HEREON) 6 INCIDENTAL PURPOSES, RECORDED 01/30/1998 AS INST. NO. 1998-34956, O.R.
AN EASEMENT IN FAVOR OF THE CITY OF INDIO FOR PUBLIC STREET, PUBLIC UTILITY AND (PLOTTED HEREON)
7 PURPOSES, RECORDED 08/28/2008 AS INST. NO. 2008-0473794, O.R.
AN EASEMENT IN FAVOR OF THE CITY OF INDIO FOR PUBLIC UTILITY AND INCIDENTAL (PLOTTED HEREON)
8 INCIDENTAL PURPOSES, RECORDED 10/15/2008 AS INST. NO. 2008-0554153, O.R.
AN EASEMENT IN FAVOR OF THE CITY OF INDIO FOR PUBLIC ROADWAY, UTILITY AND (PLOTTED HEREON)
9 DATA TABLE CONTINUED
N.T.S.
VICINITY MAP
AVENUE 40
SITE
AVENUE 42
MONROE STREET
AVENUE 41
INTERSTATE 10
INDIO BOULEVARD
MADISON ST.
FRED WARING DRIVE
JEFFERSON
VARNER
AVENUE 44
I-10
STREET
RD.
SPECIFIC PLAN (MU-SP)
PROPOSED NET ACREAGE 181.0 AC.
TELEPHONE (951) 687-4252
3. THIS MAP IS FOR PURPOSES OF LAND SALE AND OWNERSHIP CONVEYANCE ONLY.
NO DEVELOPMENT IS PROPOSED ON ANY PARCEL WITHOUT A SUBSEQUENT ENTITLEMENT APPROVAL.
TENTATIVE PARCEL MAP NO. 38799
EXHIBIT DATE: MAY 14, 2026
IN THE CITY OF INDIO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA
FOR FINANCING PURPOSES
NOTE:
STREET SECTIONS SHOWN ONLY FOR REFERENCE IN UNDERSTANDING HOW ROW DEDICATIONS WERE DETERMINED. NO STREET OR OTHER IMPROVEMENTS ARE PROPOSED WITH THIS MAP.
R:\2760\Acad\Planning\Tentative Map\2760 TPM 38799 - FINANCING - NO IID.dwg, 5/14/2026 8:42:02 AM, dgallerani, MSA Consulting, Inc.
610-020-021
610-020-036
610-020-010
610-020-012
610-020-001
610-020-013
610-020-034
VICINITY MAP
- Project Site
0 0.07 0.15 0.3 mi 0 0.1 0.2 0.4 km
1:7,196
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1505 of 2236 Oasis at Indio Specific Plan
Purpose of Specific Plan Refinements
Throughout the public review process for the Oasis at Indio Specific Plan, the Applicant has continued to evaluate opportunities to refine and enhance the Project. Following input received from the community, City staff, and the Planning Commission, the Applicant voluntarily incorporated several changes intended to improve the Specific Plan while maintaining its fundamental vision and overall land use framework.
Expanded Employment Opportunities
The Specific Plan has been refined to broaden the range of permitted uses within the industrial land use designation to provide greater flexibility to attract high-quality employers and emerging industries.
The additional uses include corporate campuses, medical office and life sciences, cleantech and advanced manufacturing, ag-tech and indoor farming, trade schools and workforce training, research and development campuses, business incubators, technology innovation centers, and creative media and digital industries.
These refinements support the City of Indio General Plan 2040's Citywide objectives for economic growth, expanded employment opportunities, and a diverse and resilient local economy. They also align with the Coachella Valley Economic Development Strategy, which emphasizes economic diversification and growth in sectors such as creative media, advanced manufacturing, health and wellness, biotechnology, clean energy, and other innovation-oriented industries.
Broadening the permitted uses allows Oasis to respond to evolving economic opportunities over the life of the Specific Plan and better positions the Project to attract employers that can diversify Indio's employment base and create additional job opportunities for residents.
Reduced Maximum Building Height
The Applicant has voluntarily reduced the maximum permitted building height from 100 feet to 65 feet. This change provides greater certainty regarding the future scale of development while maintaining sufficient flexibility to accommodate the modern employment, manufacturing, technology, research and development, and industrial uses envisioned for Oasis.
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1506 of 2236 Enhanced Interstate 10 Frontage
The minimum building setback along Interstate 10 has been increased to 35 feet, with enhanced landscaping requirements that include 36-inch box trees or larger along the freeway frontage.
These refinements will provide greater separation between future buildings and Interstate 10 and create a more substantial landscaped edge along this highly visible corridor. The changes also support the General Plan's Citywide community design objectives by promoting high-quality development and enhancing the City's visual character along a prominent gateway into Indio.
Enhanced Architectural Design
The Specific Plan has also been updated to strengthen architectural design guidance for future employment and industrial development. The revised standards emphasize contemporary, high-quality architecture, enhanced elevations, building articulation, varied materials and façade treatments, integrated landscaping, and additional attention to elevations visible from Interstate 10 and other prominent public viewpoints.
Collectively, these voluntary refinements reflect the Applicant's continued commitment to the public review process and provide additional assurances regarding the quality, appearance, and economic potential of future development within Oasis, while maintaining the overall vision of the Specific Plan.
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1507 of 2236 The Oasis at Indio Specific Plan
City of Indio, California
Prepared for: BH Properties
Prepared by: MIG
Draft Specific Plan April, 2026
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Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1509 of 2236 Page TOC-1 The Oasis at Indio Specific Plan
April 2026
The Oasis at Indio Specific Plan
Table of Contents
Page
1. INTRODUCTION ...................................................................................................................................1-1
1.1. Planning Context........................................................................................................................1-1
1.1.1. Existing Setting and Surrounding Uses..........................................................................1-1
1.1.2. Existing and Proposed General Plan Land Use and Zoning...........................................1-6
1.1.3. Relationship to the Bermuda Dunes Airport Plan.......................................................1-10
1.1.4. Previous Entitlements.................................................................................................1-10
1.2. Authority and Requirements...................................................................................................1-12
1.3. CEQA Compliance ....................................................................................................................1-13
1.4. Specific Plan Goals and Objectives..........................................................................................1-14
1.5. Specific Plan Organization .......................................................................................................1-16
2. DEVELOPMENT PLAN...........................................................................................................................2-1
2.1. Land Use Concept Plan ..............................................................................................................2-1
2.1.1. Specific Plan Development Limit..................................................................................2-3
2.1.2. Planning Area 1-3 .........................................................................................................2-4
2.1.3. Planning Area 4.............................................................................................................2-5
2.2. Circulation and Mobility ...........................................................................................................2-6
2.2.1. Vehicular Circulation ....................................................................................................2-6
2.2.2. Non-Vehicular Circulation ..........................................................................................2-12
2.2.3. Public Transit ..............................................................................................................2-15
2.3. Grading ....................................................................................................................................2-15
2.4. Landscape and Green Space....................................................................................................2-15
2.5. Infrastructure and Utilities......................................................................................................2-18
2.5.1. Water..........................................................................................................................2-18
2.5.2. Wastewater ...............................................................................................................2-18
2.5.3. Stormwater Drainage and Flood Control ...................................................................2-21
2.5.4. Dry Utilities.................................................................................................................2-21
2.5.5. Fiber Optics.................................................................................................................2-24
2.5.6. Solid Waste.................................................................................................................2-24
2.6. Public Services.........................................................................................................................2-24
2.6.1. Police ..........................................................................................................................2-24
2.6.2. Fire..............................................................................................................................2-24
2.6.3. Schools........................................................................................................................2-25
2.6.4. Library Services...........................................................................................................2-25
Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1510 of 2236 Table of Contents
The Oasis at Indio Specific Plan Page TOC-2
April 2026
3. DEVELOPMENT REGULATIONS ............................................................................................................3-1
3.1. General Provisions.....................................................................................................................3-1
3.2. Land Use Descriptions ...............................................................................................................3-1
3.3. Definition of Terms....................................................................................................................3-1
3.4. Performance Standards...........................................................................................................3-32
3.4.1. Security.........................................................................................................................3-32
3.4.2. Noise and Ventilation...................................................................................................3-32
3.4.3. Air Contaminants..........................................................................................................3-32
3.4.4. Limitations on Use within a Mixed-Use Development...................................................3-3
3.4.5. Maintenance ................................................................................................................3-43
3.4.6. Hours of Operation ......................................................................................................3-43
3.4.7. Lighting.........................................................................................................................3-43
3.5. Permitted Uses..........................................................................................................................3-4
3.6. Development Standards........................................................................................................3-153
3.6.1. Supplemental Development Standards .....................................................................3-186
3.7. Parking Standards..................................................................................................................3-220
3.8. Freeway-Oriented Digital Outdoor Advertising Display Standards.......................................3-242
3.8.1. Applicability/Regulatory Framework .........................................................................3-242
4. OBJECTIVE DESIGN STANDARDS and DESIGN GUIDELINES ................................................................4-1
4.1. Multi-Family Objective Design Standards..................................................................................4-2
4.1.1. Site Design......................................................................................................................4-2
4.1.2. Exterior Design ...............................................................................................................4-3
4.1.3. General Architectural Features and Accents ...............................................................4-10
4.2. Mixed-Use Objective Design Standards ..................................................................................4-11
4.2.1. Site Design....................................................................................................................4-11
4.2.2. Exterior Design .............................................................................................................4-14
4.2.3. General Architectural Features and Accents ...............................................................4-20
4.3. Industrial Design Guidelines....................................................................................................4-21
4.3.1. Site Design....................................................................................................................4-21
4.3.2. Exterior Design ...........................................................................................................4-221
4.3.3. General Architectural Features and Accents .............................................................4-254
4.4. Walls and Fences...................................................................................................................4-276
4.5. Landscape Objective Design Standards and Guidelines......................................................4-2726
4.5.1. Landscape Architectural Concepts...........................................................................4-2928
4.5.2. Entries, Edge Conditions and Social Spaces.............................................................4-3029
4.5.3. Landscape Sustainability and Energy Efficiency.......................................................4-3837
4.5.4. ‘The Oasis of Indio’ Plant Palette .............................................................................4-3938
5. ADMINISTRATION and IMPLEMENTATION .........................................................................................5-1
5.1. Administration...........................................................................................................................5-1
5.1.1. Responsibility and Enforcement ....................................................................................5-1
5.1.2. Applicability....................................................................................................................5-1
5.1.3. Severability.....................................................................................................................5-2
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5.1.4. Interpretation.................................................................................................................5-2
5.1.5. Initial Entitlements.........................................................................................................5-2
5.1.6. Administrative Adjustments and Specific Plan Amendments........................................5-3
5.2. Implementation...........................................................................................................................5-5
5.2.1. Planning Review .............................................................................................................5-6
5.2.2. Planning Review– Administrative...................................................................................5-6
5.2.3. Planning Review – Ministerial......................................................................................5-10
5.2.4. Planning Review – Discretionary................................................................................5-110
5.2.5. Pre-Application Review and Conferences....................................................................5-12
5.2.6. Concurrent Processing ...............................................................................................5-132
5.2.7. Notice of Decision; Appeals; Expiration and Extensions............................................5-133
5.2.8. Project Tracking..........................................................................................................5-133
5.2.9. Land Use Conversion....................................................................................................5-15
5.2.10.Conceptual Phasing......................................................................................................5-17
5.2.11.Maintenance and Ownership.......................................................................................5-17
5.2.12.Development Agreement.............................................................................................5-18
5.2.13.Financing for Construction, Operations and Maintenance..........................................5-19 Appendices:
Appendix A: Airport Land Use Commission (ALUC)
Appendix B: Track Implementation Form
List of Tables
Table 1-1: General Plan Place Type Designation .......................................................................................1-6 Table 1-2: Zoning Designation ...................................................................................................................1-8 Table 2-1: Land Use Plan Statistical Summary...........................................................................................2-3 Table 2-2: Development Potential Maximums..........................................................................................2-4 Table 2-3: Riverside County Fire Station Locations .................................................................................2-24 Table 3‐1: Land Use Matrix ......................................................................................................................3-65 Table 3-2: Maximum Density/Intensity Calculations...........................................................................3-1311 Table 3-3: Development Standards .......................................................................................................3-153 Table 3-4: Off-Street Vehicle Parking Standards..................................................................................3-2022 Table 3-5: Freeway-Oriented Digital Outdoor Advertising Display Standards ......................................3-242 Table 5-1: Review Authority.....................................................................................................................5-14 Table 5-2: Scenario #2..............................................................................................................................5-15 Table 5-3: Land Use Equivalency Conversion ..........................................................................................5-16 Table 5‐4: Financing, Ownership, and Maintenance ...............................................................................5-17 Table 5-5: Financing Mechanisms............................................................................................................5-19 List of Figures
Figure 1-1: Regional Map...........................................................................................................................1-2 Figure 1-2: Surrounding Context Map ......................................................................................................1-3
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Figure 1-3: Existing Conditions Map ..........................................................................................................1-5 Figure 1-4: Existing and Proposed General Plan Place Type Designations................................................1-7 Figure 1-5: Existing and Proposed Zoning..................................................................................................1-9 Figure 1-6: Previous Entitlements Map ...................................................................................................1-11 Figure 2-1: Land Use Districts ....................................................................................................................2-2 Figure 2-2A: Illustrative Site Plan...............................................................................................................2-7 Figure 2-2B: Illustrative Site Plan...............................................................................................................2-8 Figure 2-3A: Conceptual Vehicular Circulation and Mobility Plan.............................................................2-9 Figure 2-3B: Conceptual Vehicular Circulation and Mobility Plan...........................................................2-10 Figure 2-4: Conceptual Non-Vehicular Circulation and Mobility Plan ....................................................2-14 Figure 2-5: Conceptual Grading Plan .......................................................................................................2-16 Figure 2-6: Conceptual Landscape and Green Space Plan.......................................................................2-17 Figure 2-7: Conceptual Water Infrastructure Plan...................................................................................2-19 Figure 2-8: Conceptual Sanitary Sewer Infrastructure Plan.....................................................................2-20 Figure 2-9: Conceptual Drainage Infrastructure Plan ..............................................................................2-22 Figure 2-10: Conceptual Dry Utility Infrastructure Plan ..........................................................................2-23 Figure 3-1: Airport Compatibility Zones.................................................................................................3-142 Figure 4-1: Monroe Street Parkway – Commercial Edge Condition (West) ..........................................4-332 Figure 4-2: Street ‘A’ – Commercial Edge Condition .............................................................................4-343 Figure 4-3: Street ‘A’ Industrial Edge Condition....................................................................................4-343 Figure 4-4: Freeway Edge Condition......................................................................................................4-354 Figure 4-5: Avenue 42 – Residential Edge Condition.............................................................................4-354 Figure 4-6: Street ‘A’ Residential Edge...................................................................................................4-365 Figure 4-7: Street ‘A’ Cross Section........................................................................................................4-365 Figure 5-1: Permit Process.......................................................................................................................5-12
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Chapter 1 - Introduction
1.1 Planning Context
The Oasis at Indio Specific Plan establishes the land use and development regulations, and implementation strategies to provide a balanced and sustainable residential and non-residential development with a range of employment-generating activities and medium to high-density residential that will complement surrounding neighborhoods, centers, and districts. The intent of this Specific Plan is to provide a comprehensive framework in which development can occur in a planned, logical fashion rather than a piecemeal approach. This comprehensive approach will help to create a unified development for the City of Indio residents and visitors to enjoy.
The Oasis at Indio Specific Plan is a stand-alone planning document that focuses on the unique characteristics of the Specific Plan Area and customizes the planning standards and review procedures to reflect the City’s vision for this area within the Avenue 42 Corridor Subarea. Additionally, The Oasis at Indio Specific Plan addresses infrastructure, public services, and utilities to ensure comprehensive and coordinated planning of the essential facilities needed to support the land uses described in this plan.
The Specific Plan is the tool that will systematically implement the goals and policies of the City of Indio General Plan. Proposed development plans or agreements, tentative tract or parcel maps, and any other development approval must be in substantial conformance with the Specific Plan. Projects which are found consistent with the Specific Plan will be deemed consistent with the City's General Plan. Upon adoption by ordinance, The Oasis at Indio Specific Plan shall serve as the official zoning and development plan for the Specific Plan Area.
1.1.1 Existing Setting and Surrounding Uses
The Oasis at Indio is located within the Coachella Valley area of Riverside County, in the north-central portion of the City of Indio, adjacent to and north of Interstate 10 (I-10) as shown in Figure 1-1, Regional Map and Figure 1-2, Surrounding Context Map. The Specific Plan Area is bounded by Avenue 42 to the north, Monroe Street to the east, the Thousand Palms Stormwater Channel to the west, and the I-10 Freeway to the south.
Regional access to the Specific Plan Area is available from the I-10 Freeway via Monroe Street. Primary arterial access to the Specific Plan Area is available from Monroe Street, Jackson Street, and Jefferson Street, which are accessible from/to I-10.
The Specific Plan Area consists of seven Assessor’s Parcel Numbers (APNs): 610-020-001, 610-020-010, 610-020-012, 610-020-013, 610-020-021, 610-020-034, 610-020-036. While the APNs total 173.9 acres, the property has been surveyed reflecting a gross acreage of approximately 182.8 acres.
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The approximately 183-acre site is irregular in shape and relatively flat, with a slight gradient from northwest to southeast. There is approximately 15 feet of fall across the site with an average slope of about 0.3%. The Specific Plan Area is currently undeveloped vacant land with a few remnants of former development/structures for agricultural purposes including several concrete pads on the north-central portion of the subject property, and two agricultural standpipes on the northwest corner and central portion of the property.
The Site is not located within a 100-year or 500-year flood zone, there are no sole-source aquifers, groundwater monitoring wells, and no evidence of public water sources within the Specific Plan Area.
The site is surrounded by active agriculture land uses and vacant land to the north, the Thousand Palms Stormwater Channel, vacant land, and a landscaping supply facility (Southwest Boulder & Stone) to the west, commercial land uses (The Palms at Indio) to the east, and the I-10 Freeway to the south. The southeast corner of Monroe Street and Avenue 42 includes a Circle K convenience store/gas station, drive-thru restaurants, financial business, urgent care facility, and other miscellaneous commercial/retail uses. North of the Specific Plan beyond the agricultural land uses, are several residential neighborhoods including Palazzo and Sun City Shadow Hills. South of the Specific Plan beyond the I-10 Freeway includes the Coachella Valley Stormwater Channel as shown in Figure 1-3, Existing Conditions Map.
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1.1.2 Existing and Proposed General Plan Land Use and Zoning
1.1.2.1 General Plan
The City of Indio 2040 General Plan is a long-range policy document that provides implementation measures to achieve the City’s long-term vision to enhance the local economy, maintain the “City of Festivals” reputation, and simultaneously improve access to quality education, housing, and jobs.
The 2040 General Plan sets forth land use designations called place types that indicate the purpose and intended use for each parcel within the City. The place types specify additional guidance related to development form and character including allowable uses, building density, building placement, parking location and access, building frontage, and streetscape design. The existing General Plan designation within the Specific Plan Area is Mixed-Use Neighborhood (MUN) within the northwesterly area and Regional Commercial (RC) within the northeasterly and southerly area as shown in Figure 1-4, Existing and Proposed General Plan Place Type Designations.
Mixed-Use Neighborhood supports moderate- to higher-intensity neighborhood development that features a variety of multifamily housing choices and commercial uses along major streets. Allowed land uses 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.
Regional Commercial supports large-format retail development along with associated restaurant and commercial service activity. Allowed land uses include large-format retail, commercial services, lodging, entertainment, restaurants, parks and recreation.
Table 1-1
General Plan Place Type Designation
EXISTING PROPOSED
Place Type and
Intent
Max. Gross
Density/FAR
Zoning
Correlation
Place Type and
Intent
Max. Gross
Density/FAR
Zoning
Correlation
Mixed Use
Neighborhood (MUN)
DU/AC: Up to 40
FAR: up to 0.5
RH, NC, CC, P
Specific Plan (MU-SP)
• Mixed-Use
50 du/ac; 0.50
FAR
Mixed-Use
Regional Commercial
(RC) FAR: 0.35 to 1.0 RC, CC • Industrial 0.60 FAR Industrial *This results in a maximum allowable residential dwelling units of 3,240 and commercial square footage of 3,318,357-6,204,686.
In addition to Place Type Designations, the General Plan includes key strategies for specific subareas to encourage infill development ensuring the result is a connected, complete place with housing and commercial uses organized into a walkable, transit-supportive pattern of neighborhoods and centers.
The Oasis at Indio Specific Plan is located within Indio’s subarea, Avenue 42 Corridor. Avenue 42 Corridor is comprised of large areas of undeveloped land on both sides with good freeway access and is close to many of Indio’s newest neighborhoods.
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Figure 1-4: Existing and Proposed General Plan Type Designations
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While Avenue 42 Corridor encourages a pattern of connected neighborhoods, centers, and employment districts to leverage the economic and fiscal value of that area for future generations, the ultimate composition of the area may vary in response to market conditions.
With the adoption of The Oasis at Indio Specific Plan, the General Plan Land Use (Place Types) will be reclassified from MUN and RC to Specific Plan (SP) to establish an appropriate land use and zoning district designation that optimizes the Specific Plan Area’s potential and facilitates achievement of the Specific Plan’s goals and objectives.
This refinement is consistent with the community’s desire to provide more specific guidance on the intended future character of the City and allows the City to establish zoning designations that similarly communicate form and character.
1.1.2.2 Zoning
The City Council adopted new citywide zoning regulations called the Unified Development Code that became effective on October 22, 2022. The existing zoning designation for the site is Specific Plan (MUSP), Mixed-Use Neighborhood (MUN), and Regional Commercial (RC). With the adoption of The Oasis at Indio Specific Plan, the Specific Plan Area will be reclassified and zoned Specific Plan (SP) to permit the implementation of the proposed project subject to management and implementation tools to ensure that the goals and policies are fully satisfied in compliance with the City’s General Plan.
Table 1-2
Zoning Designation
EXISTING PROPOSED
Zoning Density/FAR Zoning Density/FAR
Regional Commercial 1.0 FAR Specific Plan (MU-SP)
Mixed Use
Neighborhood
20-40 du/ac; 0.50
FAR
Mixed-Use
Industrial
50 du/ac; 0.50 FAR
0.60 FAR
Gateway SP (MU 7) 20 du/ac; 0.25 FAR
* This results in a maximum allowable residential dwelling units of 929-1,338 and commercial square footage of 4,375,602.
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Figure 1-5: Existing and Proposed Zoning
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1.1.3 Relationship with the Bermuda Dunes Airport Plan
The Bermuda Dunes Airport is a privately-owned, public-use general aviation airport located along the central, western edge of Indio. As a result of the airport, certain restrictions apply to new projects within its Airport Influence Area as identified in the adopted Riverside County Airport Land Use Compatibility Plan (ALUCP) for Bermuda Dunes Airport. These zones and the land use restrictions associated with them are outlined in the 2004 ALUCP and included in Appendix A of this Specific Plan.
The Oasis at Indio Specific Plan is located within the influence area for the Bermuda Dunes Airport and Airport Compatibility Zones C, D, and E overlay the property.
As required by State law, the adoption of a specific plan affecting the property within an airport influence area (Public Utilities Code Section 21676(b)) and the adoption or approval of a zoning ordinance or building regulation which (1) affects property within an airport influence area, and (2) involves the types of airport impact concerns listed in Section 1.4 (Public Utilities Code Section 21676(b)) shall be referred to the Airport Land Use Commission (ALUC) for determination of consistency with the Commission’s Plan prior to the approval by the City of Indio.
The Riverside County Airport Land Use Commission held a public hearing on February 8, 2024, and issued a Finding of Consistency for the project on February 13, 2024. The ALUC approval letter, conditions of approval, and Airport Notice are included in Appendix A of this Specific Plan. ALUC Conditions of approval have been fully incorporated into this Specific Plan as identified in Appendix A.
1.1.4 Previous Entitlements
Several Master Plan entitlements were approved within the Specific Plan Area. In 1995, the Gateway Conceptual Specific Plan (GCSP) was approved, covering over 2,700 acres and proposing a planned mixture of commercial, business, office, and residential uses in Indio. The western portion of the project site (approximately 80 acres west of the Clinton Street alignment) is located within the GCSP, designated as Mixed-Use Planning Area MU7. To implement the GCSP, the City required that each planning area have approval of one or more Project Master Plans at a more detailed level of site design.
In 2007, the City of Indio approved the “Thymes Square” Project Master Plan on 63.2 acres (APN: 610- 020-010) located on the southeast corner of Avenue 42 and the Thousand Palms flood control channel right-of-way. The approval authorizes the development of Mixed Use on the Gateway Conceptual Specific Plan that includes 217 Residential units (32.6 acres) on the western half of the master plan, Open Space/Recreation (5-acre public park), Commercial/Business Park development (10 acres) on the northeastern potion, and Light Industrial/Business Park development (11.1 acres) on the southeastern portion of the master plan site.
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In 2008, the City of Indio approved the Clinton Freeway Business Park Project Master Plan - A 22.6-acre project (APN: 610-020-012 and 610-020-013) immediately south of the “Thymes Square” mixed-use project. The approval authorizes the development of a Mixed-Use business park with three basic components: showroom retail businesses (6.3 acres) taking advantage of the site’s direct freeway visibility, light industrial businesses (11 acres) requiring large indoor spaces for light manufacturing, assembly, and storage as well as “industrial incubator” units (4.3 acres) westerly of Clinton Street with more modest square footages to serve small businesses.
Neither Project Master Plan has been implemented and both sites currently remain vacant. The 80-acre portion located within the Gateway Specific Plan shall be withdrawn prior to the adoption of The Oasis at Indio Specific Plan.
1.2 Authority and Requirements
A “Specific Plan” is a planning and regulatory tool made available to local governments by the State of California. Specific plans implement an agency’s General Plan through the development of policies, programs, and regulations that provide an intermediate level of detail between General Plans and individual development projects. State law stipulates that specific plans can only be adopted or amended if they are consistent with an adopted General Plan.
The authority to prepare, adopt and implement specific plans is provided by California Government Code Sections 65450 through 65457. Procedures for preparing, processing, reviewing, adopting, and amending specific plans are provided in Article 6, Subsection 6.05.03, Chapter 22.46 of the City of Indio Unified Development Code. The State allows Specific Plans, including any associated regulations and programs, to be adopted by resolution or ordinance; approval of this specific plan shall be by ordinance in compliance with the City of Indio Unified Development Code. As required by the City of Indio and the California Government Code, the Specific Plan includes text and diagrams which specify the following in detail:
➢ The distribution, location, and extent of land uses proposed within the area covered by the Specific Plan, including open space areas.
➢ The proposed distribution, extent, intensity, and location of major components of public and private circulation/transportation, drainage, energy, sewers, solid waste disposal, water, and other essential facilities proposed to be located within the Specific Plan Area and needed to support the proposed land uses.
➢ Standards, criteria, and guidelines by which development would proceed, and standards for the conservation, development, and utilization of natural resources, where applicable. ➢ A program of implementation measures, including financing, regulations, programs, and public works projects, necessary to carry out the proposed land uses, infrastructure, and development and conservation standards and criteria.
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➢ A discussion of the relationship of the Specific Plan to the actions, goals, objectives, and policies of the adopted General Plan inclusive of detailed analysis as to how the Specific Plan complies with the actions, goals, objectives, and policies.
➢ Additional information deemed to be necessary by the Director based on the characteristics of the area to be covered by the plan, applicable actions, goals, objectives, and policies of the General Plan, or any other issue(s) determined by the Director to be significant.
For legislative changes, including Specific Plans, Specific Plan Amendments, General Plan Amendments, Development Code, and Zoning Map Amendments, the Planning Commission shall review the requested action and make a recommendation to the City Council, with the Council serving as the final decisionmaking body. Both the Planning Commission, in its advisory role, and the City Council, in its approval role, may approve, deny, or modify a specific plan.
The Oasis at Indio Specific Plan is the regulatory document guiding land uses and development within the boundaries identified in this Specific Plan. Upon adoption by ordinance by Council, this Specific Plan will provide the zoning design and development standards and regulations, as well as infrastructure systems, on which subsequent project-related development activities are to be based. Concurrently with adopting the Specific Plan, the General Plan 2040 shall be amended by resolution of the Council to specifically refer to The Oasis at Indio Specific Plan and change the land use designation of the area encompassed in the Specific Plan Area from Mixed-use Neighborhood (MUN) and Regional Commercial (RC) to Specific Plan (SP) on the General Plan Land Use Map. Additionally, the Zoning Map shall be amended and approved by the City Council to change the zoning of Specific Plan (MU-SP), Mixed-Use Neighborhood (MUN), and Regional Commercial (RC) to Specific Plan (SP) on the Zoning Map.
1.3 CEQA Compliance
An Environmental Impact Report (EIR) has been prepared for The Oasis at Indio Specific Plan in accordance with the California Environmental Quality Act (CEQA) and the implementing State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.). The EIR evaluates potential environmental impacts based on the highest development intensity associated with the two land use plan scenarios with Maximum Buildout Scenario (MBS) reflecting the most intensive development. ➢ MBS: A mixed-use development of up to 3,240 multi-family residential units and 20,000 sf of commercial uses on approximately 75.1 acres within Planning Areas (PA) 1, 2, and 3; and 1,806,290 sf of light Industrial use on approximately 92.8 acres within PA 4. ➢ Scenario #2: A mixed-use development of up to 1,237 multi-family residential units and 71,600 square feet of commercial uses including a 128-key hotel on approximately 75.1 acres within PAs 1, 2, and 3; and 1,806,290 sf of Industrial use on approximately 92.8 acres within PA 4.
The EIR also identifies feasible mitigation measures and potentially feasible alternatives to address any significant and adverse impacts of the Specific Plan on the environment. The City of Indio is required, by CEQA, to certify the EIR prior to the approval of The Oasis at Indio Specific Plan.
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Later activities that have been adequately analyzed under the EIR and are consistent with the specific plan are exempt from the requirements of CEQA, as long as subsequent projects are (1) within the scope of the approved EIR, and (2) the EIR adequately describes the activity for the purposes of CEQA (CEQA Guidelines § 15168). Accordingly, pursuant to Government Code Section 65457, it is anticipated that no additional EIR or negative declaration will be required for “any residential project, including any subdivision, or any zoning change that is undertaken to implement and is consistent with a specific plan.”
Additional CEQA compliance is required if, after the adoption of the specific plan, one or more of the following events occurs: (1) Substantial changes are proposed in the project which require major revisions to the EIR; (2) Substantial changes to the circumstances under which the development project is being undertaken which require major revisions to the EIR; or (3) New information, which was not known and could not have been known at the time the EIR was certified, becomes available. If any of these events occurs, certification of a subsequent EIR, supplemental EIR, an addendum to the EIR, or adoption of a negative declaration, would be required depending on the environmental impacts identified.
1.4 Specific Plan Goals and Objectives
The following Specific Plan Goals and Objectives form the physical, economic, and environmental framework upon which the Specific Plan is built.
Goal: Accommodate a range of land uses and maintain a level of variety and flexibility that will allow the plan to adjust to market conditions and meet the economic, housing, and service needs of the community.
➢ Provide uses that ensure long-term economic benefits and stability for the City of Indio. ➢ Develop a diverse set of land uses that permit a mix of commercial, industrial, and residential uses.
➢ Implement employment-generating land uses that would create new jobs for the City of Indio. ➢ Establish development standards and guidelines that facilitate business and employment opportunities, are adaptive to changing market conditions, and achieve local planning objectives.
Goal: Where industrial uses are near existing and planned residential development, ensure that industrial projects be designed to limit the impact of truck traffic, air, and noise pollution. ➢ Create a high-quality development that provides industrial land use activity adjacent to I-10. ➢ Encourage site plan designs to provide appropriate setbacks and/or design features that reduce negative impacts at the source.
➢ Encourage industrial land uses that accommodate buildings with loading bays that have a short direct access route to I-10 on- and off-ramps.
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➢ Design safe and efficient vehicle access to commercial land uses from arterial streets to ensure efficient vehicular ingress and egress.
➢ Utilize existing designated truck routes and develop a safe and efficient system for delivering goods and services.
Goal: Ensure that development has a positive effect on the City of Indio and a high quality of life for all residents.
➢ Ensure development along Avenue 42 results in a connected, complete place with housing and commercial uses organized into a walkable, transit-supportive pattern of neighborhoods and centers.
➢ Establish development standards along Avenue 42 to include sidewalks, trees, landscape, pedestrian furniture, safe pedestrian crossings, and direct connections to the front entrances of retail and services.
➢ Provide landscaping that improves the streetscape experience and is supportive of the site’s character and the character of the surrounding community. ➢ Encourage a mix of local- and regional-serving uses along Avenue 42 and Monroe Street that serves the needs of the community.
➢ Promote compatibility with surrounding uses through site design that provides appropriate transitions and buffer space.
Goal: Ensure the circulation network provides a safe and efficient level of connectivity for commercial and passenger vehicles, bicyclists, and pedestrians.
➢ Establish pedestrian connections between residential and retail commercial developments. ➢ Develop sidewalks for pedestrian use where existing gaps exist. ➢ Establish the opportunity for a Multi-Modal Transportation Network that serves all users and modes in a healthy, equitable manner.
➢ Encourage commercial/retail developments to have common driveways to minimize the number of curb cuts along any given block to improve pedestrian safety. ➢ Encourage residential and non-residential developments within a ½ mile radius of existing or planned transit stops, particularly along Avenue 42, to facilitate and take advantage of transit service, reduce vehicle trips, and allow residents without private vehicles to access services.
Goal: Provide adequate infrastructure, services, and utilities to meet the needs of the community. ➢ Ensure adequate infrastructure and utility service levels before approving new development. ➢ Require new development to pay their fair share for required improvements to public services and infrastructure.
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Goal: Provide a stand-alone regulatory instrument that will plan for the orderly and efficient buildout of the Specific Plan Area
➢ Establish appropriate land uses and development standards that optimize the Specific Plan Area potential and facilitate the achievement of project objectives. ➢ Establish appropriate land uses and development standards within the Airport Influence Area consistent with the densities, intensities, prohibited uses, and other development conditions defined in the Bermuda Dunes Airport Land Use Compatibility Plan.
1.5 Specific Plan Organization
The Oasis at Indio Specific Plan is organized into five Chapters and two appendices. The following describes each chapter and accompanying appendices:
➢ Chapter 1 Introduction - Provides local and regional context and setting; background; authority to prepare; relationship to other plans and documents; CEQA compliance; project goals and objectives and organization of the Specific Plan.
➢ Chapter 2 Development Plan – Explains the conceptual land use plan for the Specific Plan Area; circulation and mobility; grading; circulation, infrastructure, and public services. ➢ Chapter 3 Development Regulations – Identifies allowable uses, development intensities, and the general development standards, parking, and other regulations for development with The Oasis at Indio Specific Plan.
➢ Chapter 4 Objective Design Standards and Design Guidelines - Establishes design standards and guidelines for development within the Specific Plan Area, ensuring consistency with the vision and objectives of The Oasis at Indio Specific Plan.
➢ Chapter 5 Administration and Implementation – Discusses the development review procedures applicable to the Specific Plan Area; Implementation of the proposed land uses, including Specific Plan adoption, subsequent approvals and plans, substantial conformance findings, and phasing are outlined in this chapter. Additionally, financing sources and maintenance responsibilities are identified and administrative procedures regulating modifications and amendments.
➢ Appendix A: Airport Land Use Commission (ALUC) – Includes the ALUC approval letter, conditions of approval, and Airport Notice. Also included are the land use zones and associated land use restrictions as outlined in the 2004 Riverside County Airport Land Use Compatibility Plan (ALUCP) for Bermuda Dunes Airport.
➢ Appendix B: Track Implementation Form – Provides a mechanism for tracking Development Project Reviews/Entitlements.
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Chapter 2 – Development Plan
The greatest value offered by The Oasis at Indio is its location. The property is located immediately north of Interstate I-10, a regional transportation route; south of Avenue 42, which serves as a continuous east-west multi-modal transportation corridor within North Indio; and west of Monroe Street, which provides direct access to/from I-10. The Specific Plan Area is located just over one mile east of the Bermuda Dunes Airport. When creating a guiding vision for The Oasis at Indio the property’s setting and proximity to major transportation corridors and facilities were given the highest consideration.
The Oasis at Indio establishes a mixture of employment and residential land uses arranged sensible and efficiently that allows easy access and complements the surrounding community. To that end, The Oasis at Indio’s land use plan is a contemporary mixed-use center containing industrial, commercial, and multi-family residential land uses that take advantage of the property’s location near regional transportation corridors.
The Oasis at Indio is where businesses can locate and thrive and where multi-family housing opportunities are within walking distance of shopping, goods and services, employment opportunities, and public transit. The mixture of uses and their orientation on the property are designed for the benefit of the residents, visitors, the surrounding community, and the region.
Please note: Exhibits and illustrations are conceptual and are preliminary included to show intent.
Implementing plans will require further refinement and approval.
2.1 Land Use Concept Plan
As shown in Figure 2-1, Land Use Districts, The Oasis at Indio Specific Plan specifies two primary land use districts: 1) Mixed-Use, which allows residential and commercial uses, and 2) Industrial. For planning purposes, the approximate 183-acre property is divided into four Planning Areas (PA) for development and an area reserved for a possible future electric substation.
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Chapter 2 Development Plan
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Table 2‐1, Land Use Plan Statistical Summary, provides a high-level summary of the planned land uses and permitted intensity of uses within the planning areas of the Specific Plan. Table 2-1 reflects generally applicable standards and does not describe potential buildout, is further controlled by the development maximum reflected in Table 2-2 and the land use equivalency conversion ratios identified in Specific Plan Section 5.2.9, Land Use Conversion. The applicable development standards in Specific Plan Section 3.6, Development Standards, also apply to any future development within the Specific Plan’s Planning Areas. Each Planning Area may develop a singular anticipated use or as a combination of uses identified below in a horizontal or vertical mixed‐use development.
Further definition of each planning area will occur as individual developments are implemented through the Planning Review process and based on market demand.
Table 2-1
Land Use Plan Statistical Summary
Land Use District PA
Acreage
(Approximately)
Allowed Uses1
Multi-Family Residential Non-Residential
Mixed-Use 1 61.6
Max.50 DU/AC 0.50 FAR
Mixed-Use 2 4.2
Mixed-Use 3 9.3
Industrial 4 92.8 N/A 0.60 FAR
Public ROW Dedication 2.0 N/A
I.I.D Substation 2.4 N/A
Interior ROW 10.5 N/A
TOTALS 182.8 - - - -
1. The “Allowed Uses” and associated intensities are reflective of the Development Standards applicable to each Planning Area district. It does not reflect maximum buildout, however, as development within the Specific Plan is also limited to the intensity identified in Table 2-2, subject to the land use equivalency ratios identified in Specific Plan Section 5.2.9. There is no equivalency ratio for industrial use and residential or commercial square footage capacity cannot be converted to additional industrial square footage.
2.1.1 Specific Plan Development Limit
Notwithstanding the Specific Plan’s permitted densities/intensities and development standards, the development capacity limitations below also control maximum development (buildout) within the Specific Plan. It is important to note that while the equivalency tables allow variation in intensity between uses, the maximums identified below reflect the most intensive development that could occur within the Specific Plan. Any development variants that could occur using equivalency would be consistent with and within the scope of the maximums.
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Table 2-2
Development Potential Maximums
Land Use District PA Acreage
(Approximately)
Maximum Potential
Multi-Family Residential
Commercial
Non-Residential
Square Footage
Mixed-Use 1 61.6
50 DU/AC 20,000 square feet
Mixed-Use 2 4.2
Mixed-Use 3 9.3
Industrial 4 92.8 N/A 1,806,290 square feet
Public ROW Dedication 2.0 N/A
I.I.D Substation 2.4 N/A
Interior ROW 10.5 N/A
TOTALS 182.8 3,240 DU 1,826,290 square feet
The “maximums” identified in Table 2-2 reflect the most intensive development that could occur within the Specific Plan. However, the exact development may not reflect the uses developed. The square footage of commercial non-residential uses may increase while development of residential units would decrease, for instance, consistent with the land use equivalency conversion ratios in Section 5.2.9.
2.1.2 Planning Area 1-3
Planning Areas 1, 2, and 3 comprise approximately 75.1 acres in the northern and northeastern quadrant of the Specific Plan Area. As shown on Figure 2-1. ➢ Planning Area 1 is bordered on the north by Avenue 42; on the west by the Thousand Palms Stormwater Channel; on the east by PA 2; and on the south by an internal east-west roadway (“A” Street);
➢ Planning Area 2 is bordered on the north by Avenue 42; on the east by Monroe Street; on the south by “A” Street; and on the west by PA 1; and
➢ Planning Area 3 is bordered on the north by “A” Street; on the east by Monroe Street; on the south by the I-10 on-ramp; and on the west by PA 4.
The mixed-use designation allows for medium to high-density multi-family residential and commercial land uses in a vertical or horizontal mixed-use development within walkable distance to surrounding neighborhoods, a variety of nearby retail, commercial centers, workplaces, public transit, and the Coachella Valley alternative transportation corridor (CV Link). Multi-family residential housing will contribute to a diverse set of land uses, ensuring a mixed-use development and a variety of housing types and densities within a walkable urban format of The Oasis at Indio Specific Plan and the surrounding area.
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Residential development is envisioned to include private on-site amenities such as fitness rooms, community pools, clubhouses for the residents and their guests, common open space areas, walkways, landscape parkways and buffer areas, and parking. The final site plan and housing type will largely depend on future developers.
Planning Areas 2 and 3 front Monroe Street between Avenue 42 and the westbound I-10 onramp. This prominent location affords the opportunity to attract and provide a high-quality and viable balance of commercial uses and moderate- to high-intensity multi-family residential housing. The development of PA 2 would provide employment opportunities and various retail services such as restaurants, shops, and other amenities within walking distance of existing nearby neighborhoods and future residents of the project.
Designed to complement the uses of PA 2, Planning Area 3 would allow for a range of commercial uses that benefit from visibility and access from the I-10 Freeway. A hotel would be allowed in the mixed-use zones to serve the surrounding community and region, such as visitors to the nearby Polo Club, Acrisure Arena, annual music festivals, and Bermuda Dunes Airport. For a list of permitted uses and additional information, refer to Chapter 3, Section 3.5, Permitted Uses, and Section 3.6, Development Standards.
Frontage along Avenue 42 would provide parkways containing sidewalks, shade trees, and landscaping to enhance the pedestrian experience and is supportive of the site’s character and the character of the surrounding community. See Chapter 4, Objective Design Standards and Guidelines, for the placement, orientation, and design along Avenue 42.
A landscaped transition zone is planned along the southern boundary of PA 1 to soften the overall site design, support compatibility with surrounding land uses, and serve as a water quality/retention basin as part of the development’s drainage system. See Figure 2-5.
2.1.3 Planning Area 4
Encompassing approximately 92.8 acres in the southern portion of the Specific Plan, Planning Area 4 is the largest of the planning areas and is designated for industrial land use. As shown in Figure 2-1, PA 4 is bordered on the north by “A” Street, on the east by PA 3, on the south by the I-10 freeway, and on the west by the Thousand Palms Stormwater Channel.
Planning Area 4 is designed to accommodate buildings of various sizes that house users such as general light industrial, manufacturing, and warehouse/distribution operations. These uses typically attract both passenger car and truck traffic that benefit from a short, direct route to the regional transportation (freeway) system. Heavy manufacturing uses are not accommodated in this Planning Area.
The buildings in PA 4 are configured to provide a sustainable design with proper balance in size, aesthetics, energy efficiency, accessibility, safety, and security. Enhanced landscaping and decorative screen walls along the northern boundary of PA 4 provide an additional buffer treatment to further soften the transition and reduce potential impacts to the uses north of PA 4. A potential Imperial Irrigation District (I.I.D) substation and water quality/detention basins are proposed along the southern portion of PA 4. The water quality/detention basins provide additional green space as part of the development’s storm drain system. “A” Street provides east-west vehicular access from industrial uses in PA 4 to the existing signalized intersection at Monroe Street with immediate access to the Interstate 10/Monroe Street on- and off-ramps.
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Note: The site designs illustrated in Figures 2-2A and 2-2B are conceptual in nature and exemplifies two possible design scenarios that have been developed in accordance with the design criteria of The Oasis at Indio Specific Plan. These concepts may not represent the ultimate use or building layout within the Specific Plan, which will be determined with future site-specific development proposals.
2.2 Circulation and Mobility
The main objective of the Circulation Plan is to provide direct, safe, and convenient vehicular and nonvehicular access for residents, visitors, and employees to, from, and through, the Specific Plan’s four Planning Areas.
Development of The Oasis at Indio requires improvements to existing perimeter public streets and “A” Street, an east-west internal private roadway. The project will also include an amendment to the City’s General Plan to reflect the updated circulation network, including the vacation of Clinton Street. The internal roadway is designed to coordinate the movement of vehicles and pedestrians, minimize potential conflicts, and promote a safe and comfortable pedestrian environment, consistent with the General Plan.
2.2.1 Vehicular Circulation
The circulation system depicted in Figures 2- 3A and 2-3B, Conceptual Vehicular Circulation and Mobility Plans, identifies the roadway improvements and design needed to support the Land Use Plan under Options A and B of the Traffic Analysis Report, provides mobility choices to all users, and limits truck traffic on Avenue 42.
As a component of this project, a comprehensive traffic analysis was prepared to evaluate existing conditions, forecast future conditions, and identify recommended roadway segment and intersection improvements to address project-related significant impacts associated with the build-out of the anticipated land use plan. This analysis is provided in the technical appendices of The Oasis at Indio Specific Plan EIR.
Monroe Street serves the Specific Plan to the east and Avenue 42 to the north. Concurrent with the development of The Oasis at Indio, improvements to Monroe Street and Avenue 42 will result in completed street half-sections consistent with the City’s General Plan Mobility Element as may be refined by the City Engineering Department. All street improvements will be constructed in accordance with applicable City of Indio design standards and specifications.
Interstate 10, which is under the authority of CalTrans, is located immediately south of the Specific Plan Area, forming the southern boundary of Planning Areas 3 and 4. A portion of land at the southeast corner of the Specific Plan Area has been identified by CalTrans for expanded interchange improvements along I-10/Monroe Street westbound on-ramp. Approval of The Oasis at Indio Specific Plan does not preclude CalTrans’ plans for the Monroe Street interchange improvements or the operation and maintenance of Interstate 10. Drivers traveling between the Specific Plan Area and the freeway system will have convenient access via the on- and off-ramps at Monroe Street, Jackson Street (one mile east), and Jefferson Street (two miles west).
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2.2.1.1 Monroe Street
Monroe Street forms the eastern boundary of the Specific Plan and consists of two lanes in each direction, with signalized turn lanes eastbound onto Showcase Parkway (existing) and westbound onto Avenue 42. Additional features include a non-landscaped barrier curb, curb-adjacent sidewalks, and streetlights within the public right-of-way. Monroe Street is classified in the City’s General Plan Mobility Element as a 6-lane Major Arterial with vehicular efficiency prioritized. Bicycle lanes can be provided and further enhanced or complemented by other facilities or off-street pathways. As shown below, the existing segment of Monroe Street between Showcase Parkway and Avenue 42 is currently improved with an ultimate right-of-way (ROW) width of 134 feet with 116 feet of pavement, including a four-footwide barrier curb and curb and gutter improvement, and a nine-foot-wide parkway on both sides of the street. On-street parking is not allowed. Monroe Street is a designated truck route within the General Plan. Improvements along Monroe Street may be required in conjunction with the implementation of the Specific Plan.
As part of the I-10 Freeway improvements, Caltrans proposes to widen Monroe Street, South of Showcase Parkway, to incorporate an expanded median and two additional through traffic lanes, as well as relocating the dedicated right turn lane to the westbound freeway on-ramp.
2.2.1.2 Avenue 42
Avenue 42 currently consists of one paved lane in each direction with above-ground utility poles along the Specific Plan Areas frontage and an unimproved dirt median east of Clinton Street. Avenue 42 is a designated truck route within the General Plan.
As shown in the following cross section, Avenue 42 (west of Clinton) would feature an ultimate 92-footwide right-of-way with 44 feet of pavement, a 12-foot-wide raised median, curb and gutter improvements, a five-foot Class IV bike lane, and a 10-foot-wide parkway on both sides of the street.
Avenue 42 east of Clinton, may vary due to existing power pole constraints.
Intersection improvements for pedestrians should be emphasized to improve comfort, safety, connectivity, and accessibility. Half street improvements along the southern portion of Avenue 42 abutting the specific plan frontage would be required in conjunction with the development of the Specific Plan.
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2.2.1.3 Clinton Street
The General Plan Mobility Element does not classify Clinton Street as an arterial or collector but shows it extending south of Avenue 42 in a north-south alignment through PA 1 of the Specific Plan Area. Under the proposed plan, Clinton Street will be vacated and may be improved with access depending upon buildout of Planning Area 1. However, any access will be a private drive and will not provide access to “A” Street. The intersection of Clinton Street and Avenue 42 will be improved to accommodate this access, consistent with the Traffic Impact Analysis, and will operate as either a signalized (Option A) or unsignalized (Option B) intersection to support safe and efficient project circulation.
2.2.1.4 Internal Circulation
An east-west private collector street (“A” Street) provides internal circulation through the Specific Plan Area. “A” Street will connect to the existing signalized intersection on Monroe Street and would provide primary access for PA 2, PA 3, and PA 4. Driveways on the south side of the collector street are leftin/right-out only providing commercial trucks a direct route to/from the I-10 freeway via Monroe Street, limiting truck traffic on Avenue 42.
As shown in the cross-section below, “A” Street features a 100-foot-wide right-of-way with 80 feet of pavement, curb and gutter improvements, and a 10-foot-wide parkway on both sides of the street.
2.2.2 Non-Vehicular Circulation
A comprehensive network of pedestrian and bikeway facilities are provided within The Oasis at Indio as shown in Figure 2-4, Conceptual Non-Vehicular Circulation and Mobility Plan. The purpose for the nonvehicular circulation plan is to provide a Complete Street that incorporates a pedestrian- and bicyclePage 534 of 1229 AGENDA ITEM #12.2 Public Hearing to Consider Denial or Approval of the Oasis at Indio Proj... Page 1541 of 2236 Chapter 2 Development Plan
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friendly environment and enhance connectivity across all travel modes to encourage the use of nonvehicular modes of travel.
2.2.2.1 Bikeways
Roadway improvements along Avenue 42 and Monroe Street will include a Class IV Separated Bikeway or Cycle Track – currently, no bike path or lane exists. The Class IV Separated Bikeway or Cycle Track provides a delineated right-of-way with a physical separation or barrier between bicyclists and motor vehicle traffic. This separation can include parked vehicles, bollards, curbs, or any other physical device that provides this separation.
The Thousand Palms Stormwater Channel abutting, the Specific Plan’s westerly boundary, is identified in the City of Indio General Plan Planned Bicycle Network (Figure 4-1) as part of the Coachella Valley alternative transportation network associated with CV Link – a 50-mile pathway for bicycles, pedestrians, and low-speed (up to 25 mph) electric vehicles that follows the general alignment of the Coachella Valley Stormwater Channel from Palm Springs to Coachella. In this location, the channel corridor represents an opportunity for a future Class I multi-use pathway providing a separate facility for bicycle and pedestrian travel independent of adjacent roadways. This corridor functions as a regional connection consistent with the City’s planned bicycle network and the broader CV Link vision..
2.2.2.2 Pedestrian ways
Existing sidewalks are located on the east and west sides of Monroe Street. Currently, there are no sidewalks along Avenue 42 west, of Monroe Street.
The southside widening of Avenue 42 will include a pedestrian sidewalk. The development of “A” Street will include sidewalks on both sides of the roadway. In addition, a decomposed granite trail will parallel along the north side of “A” Street in the landscape transition zone. Streetscape elements, including trees and landscaping, will be an important component of the Complete Streets design.
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