The specific purposes of these regulations are to assure that
condominium hotel projects are conditioned upon development approval
in such a way as to ensure appropriate public health, safety, welfare
and land use classifications and standards; to mitigate potential
impacts of condominium hotels on traffic congestion, parks and recreation,
air quality, building design and safety, police, fire and emergency
services; to assure other adequate public facilities; to allow condominium
hotel development projects' financial flexibility; to prohibit conversion
of existing hotels to condominium hotels; and to provide the City
of Indian Wells (the City) with appropriate licensing, taxation, and
ownership and operational controls.
(Ord. 584 § 1, 2006)
The following definitions shall govern the construction and interpretation of this Chapter. In the event a term that is used in this Chapter is not expressly defined herein, the definitions contained in Chapter 21.08 shall govern.
means a commercial condominium project with housing units within a hotel, which units are individually owned, and, except as permitted in Sections 21.33.060 and 21.33.070, one hundred (100) percent of which are made available for transient use, as that term is defined in Section 3.12.020(h) of the Indian Wells Municipal Code, as short-term vacation or tourist rentals when not being used by the unit owner, as well as convention uses, group sales, special events and other uses typically associated with resort hotels.
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For purposes of this Chapter, the term "development agreement"
means any of the following: (1) a statutory development agreement
entered into pursuant to Government Code Sections 65864 et seq.; (2)
a disposition and development agreement entered into between an applicant
and the City's Redevelopment Agency; or (3) an owner participation
agreement entered into between an applicant and the City's Redevelopment
Agency.
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means the date on which the ordinance adopting this Chapter
becomes effective.
means a condominium hotel where both of the following apply:
(1) the condominium hotel has a brand that is included in the "upscale
segment" or "luxury segment" as defined by J.D. Power and Associates
as of the effective date; and (2) the condominium hotel satisfies
the published requirements that will be sufficient for a ranking of
no less than Four Stars in the most recent annual awards list published
by AAA or Mobil Travel Guides as of the effective date. Changes in
the J.D. Power and Associates, AAA or Mobil Travel Guide criteria
and listings may be adopted on an annual basis as amendments to this
Chapter, or by resolution of the City Council, or as approved pursuant
to a development agreement that specifically defines the first class
hotel standard.
means a building containing five (5) or more housing units
available to vacationing or tourist members of the public for compensation,
which may include convention uses, group sales, special events and
other uses typically associated with resort hotels.
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The terms "housing unit," "condominium hotel unit," or unit shall all have the same meaning as provided in Section 21.08.296.
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means the use or occupancy of a unit by a Unit Owner, or by a non-rental paying guest of an Owner, or when a guest of an Owner does not rent and pay for the Owner's unit through the Condominium Hotel management or entity approved by the City pursuant to Section 21.33.090, then any rental paying guest of Owner for whom the Unit Owner may, and does, reserve its Unit in accordance with the procedures set forth in the CC&Rs. Use of a unit arising out of an exchange program with an affiliated hotel property shall be subject to transient occupancy tax per Municipal Code section 3.12.020(e) based on the equivalent daily rental value for that room exchanged free of charge or otherwise reduced in the program. Such use shall not be considered personal use by the owner; provided, however, that no provision herein shall be deemed to permit a timeshare, fractional, or other vacation ownership unit if otherwise prohibited by the Indian Wells Municipal Code.
means an individual or entity that acquires any ownership
interest in, and holds title to, one or more condominium hotel units.
(Ord. 584 § 1, 2006; Ord. 585 § 1, 2006)
No person or entity shall construct or operate a condominium hotel within the City without first obtaining all necessary entitlements pursuant to this Chapter. Except as specifically provided for in this Chapter, all other provisions of the Indian Wells Municipal Code, including, without limitation, Title 16 (Buildings and Construction), Title 20 (Subdivisions), and Title 21 (Zoning Code) shall be applicable to the construction and maintenance of condominium hotels; provided however, that the more specific provisions contained in this Chapter shall prevail over any general provisions set forth in the Indian Wells Municipal Code. A condominium hotel shall be allowed as a conditionally permitted use, subject to the terms of this Chapter, and only within those zoning districts in which hotels or similar tourist and vacation accommodations are expressly permitted either conditionally or as of right, pursuant to the terms of Title 21. Each application for a condominium hotel will be reviewed by the City's Planning Commission and City Council. If the Planning Commission recommends granting approval of the application, the City Council shall set notice of a public hearing to be held within forty five (45) days thereafter or such later date as may be set by the City Council.
(a)
Each condominium hotel is subject to subdivision approval by the
City as a tentative subdivision or as a vesting tentative subdivision.
(b)
Approval shall be subject to required conditions necessary to carry
out the provisions of this Chapter.
(c)
A detailed site plan shall also be required to be approved concurrently
with any condominium hotel application.
(Ord. 584 § 1, 2006)
An application for a condominium hotel shall include a minimum
of the following six (6) requirements, in addition to any other information
that the City may determine is necessary to review the application.
No condominium hotel may be approved without approval of all of the
following requirements.
(a)
Detailed Site Plan. A detailed site plan shall include the following:
(1) a legal description of the subject property; (2) the property
owner's name and address; (3) easements, liens and encumbrances; (4)
proof of title in the applicant, or authority of the applicant to
apply on behalf of the title owner; (5) location of boundary property
lines; (6) location, width, and names of all existing or platted streets
or other public ways within or adjacent to the project; (7) location,
sizes, elevations and slopes of existing sewers, water mains, culverts,
and other underground structures within the project and immediately
adjacent thereto; (8) any existing permanent buildings; (9) all existing
uses contiguous to the property within a distance of four hundred
feet from any project boundary; and (10) preliminary landscape design
and plans for all buildings and structures proposed on site to meet
the exterior and interior standards required for the condominium hotel.
(b)
Development Agreement. A proposed development agreement application,
which shall provide for enforcement of all conditions and standards
required by this Chapter. In addition to any other provisions that
may properly be included within the development agreement, the parties
may agree to terms and conditions that are different from, or in addition
to, and supersede the provisions and requirements of this Chapter.
(c)
Conditions, Covenants and Restrictions (CC&Rs). The proposed CC&Rs for the condominium hotel containing all the specific provisions required by Section 21.33.070 of this Chapter. The CC&Rs shall, at a minimum, provide how the development will, on an ongoing basis, be managed and operated, and how the management and operation will be funded. The information required pursuant to Section 21.33.100 shall be included in the CC&Rs or, unless specifically required by this Chapter to be included in the CC&Rs, in any other legally binding agreement that is first approved by the City Manager and City Attorney in writing.
(d)
Environmental Assessment. Information necessary for the City to perform
an environmental assessment of the proposed condominium hotel project,
pursuant to the California Environmental Quality Act (Public Resources
Code, Sections 21080 through 21094 and its implementing regulations).
(e)
Subdivision Application. Each condominium hotel application shall
be accompanied by an application for a tentative or vesting tentative
map pursuant to Title 20 of the Indian Wells Municipal Code.
(f)
Specific Plan. Each condominium hotel application shall be accompanied
by an application for a specific plan, pursuant to Government Code
Sections 65450 et seq.
(Ord. 584 § 1, 2006)
The condominium hotel shall comply with all the development,
use, area, parking and other applicable standards of the zone in which
the project is located.
(Ord. 584 § 1, 2006)
In addition to the standards referenced in Section 21.33.050, each condominium hotel is required to meet the following standards, conditions and requirements, as well as all other provisions of this Chapter:
(a)
Each condominium hotel shall be designed to provide a sufficient
level of recreation facilities and other amenities (as determined
by the City Council) to serve the occupants, as the extent of the
facilities provided should be proportional to the size and number
of units at the project.
(b)
The CC&Rs submitted with the condominium hotel application shall,
except as may be specifically provided otherwise in a development
agreement, require operation, on a seven (7) day a week basis, of
the following services: room service, housekeeping, food and beverage
service, concierge, parking and bellman services.
(c)
For purposes of determining any payments referenced in subsection (j) of this Section, a central reservation system for rental of all units, as customarily employed by qualified condominium hotel management as referenced in Section 21.33.100, shall, except as may be specifically provided otherwise in a development agreement, be provided for all units in the rental program.
(d)
All unit owners shall obtain third party insurance as required by
the condominium hotel management.
(e)
No condominium unit may be converted into any form of permanent residence.
(f)
No more than one (1) unit in each condominium hotel may be used for the occupancy by a person or family serving as the on-site manager of the condominium hotel. Such unit must be owned by the declarant under the CC&Rs, the condominium hotel association, or the condominium hotel management, and shall not be used for homestead purposes. This unit shall be exempt from the thirty (30) day lease limit requirement as described in Section 21.33.070 of this Chapter.
(g)
All condominium hotel units shall, except as may be specifically provided otherwise in a development agreement, be completely furnished with furniture and appliances to the standards established by qualified condominium hotel management as referenced in Section 21.33.100. A furniture, fixtures and equipment reserve account shall be established and maintained in order to maintain and, when necessary, replace the furniture, fixtures and equipment within the units to maintain the facility in its first class hotel standard. In addition to the foregoing account, a reserve fund shall be established and maintained pursuant to California general law and Department of Real Estate regulations.
(h)
A front desk and lobby area accessible to members of the public,
except as may be specifically provided otherwise in a development
agreement.
(i)
The proposed location, use, and design of the condominium hotel shall
be consistent with the City's comprehensive plan, zoning ordinances,
and any specific plan covering the area in question.
(j)
Every condominium hotel shall be subject to the City's transient occupancy tax (Chapter 3.12 of the Indian Wells Municipal Code), as may be amended from time to time. If for any reason a transient occupancy tax is not collected or collectable pursuant to Chapter 3.12, as it may be amended from time to time, the City may require, as a term of the required development agreement, that an amount determined by mutual agreement of the applicant and the City Council shall be paid monthly or quarterly (at the sole election of the City Council) in an amount equivalent to the funds that would have been raised by the collection of the transient occupancy tax. Upon request of the City Manager or designee, the condominium hotel shall promptly provide to the City and its agents access during normal business hours to all rental records, tax receipts or any other documents relating to the condominium hotel and the condominium hotel units necessary to verify conformance with the collection of the transient occupancy tax, including, without limitation, all records pertaining to the use of each hotel unit as required under the last sentence of Section 21.33.100(c).
(k)
The hotel operator and unit owners in a condominium hotel shall not
be qualified to receive golf benefits, unless pursuant to the development
agreement unit owners receive a condo-hotel resort benefit identification
card for benefits in exchange for an additional amenity fee or other
consideration to be provided to the City.
(l)
Each unit owner shall become a member of a condominium hotel association
pursuant to the CC&Rs, comprised of unit owners within the same
condominium hotel. No unit in a condominium hotel shall be used as
a timeshare, fractional or other vacation ownership unit.
(m)
Any proposed condominium hotel that does not, as proposed, qualify
as a first class hotel shall not be eligible to operate as a condominium
hotel in the City of Indian Wells.
(n)
All ancillary or accessory uses to a condominium hotel, such as dining
rooms, restaurants or cafes, shall be operated within the same building
or buildings and principal access to all facilities shall be through
an inside lobby, which shall have a front desk or office, which front
desk or office shall be supervised by a person in charge at all hours,
except as may be specifically provided otherwise in a development
agreement. Condominium hotel facilities shall be classified as a vacationing
tourist dwelling facility, which may include convention uses, group
sales, special events and other uses typically associated with resort
hotels, and shall not permit permanent owner occupancy.
(o)
Each condominium unit must be made available to hotel guests for
transient use, except as may be specifically provided otherwise in
a development agreement.
(p)
Any proposed condominium hotel which seeks exception to the standards, conditions, and requirements of this Chapter 21.33 shall be found to substantially comply with all standards, conditions, and requirements of this Chapter through proximity of traditional hotel resort uses and amenities which provide the resort experience.
(Ord. 584 § 1, 2006; Ord. 712 § 2, 2018)
Each condominium hotel is required to provide the City with
a copy of the condominium hotel's CC&Rs, which must be approved
by the Community Development Director and the City Attorney prior
to final approval of the condominium hotel application, and thereafter
recorded against the subject property in the County Recorder's Office.
All CC&Rs shall include the following provisions:
(a)
The CC&Rs shall stipulate that one hundred (100) percent of the units in the condominium hotel must be made available as rental units for hotel guests when not being used by the unit owner for the unit owner's personal use, or such lesser percentage than one hundred (100) percent as may be approved in the development agreement. In the event any owner's personal use exceeds the time period contained in Section 3.12.020(h) of the Indian Wells Municipal Code (Uniform Transient Occupancy Tax Ordinance), as such section exists or may be amended from time to time, the owner shall be subject to the transient occupancy tax provided for in Chapter 3.12, except as may be specifically provided otherwise in a development agreement. Owners' personal use may not exceed these limitations, unless an amount in-lieu of the City's transient occupancy tax is collected and paid to the City pursuant to Section 21.33.060(j), except as may be specifically provided otherwise in a development agreement.
(b)
The CC&Rs shall provide for the enforcement by the City, in its
direction, of this Chapter and any conditions imposed on the condominium
hotel or any unit(s), as well as notice to future unit owners.
(c)
Subject to applicable California general law and Department of Real Estate regulations, the CC&Rs shall provide that the obligation to pay the per diem amounts due pursuant to Section 21.33.060(j) shall constitute a lien by the City on the units for the amount owed, including any permitted penalties or interest, and that the City shall have the right, but not the duty, to foreclose on any such liens through equitable or legal proceedings.
(d)
The CC&Rs shall provide that they shall not be amended without
the prior written approval of the City Council.
(Ord. 584 § 1, 2006; Ord. 712 § 3, 2018)
Upon request of the City Manager, the management of each condominium
hotel and each unit owner must provide the City and its employees
and agents with access to all rental records, tax receipts or any
other documents necessary to verify conformance with all of the standards,
conditions and requirements set forth in this Chapter.
(Ord. 584 § 1, 2006)
The condominium hotel application and CC&Rs shall require the condominium hotel association to hire a qualified professional management entity or branded company as management in order to maintain and operate all portions of the condominium hotel in a manner consistent with the first class hotel standard required by this Chapter. A condominium hotel association shall be established to govern, maintain and operate the condominium hotel and its services. For these purposes, the association may hire a professional management company, as provided in Section 21.33.100 of this Chapter or may contract with any other entity approved by the City Council pursuant to a contract approved by the City Council. Neither the identity of any such entity nor the contract approved by the City Council may be amended without the prior written consent of the City Manager and City Attorney.
(Ord. 584 § 1, 2006)
The approved condominium hotel management or the entity approved by the City pursuant to Section 21.33.090 shall enter into a contract with the condominium hotel association to manage the condominium hotel. The condominium hotel management shall have at least five (5) consecutive years of experience in the hotel management business in hotels that meet the first class hotel standard and have no fewer than ten (10) other properties (each in separate cities, or distinct and separate projects in any given City, nationally or internationally) under current management. The applicant shall provide the City with appropriate documentation to demonstrate that the condominium hotel management meets the requirements of this subsection to be approved by City Council along with the condominium hotel application. Any future changes in the condominium hotel management shall require review and approval by the Community Development Director. Upon request by the applicant, the experience standards may be modified for the condominium hotel management upon finding that the condominium hotel management has substitute experience meeting the interests served by the standards. The condominium hotel management shall ensure that all portions of the condominium hotel are maintained and operated in accordance with the first class hotel standard, including but not limited to the lobby and hallways, front desk, concierge services, landscape and open space areas, parking, banquet/ballroom facilities, conference, restaurant, retail, recreational, and spa facilities, and other amenities and improvements. It shall be the responsibility of the unit owners to maintain the individual condominium hotel units, as well as their furniture, fixtures and equipment.
(a)
As part of the submittal requirements for the condominium hotel application,
the applicant shall submit a budget for the condominium hotel association
estimating annual costs and expenditures for the management and maintenance
of the condominium hotel.
(b)
The CC&Rs shall give the condominium hotel association or the entity approved by the City pursuant to Section 21.33.090, and the condominium hotel management the right, power and obligation to enforce the first class hotel standard including, without limitation, the right to enter any portion of the condominium hotel, and any individual condominium hotel units upon sale or assignment of the Unit, to cure any failure to meet the first class hotel standard. The condominium hotel management shall offer transient rental services to all owners of the condominium hotel units.
(c)
The CC&Rs shall give the condominium hotel management the exclusive
right to provide to the condominium hotel, the property, and to unit
owners, lessees and other occupants, any or all "on property" services
commonly provided at first class hotels, restaurants and resorts,
including without limitation, reservation programs, maid and housekeeping
services, maintenance, laundry and dry cleaning, room service, catering
and other food and beverage services, massage, personal training and
other spa services. The use of such services, if offered, shall be
conditioned upon payment of such charges or fees as may be imposed
on unit owners or hotel guests by the condominium hotel management.
Unit owners shall be required to enter into a unit maintenance agreement
with the condominium hotel management, to be approved by the City
Council as part of the condominium hotel application. The condominium
hotel association and its designees shall have the exclusive right
to restrict and control access to any and all shared facilities within
the condominium hotel, provided the same does not restrict a unit
owner's right of access to its own unit. The condominium hotel management
shall monitor and document the use of each and all of the hotel units.
(d)
At its sole cost and expense, each individual unit owner may choose
to hire any rental agent, including the condominium hotel manager,
for the purpose of advertising the rental availability of and procuring
potential renters for the owner's unit.
(Ord. 584 § 1, 2006)
Each owner, the condominium hotel association and condominium
hotel management shall maintain and regularly make available to the
City Manager or designee such information, books, records, and documentation,
and also shall allow reasonable access to individual units, as the
City Manager or designee finds necessary to have or review in order
to ensure that the City may determine and enforce the condominium
hotel's compliance with this Chapter and other applicable City laws,
regulations, the condominium hotel conditions, the development agreement,
and the CC&Rs. The original and, upon each change, every subsequent
condominium hotel management shall immediately advise the community
development director of its name, qualifications, address, telephone
number and the name of a contact person.
(a)
At any and all times when a condominium hotel unit owner has not
reserved its condominium hotel unit for personal use, the condominium
hotel unit shall be made available to hotel rental guests as a rental
unit. Hotel guests are prohibited from remaining in any unit for more
than thirty (30) consecutive days.
(b)
Owners of condominium hotel units may not exceed the personal use limits set forth in Section 21.33.070 of this Chapter. Excepting those days during which occupancy is prevented due to repair or maintenance, or both, every condominium hotel unit must be made available as a rental unit for hotel guests (i.e., guests who rent and pay for the owner's unit through the condominium hotel management or entity approved by the City pursuant to Section 21.33.090) at least three hundred four (304) cumulative days or portions thereof out of every calendar year, unless an amount in-lieu of the City's transient occupancy tax is collected and paid to the City pursuant to Section 21.33.060(j) or unless as may be specifically provided otherwise in a development agreement. In the event that there is no provision in the development agreement required by Section 21.33.020(b) and further described in Section 21.33.060(j) regarding payment of a specific amount in-lieu of the City's transient occupancy tax, then no unit may be used for personal use more than sixty (60) cumulative days in a calendar year.
(Ord. 584 § 1, 2006; Ord. 585 § 1, 2006; Ord. 712 § 4, 2018)
An express purpose of these regulations is to preserve and enhance
the City of Indian Wells' existing hotel inventory. All existing hotels
are prohibited from converting to condominium hotels from and after
the effective date. Thereafter, no other conversions to condominium
hotels shall be allowed in any zone.
(Ord. 584 § 1, 2006)
Each unit owner of a condominium hotel unit, as those terms are defined in Section 21.33.020, is subject to and shall pay to the City an amenity fee tax of a maximum of two thousand four hundred dollars ($2,400.00) per year (subject to automatic increase as set forth hereinafter), and any portion of a full year, during which a certificate of occupancy is valid for that condominium hotel unit. Such amenity fee tax may be used by the City of Indian Wells for any lawful purpose. The maximum amenity fee tax shall automatically be increased on July 1st of each calendar year (there shall be no decrease in any year) to reflect cost of living increases. Each increase shall be in an amount equal to the percentage change in the CPI (defined below) during the prior twelve (12) month period (as set forth below, and calculated as provided below), and this product shall be added to and become part of the maximum amenity fee tax. The CPI to be used shall be the Consumer Price Index for All Urban Consumers in the Los Angeles-Anaheim-Riverside area (or any successor index or other comparable index selected by the City). On each adjustment date, the Index for the calendar month that is two (2) months prior to the adjustment date shall be compared with the Index for the calendar month that is one (1) year prior thereto, and the percentage increase shall be multiplied by the amount of the maximum amenity fee tax then in effect to determine the increase in the maximum amenity fee tax for the ensuing year. Notwithstanding the maximum amount of the amenity fee tax, the City Council is authorized to periodically increase or decrease by ordinance (including without limitation an ordinance adopting a development agreement pursuant to Government Code Section 65864, et seq.) or resolution, the amenity fee tax provided that the resulting amenity fee tax does not exceed the maximum amenity fee tax. The City Council may also impose an amenity fee tax, not to exceed the maximum amenity fee tax, from time to time in different amounts for different condominium hotels based upon the following criteria:
(a)
The size or number of units in a condominium hotel;
(b)
The quantity, quality and type of amenities which are located within
or are a part of a complex comprised, at least in part, of a condominium
hotel;
(c)
The likelihood that a condominium hotel will produce other revenues
and/or benefits to the City and/or the City's residents; and
(d)
Any other factors which, in the reasonable determination of City
Council, would mitigate against assessing as high an amenity fee tax
as required to be paid by others in the City.
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For this purpose, the City Council understands and determines
that there is a rational basis for charging a different amenity fee
tax upon different taxpayers, due to the foregoing factors. Any one
or more of the factors relate to varying needs imposed upon the City
to provide service to, and/or generation of revenue by, different
condominium hotels. In order to decrease or increase the amenity fee
tax for any calendar year as permitted hereunder, the City Council
shall do so on or before January 1st to take effect the following
July 1st; except that any amenity fee tax established by an ordinance
adopting a development agreement pursuant to Government Code Section
65864, et seq., shall take effect when specified in the development
agreement. All laws applicable to the levy, collection and enforcement
of general ad valorem taxes of the City of Indian Wells, including,
without limitation, those pertaining to the matters of delinquency,
correction, cancellation, refund and redemption, are applicable to
such amenity fee tax. The Tax Administrator is authorized to adopt
and interpret such rules and regulations as may be necessary or convenient
to implement this Section; provided however, that such rules and regulations
and the interpretation of such rules and regulations shall not be
contrary to applicable law, including, without limitation, this Code,
or any state or federal statute or constitutional provision, including,
without limitation, Proposition 218 (Cal. Const., Arts. XIIIC and
XIIID).
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(Ord. 595 § 4, 2006)
