HomeMy WebLinkAboutSierra Club Settlement Agreement Final SignedSETTLEMENT AGREEMENT AND RELEASE
This SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into as
of _______ , 2024 ("Effective Date"), by and among the SIERRA CLUB and PS
CANYON DEVELOPMENT, LLC (collectively, along with their successors and assigns,
"Developer"), each hereinafter a "Party" and collectively "the Parties."
A. On or about April 30, 2024, the City of Palm Springs ("City") noticed the release
of a Draft Environmental Impact Report for the proposed Palm Springs Fulfillment Center
Project (the "Project"). The Project includes an application for a Major Development Permit for
development of a 739,360 square foot high cube warehouse facility, which will be located on 38
acres west of Indian Canyon Drive and north of 19th A venue in the City. Developer will have to
obtain approvals from the City ("Development Approvals") for development of the Project.
B. Sierra Club has notified Developer that it has environmental objections to the
proposed Project and has notified the Developer that it intends to submit written comments
objecting to the Draft Environmental Impact Report on various environmental grounds.
C. Sierra Club and Developer have now agreed to resolve and settle the Sierra Club's
objections on the terms and conditions specifically set forth in this Agreement, including
Appendix A attached hereto ("Appendix A").
NOW THEREFORE, in consideration of the forgoing and for good and valuable
consideration, the Parties hereby agree as follows:
1.0 Developer's Obligations.
1.1 Developer's obligations under this Agreement are set forth in full on
Appendix A, the terms of which are incorporated herein by this reference. Appendix A must be
initialed and dated where indicated by Sierra Club and Developer in order to be effective.
Developer shall provide Sierra Club with written notice to Sierra Club's counsel twenty (20)
days prior to the setting of any public hearings concerning the City's consideration of
development applications for the Project.
2.0 Sierra Club's Obligations.
2.1 Sierra Club agrees not to file any litigation challenging the Development
Approvals, any current or future approvals necessary to construct the Project, including building
or other site development permits, or to implement this Agreement, provided the Project is
consistent with the terms set forth in Appendix A. This Agreement is made by Sierra Club on
behalf of its officers, directors, employees, principals, agents, servants, pai1ners, representatives,
predecessors, successors, parents, affiliates, affiliated parties, shareholders, executors,
October 4, 2024
administrators, trustees, attorneys, insurers, and assigns. Sierra Club agrees not to authorize or
fund litigation by any member including members in their individual capacity(ies) challenging
the Development Approvals, and/or Project's construction provided that the Project is consistent
with the terms of this Agreement. Should a member file a lawsuit in the name of the Sierra Club
challenging the Development Approvals, the Project's construction including any building or site
development permits, or implementation of this Agreement, Developer shall provide notice of
said action to Sierra Club through counsel, and Sierra Club shall issue a letter repudiating the
action.
3.0 Release.
3 .1 By Sierra Club: With respect to the Project, and except for the rights,
duties, and obligations set forth in this Agreement, Sierra Club for itself and for any of its
officers, directors, employees, principals, agents, servants, partners, representatives,
predecessors, successors, parents, affiliates, affiliated parties, shareholders, executors,
administrators, trustees, heirs, attorneys, insurers, and assigns agree to forever release all claims
they have at the time this Agreement is executed against Developer and the City and their
respective related and/or affiliated entities, respective past and present officers, directors,
employees, agents, partners, members, managers, representatives, predecessors, successors
(including, without limitation, any successors in interest to the Prope1iy and/or Project), parents,
subsidiaries, shareholders, executors, administrators, trustees, heirs, attorneys, insurers, and
assigns, from any and all claims, damages, actions, judgments, obligations, attorneys' fees,
indemnities, duties, demands, controversies, and liabilities of every nature at law or in equity,
liquidated or unliquidated, arising out of the Development Approvals, including the Project's
construction, provided that the Project is implemented consistent with the terms of this
Agreement.
3.2 By Developer: With respect to the Project, and except for the rights,
duties, and obligations set forth in this Agreement, Developer, for itself and its related and/or
affiliated entities' officers, directors, employees, agents, partners, members, managers,
representatives, predecessors, successors, parents, subsidiaries, affiliates, affiliated parties,
shareholders, executors, administrators, trustees, heirs, attorneys, insurers, and assigns, agrees to
forever release any and all claims it may have against the Sierra Club, as well as each of its past
and present officers, directors, employees, agents, partners, members, representatives,
predecessors, successors, parents, subsidiaries, affiliates, affiliated parties, subsidiaries,
shareholders, executors, administrators, trustees, heirs, attorneys, insurers, assigns and related
entities, from any and all claims, damages, actions, judgments, obligations, attorneys' fees,
indemnities, duties, demands, controversies, and liabilities of every nature at law or in equity,
liquidated or unliquidated, known or unknown, matured or unmatured, foreseeable or
unforeseeable, or has arising out of any circumstance, thing or event alleged, related, or
pertaining to the Project.
Wherefore, the Parties specifically waive their rights under California Civil Code
section 1542. Section 1542 provides as follows:
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"A general release does not extend to claims which the creditor or
releasing party does not know or suspect to exist in his or her favor
at the time of executing the release, and that, if known by him or
her, would have materially affected his or her settlement with the
debtor or released party."
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Developer
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4.0 Remedies.
4.1 The Pmiies acknowledge and agree that specific performance and
injunction are the only appropriate remedies for any breach of this Agreement, and under no
circumstances shall monetary damages be allowed for any breach of this Agreement. In
addition, no legal action for specific performance or injunction shall be brought or maintained
until: (a) the non-breaching Party provides written notice to the breaching Party which explains
with particularity the nature of the claimed breach; and (b) within thirty (30) days after receipt of
said notice, the breaching Party fails to cure the claimed breach or, in the case of a claimed
breach which cannot be reasonably remedied within a thirty (30) day period, the breaching Party
fails to commence to cure the claimed breach within such thirty (30) day period, and thereafter
diligently complete the activities necessary to remedy the claimed breach.
4.2 Developer's releases of claims set forth in Paragraphs 3.2 above shall
be null and void upon any breach( es) or default( s) by Sierra Club of any of its uncured
obligations contained in Section 2.0 above, including future litigation challenging the Project,
subject to the terms of this Agreement.
4.3 Paragraphs 2.1 and 3.1 are contingent upon the Project being implemented
in accordance with all terms of this Agreement, including the obligations identified in Appendix
A. If the Project is not implemented in accordance with the terms of this Agreement,
Paragraphs 2.1 and 3 .1 are null and void.
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5.0 Miscellaneous Provisions.
5.1 Compromise of Disputed Claims. This Agreement is a compromise of
disputed claims and shall never at any time or for any purpose be considered an admission of any
liability or responsibility on the part of any Party; nor shall the furnishing of any consideration
for the execution of this Agreement constitute or be construed as an admission of any liability
whatsoever by either Party.
5.2 Integration. The undersigned, and each of them, acknowledge and
represent that no promise or inducement not expressed in this Agreement has been made in
connection with this Agreement. This Agreement contains the entire agreement and
understanding between the Parties as to the subject matter of this Agreement and is intended to
be and is a final integration thereof. There are no representations, warranties, agreements,
arrangements, undertakings, oral or written, between or among the Parties.
5.3 Waiver and Amendment. No provision of this Agreement, or breach of
any provision, can be waived except in writing. Waiver of any provision or breach shall not be
deemed to be a waiver of any other provision, or of any subsequent breach of the same or other
provision. This Agreement may be amended, modified or rescinded only in writing signed by all
Parties to this Agreement.
5.4 Time of the Essence. Time is expressly declared to be of the essence in
this Agreement, and of every provision in which time is an element, if any.
5.5 Captions. Paragraph titles and captions contained in this Agreement are
inserted as a matter of convenience and for reference, and are not a substantive part of this
Agreement.
5.6 Interpretation and Intent. This Agreement is the result of arms-length
negotiations by the Parties, each of whom had their own counsel. Accordingly, all Parties hereto
acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one party
or another, or the attorneys for one party or another. No provision of this Agreement shall be
interpreted against any Party because that Party, or their legal representative, may have drafted
that provision.
5.7 Additional Documents. The Parties each agree to sign any additional
documents which are reasonably necessary to carry out the purpose and intent of this Agreement.
5.8 Assignment. The Parties agree that this Agreement is freely assignable
and that this Agreement shall be binding upon and inure to the benefit of the Parties and their
heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors,
assigns, partners, partnerships, parent companies, subsidiaries, affiliated and related entities,
officers, directors, principals, agents, servants, employees, and representatives.
5.9 Developer As Applicant. The Parties understand and agree that although
Developer was the applicant of the Project, any of its affiliates, successors-in-interest, or
successors-by-assignment, or an entity unrelated to Developer may develop, build and/or operate
the Project. The obligations set forth in Appendix A will be carried out by whichever entity
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actually develops the Project. Developer shall have the right to assign its interest in this
Agreement, including, without limitation, the ability to assign its interest to a related entity, and
shall notify the Parties through counsel of such assignment, in writing. within thirty (30) days
after completing the assignment. With the exception of the payment of attorney's fees as
specified in Appendix A, the obligations of Appendix A shall be carried out only if the Project
is actually built. The obligations of Appendix A shall apply to any substantially similar version
of the Project that may be built.
5.10 Governing Law. This Agreement has been executed in the State of
California, and shall be interpreted and enforced under California law. Venue for any action
related to this Agreement shall be in Riverside County.
5.11 No Assignment. Each Party represents and warrants that it has not
assigned or transferred any claims released herein, and that it is the sole owner of that claim.
5.12 Signatures. This Agreement may be signed in counterparts. Signatures
transmitted by facsimile or email shall be deemed to be originals.
5 .13 Warranty of Authority. Each of the signatories hereto represents and
warrants that he or she is competent and authorized to enter into this Agreement on behalf of the
Party for whom he or she purports to sign.
5 .14 Representation by Counsel. The undersigned and each of them
acknowledge and represent that they are affecting this compromise and settlement and are
executing this Agreement after having received full legal advice as to their rights from an
attorney of their choice.
5.1 S Agreement Voluntarily. The undersigned and each of them acknowledge
and represent that they have read this Agreement in its entirety, understand all of its terms and
provisions, and sign this Agreement voluntarily and of their own free will, knowing that it is a
legally binding document and with the intent to be bound hereby.
5.16 No Reliance on Other Party. The undersigned and each of them
acknowledge and represent that they are effecting this compromise and settlement and are
executing this Agreement (i) after they and their respective legal counsel had the opportunity to
and did conduct an independent investigation of the relevant facts; and (ii) without relying on
representation made by the other Party or the other Party's attorney.
5.17 Severability. Even if a court holds one or more parts of this Agreement
ineffective, invalid, or void, all remaining provisions shall remain valid.
5 .18 Reservation of Rights. The other terms and provisions of this Agreement
notwithstanding, the Parties affirm that nothing in this Agreement in any way affects: (i) Sierra
Club's rights, claims, or defenses in any past, present, or future lawsuit or dispute against the
City related to any project other than the Project; or (ii) Sierra Club's rights, claims, or defenses
in any lawsuit or other dispute in which Sierra Club alleges a violation of CEQA by the City with
regard to any "activity" under CEQA other than the Project if implemented consistent with
Appendix A
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5.19 Notices. All notices given pursuant to this Agreement or law shall be
written. Notices shall be delivered with all delivery or postal charges prepaid. Notices may be
given personally; by facsimile; by United States first-class mail; by United States certified or
registered mail; or by other recognized overnight service.
Notices shall be deemed received on the date of personal delivery or facsimile
transmission; on the date shown on a signed return receipt or acknowledgment of delivery; or, if
delivery is refused or notice is sent by regular maiL seventy-two (72) hours after deposit. Until a
Party gives notice of a change, notices shall be sent to:
FOR SIERRA CLUB:
WITH A COPY TO:
FOR PS CANYON
DEVELOPMENT, LLC:
WITH A COPY TO:
Joan Taylor
Sierra Club
1850 Smoke Tree Lane
Palm Springs, CA 92264
palmcanyon@mac.com
Abigail Smith, Esq.
Law Office of Abigail Smith
2305 Historic Decatur Road, Suite 100
San Diego, CA 921 06
Attorney for Sierra Club
abby@socalceqa.com
David Snider
730 Arcady Road
Santa Barbara, CA 93108
david@thesnidercompany.com
John C. Condas, Esq.
Allen Matkins Leck Gamble
Mallory & Natsis LLP
2010 Main Street, Suite 800
Irvine. CA 92614
jcondas@allenmatkins.com
/Signature Pages Attached]
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IN WITNESS THEREOF, the undersigned have executed this Agreement as follows:
SIERRA CLUB
DEVELOPER
Dated:-.....;:;S...;;;.e.:;..pt=e..;..;.m=b--"-e..;...r =27.;...1.....;:;2~0-=2-'-4 __ _
Daw.d:S~ By:-------------
Authorized Representative
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APPENDIX A
Developer's Obligations
I. Renewable energy and energy efficiency terms
1. Within five years of the first issuance of any certificate of occupancy of the Project
building, Developer shall install a maximally-sized solar photovoltaic (PV) array on all
available roof areas of the Project building that are not encumbered by necessary
appurtenances. Developer shall notify Sierra Club in writing to Sierra Club's counsel
within thirty (30) days of, both: (a) issuance of the first certificate of occupancy of the
Project building, and (b) installation of the solar PV array consistent with this requirement.
2. Within five years of first issuance of certificate of occupancy of the Project building,
Developer shall install 2 hours of battery backup storage at the rated capacity of all onsite
solar photovoltaic arrays. Said onsite solar arrays and energy storage shall be maintained
fully operational for the life of the Project. Developer shall notify Sierra Club in writing to
Sierra Club's counsel within thirty (30) days of, both: (a) issuance of the first certificate of
occupancy of the Project building, and (b) installation of the backup battery installation
consistent with this requirement.
3. The Project building shall be designed and built to attain Leadership in Energy and
Environmental Design (LEED) Silver standards. Within thirty (30) days of Certificate of
Occupancy issuance for the Project building, Developer shall provide to Sierra Club's
counsel written verification this requirement has been met. Verification of LEED
equivalency shall be in the form of the USGBC LEED checklist prepared by cetiified
LEED professional, Parthasarathy at Branch Pattern.
4. Prior to the issuance of the first occupancy pennit, Developer shall install at the Project
facility a minimum of 38 Level 2 Electric Vehicle ("EV") charging stations with two
charging ports per unit. Developer shall notify Sierra Club in writing to Sierra Club's
counsel within thirty (30) days of, both: (a) issuance of the first certificate of occupancy of
the Project building, and (b) installation of the EV charging stations pursuant to this
requirement.
5. EV charging stations shall be operational; shall be located at prominent locations in parking
areas; and shall be maintained in proper working order, including making any necessary
replacements of units. Charging stations may be substituted, modified, or upgraded to
equivalent or superior charging units based on advancements in technology.
6. Developer affirms the Project building is not entitled for cold storage/refrigerated storage.
If the Project building is modified to allow cold storage uses in the future, Developer shall
install required infrastructure and electric plug-ins at all truck loading docks to allow for
plug-ins of trucks with Transportation Refrigeration Units (TRUs). All such trucks
operating TRUs shall be required to use plug-ins while at loading docks.
Sierra Club
Developer
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Date: September 27, 2024
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7. Developer shall notify Sierra Club in writing to Sierra Club's counsel if the Project is
permitted for cold/refrigerated storage at the time of any approval to allow
cold/refrigerated storage.
Sierra Club
Developer
II. Transportation terms
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1. Truck idling at the Project facility shall be limited to no more than three minutes (total).
The idling restriction shall include idling of any TRUs and Accessory Power Units
(APUs) at the Project facility.
2. At the time of Project construction, Developer shall install appropriate bilingual signage
stating that trucks engines shall be turned off after three minutes including the operation
of TRU s and APU s. Signage shall be posted in all areas serving trucks and shall be
visible from truck cabs.
Sierra Club
Developer
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Date: September 27, 2024
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III. Onsite equipment terms
1. Upon and following occupancy of the Project by any tenant, all on-site cargo equipment
such as forklifts, yard trucks, yard goats, yard hostlers, and pallet jacks, shall be powered
by electricity only. No diesel or natural gas on-site cargo equipment shall be allowed at
the Project site.
2. Except for the operation of emergency equipment, there shall be no diesel-powered
generators allowed on the Project site.
IV. Other terms
1. All terms specified in this Appendix A, Sections II and IIL shall be included in all tenant
leases for the life of the Project.
2. Developer agrees that Sierra Club shall have the right of inspection of the Project site to
ensure compliance with the requirements of this Agreement including, but not limited to,
installation of the PV solar array. Developer shall allow reasonable access to the Project
site upon written request by Sierra Club to Developer. Developer shall inform tenant(s) of
this obligation as necessary to ensure the right of inspection.
3. Prior to issuance of the first certificate of occupancy for the Project building, Developer
shall contribute forty-five thousand dollars ($45,000) to the Coachella Valley
Association of Governments ("CV AG") to be used as a contribution towards the
completion of a Coachella Valley Regional Truck Impact and Mitigation Study
conducted by the Coachella Valley Association of Governments ("CVAG"). Developer
shall notify Sierra Club's counsel and CVAG prior to issuance of the first certificate of
occupancy of the Project building, and evidence of the monetary contribution shall be
provided in writing to Sierra Club's counsel within two weeks of payment.
4. Developer shall pay Sien-a Club's attorney's fees and costs in the amount of $15,000
within 45 calendar days of the execution of this Agreement by all parties. Sien-a Club
shall provide Developer with an invoice within 30 days of the execution of this
Agreement by all parties. Payment shall be made and mailed by courier to the Law
Office of Abigail Smith, A Professional Corporation.
Sierra Club
Developer
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