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HomeMy WebLinkAbout3/21/2001 - STAFF REPORTS (11) DATE: March 21, 2001 TO: City Council FROM: Director of Planning and Building REVISION TO PLANNED DEVELOPMENT DISTRICT 231 - PROJECT CONSULTANT/ STAFFING PROCESSING AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND PALM SPRINGS LEISURE PROPERTIES,LLC WITH RESPECT TO A REVISION TO PLANNED DEVELOPMENT DISTRICT 231, ALSO KNOWN AS CODA, AND ASSOCIATED TENTATIVE TRACT MAP, FOR A RESORT GOLF DEVELOPMENT, LOCATED ON THE EAST SIDE OF GENE AUTRY TRAIL SOUTH OF VISTA CHINO. RECOMMENDATION That the City Council approve the attached Minute Order approving the Project Consultant/ Staffing processing agreement between the City of Palm Springs and Palm Springs Leisure Propertites, LLC with respect to a revision to Planned Development District 231, also known as CODA, and associated Tentative Tract Map, for a Resort Golf Development, located on the east side of Gene Autry Trail south of Vista Chino. SUMMARY The Project Consultant / Staffing and Processing Agreement establishes the performance expectations with respect to the processing of an application received from Palm Springs Leisure Properties, LLC for a revision to a Planned Development District and an associated Tentative Tract Map. The agreement recognizes that the City intends to hire a planning consultant to process the applications and prepare all associated reports. The agreement further recognizes that the applicant shall pay for all costs associated with the processing of the applications. The Project Consultant/Staffing and Processing Agreement essentially complements the Contract Services agreement on the same project. In the subject agreement, both the City and the applicant agree to extend their best efforts in processing the application. The agreement clearly states that entering into the agreement does not commit nor obligate the City into granting the requested entitlements. The City incurs no financial obligation by entering into the subject agreement. Director of anning and Building City Manager Attachments: 1. Minute Order. / 01#' Palm Springs Leisure Properties, LLC PROJECT CONSULTANT/STAFFING AND PROCESSING AGREEMENT The City of Palm Springs and Leisure Properties, LLC have entered into this Agreement, effective , 2001 ("Agreement"). This Agreement is made and entered into in respect to the following recitals and in consideration of the following covenants and conditions: 1.0 THE AGREEMENT 1.1 The City as Party. The City of Palm Springs ("the City") is a chartered municipal corporation of the State of California. The City's planning area consists of the incorporated area of the City, the existing sphere of influence and unincorporated areas with a significant planning relationship to the City. 1.2 Developer as Party. Palm Springs Leisure Properties, LLC (PSLP) ("Developer") is a Delaware Limited Liability Corporation. Developer represents that the signatory of this Agreement is authorized to execute this Agreement on behalf of this entity. 1.3 No Third Party Beneficiaries. There are no other parties to this Agreement, express or implied, direct or indirect. The City and Developer acknowledge that it is not their intent to create any third parry beneficiaries to this Agreement. 1.4 Purpose of Agreement. The purpose of this Agreement is to provide the Developer with assigned professional Consultants/Staff to work on its project based upon Developer's representation that such Consultants/Staff will be required for the term of this Agreement in order to process Developer's project. 2.0 PSLP PROPERTY 2.1 Developer is acquiring certain real property located in the City of Palm Springs, California consisting of approximately 363 acres, graphically shown on Exhibit A, which is attached and incorporated by this reference (the "Property"). 2.2 The City has adopted in its General Plan land use designations and policies that address the future development of the Property. In addition, the City has adopted a Planned Development District 231 (PDD), as well as Tentative Maps which together comprise the development project known as CODA Resort and Golf Community, historically known as the "Palm Springs Classic". 3.0 PROJECT ENTITLEMENTS 3.1 Project Entitlements. The revised entitlements, permits and approvals for the CODA Project that Developer shall submit to the City for processing (hereinafter referred to collectively as "Project Entitlements"), include, but are not limited, to the following: (a) Planned Development District 231 Amendment (b) Revised Tentative Map 1- (c) Final Map 3.2 Environmental Review. The Project Entitlements will require further environmental documentation pursuant to the requirements of the California Environmental Quality Act ("CEQA") (PUB. RES. CODE §§21000, et seq.); the CEQA Guidelines (14 CAL. CODE REGS. §§15000, et seq.); and the City's Environmental Review Procedures. The City will: (a) undertake the preparation, consideration and certification of all required environmental documents in the manner required by law; (b) follow all legally prescribed proceedings for the processing of such environmental documents, including public notices and hearings; and (c) exercise its independent judgment relative to such documents. For purposes of this Agreement, environmental documents are included within the definition of"Project Entitlements." 3.3 No Obligation to Approve. Developer understands and agrees that future decisions of the City Council on the Project Entitlements described in this Agreement are discretionary actions, and that the City may not enter into an agreement to obligate the City Council to exercise its discretion in a particular manner or for a particular result. This agreement does not, therefore, in any way create a contractual, legal or equitable obligation or commitment by the City or the City Council to approve the Project Entitlements described in this Agreement. 4.0 PROJECT SCHEDULE 4.1 Exhibit`B". The City will process the Project Entitlements as described in the "Project Schedule", attached as Exhibit `B" and will act with reasonable diligence to meet all of the time frames described on the Project Schedule. Notwithstanding the foregoing, the City and Developer acknowledge that the time be subject to change from time to time. City shall have no liability to Developer for the failure to process Developer's Project Entitlements, or for failure to process the same within the time frames estimated in the Project Schedule. Both parties agree to use their reasonable best efforts to process the Project Entitlements in a timely manner. -2- 5.0 CONSULTANTS/STAFFING 5.1 Retention and Assignment of Consultant/Staff 5.1.1 Developer's Representation. Developer represents and warrants that they will need the services of the City for the term of this Agreement. 5.1.2 Project Consultants/Staff. The City intends to hire and/or assign Consultants/Staff, including, but not limited to, planner(s), engineer(s) and environmental planner(s) for the purpose of processing the project Entitlements ("Project Consultants/Staff'). Project Staff consists of existing and newly hired Permanent staff, and Temporary Expert Professionals. Permanent Staff are full time City employees, while Temporary Expert Professionals are independent contractors working for the City. Developer understands that it has no right to select any of the Consultants/Staff who will process the Project Entitlements. The Consultants/Staffing Cost Estimate, as shown on Exhibit "C", describes the project Consultants/Staff anticipated to work on the Project Entitlements. 5.1.3 Hiring Responsibility. Notwithstanding any provision of this Agreement, the City is solely and exclusively responsible for the hiring and/or assigning of the Project Consultants/Staff. Developer shall not have any involvement in the City's final hiring or assigning decisions, or the City's employment relationship with the Project Consultants/Staff. The City shall retain full rights to supervise the work of those Consultants/Staff to ensure that they exercise full and complete independent from Developer in connection with work performed on the Project Entitlements. The City shall retain full rights to discipline and terminate, as the City deems appropriate. 5.1.4 Access to Project Consultants/Staff. The City shall endeavor to take all reasonable steps necessary to ensure that Developer has regular access to the Project Consultants/Staff during the processing of the Project Entitlements. To implement this provision, the Project Consultants/Staff may schedule regular meetings with Developer and others to facilitate the processing of the Project Entitlements. 6.0 COSTS AND PAYMENT 6.1 Deposit. Developer shall place a deposit with the City in the amount of One Hundred Sixteen Thousand Nine Hundred Eight-Five dollars ($116,985.00) ("Deposit") from which the City may withdraw, pursuant to the terms of this Agreement, the amount owed to the City by the Developer for processing the Project Entitlements. Developer shall maintain and continue to replenish said Deposit with the City during the term of this Agreement in the manner specified in paragraph 6.4, herein. Upon the termination of this Agreement, if any portion of the Deposit remains, the City shall return the Deposit balance to Developer without interest thereon. Developer agrees that the City may use the Deposit to pay the City any amounts due the City pursuant to the terms of this Agreement. 6.2 Payment for Project Consultants/Staff. Developer shall pay the City for the time incurred by the Project Consultants/Staff, at the billing rates set forth in that certain -3- Agreement between the City and Dudeck & Associates ("Consultant Agreement") for processing the Project Entitlements, including expenses and all of the City's direct and overhead costs related thereto. In addition, any staff overtime incurred on the project shall be reimbursed to City. 6.3 Deposit Withdrawal. Pursuant to the terms of the Consultant Agreement, the City shall determine the amount owed by the Developer for the time and costs incurred by the Project Consultants/Staff for work on the project Entitlements. Within fifteen (15) days after receiving a billing statement for amounts due, the City shall withdraw from the Deposit said amount due the City and shall send the Developer a copy of the billing statement. If applicable, a separate statement for staff overtime shall also be deducted. 6.4 Replenish Deposit. Replenish Deposit. Developer shall replenish the Deposit within 15 days of being notified by the City that the Deposit will be inadequate to cover the City's estimated costs. The additional amounts would be necessary if any staff overtime is incurred or if there are approved change orders to the Consultant Agreement. 6.5 Disputes. In the event the Developer has a dispute with the City over the billing, Developer shall notify the City in writing describing Developer's objections to such monthly billing statement(s). If the amount withdrawn from the Deposit for any given month is determined to be incorrect at the sole discretion of the City, the City shall deposit the amount owed the Developer into the Deposit within fifteen days of such determination. 6.6 Suspend Processing. The City shall have the right to suspend processing of the Project Entitlements by the Consultant, in the event that Developer fails to maintain the Deposit as specified in this Section 6.4. Further, Developer agrees that in the event of such failure City shall have the right to terminate this Agreement and the consideration of these Project Entitlements and require the Developer to submit new applications for the Project Entitlements which would be reviewed under the City's standard review process without the assistance of consultants or staff overtime. Developer additionally agrees that in the event of such termination, any and all rights to which it might be entitled, under the Permit Streamlining Act, California Government Code §§65920 et. seq are hereby waived, released and of no effect as to the Project Entitlements herein.. 7.0 TERM OF AGREEMENT, TERMINATION RIGHTS AND DEFAULT 7.1 Effective Date. This Agreement shall become effective on the Effective date identified above and, unless earlier terminated pursuant to the terms of this Agreement, shall continue in effect until December 6, 2001 or when the processing of the Project Entitlements have been completed, whichever occurs first. In the event the parties determine that a longer period is necessary to complete processing of the Project Entitlements, the term of the Agreement may be extended by the further written agreement of the parties. 7.2 City's Right to Terminate. Notwithstanding the term of this Agreement as provided in Section 7.1, the City shall have the unilateral right to terminate this Agreement for any reason upon thirty (30) days written notice to Developer. City shall provide written notice to Developer of said termination and shall immediately give notice to the Project Consultant to cease work pursuant to Section 7.3. 7.3 Cessation of Work. In the event that the processing of the Project Entitlements is suspended or stopped for any reason, such that work is not required by the Project Consultants/Staff("Cessation of Work"), Developer agrees that the City may terminate this Agreement and the Developer shall pay for the Project Consultants/Staff, for any work completed prior to notification to the Project Consultant to cease work, according to the terms of the Consultant Agreement. 7.3.1 Written Notification. Developer shall provide immediate written notification to the City if Cessation of Work on the Project Entitlements is about to occur. 7.3.2 No Notice. In the instance said written notification is not provided, Developer shall pay the Project Consultants/Staff costs commencing from the date the City has determined in good faith that a Cessation of Work has occurred. The City shall notify the Developer in writing of the City's determination and the reasons for such determination. 8.0 OTHER PROVISIONS 8.1 Written Modifications and Amendments This Agreement may not be modified or amended except by writing duly executed by both parties to this Agreement. 8.2 Notices 8.2.1 All notices, billing statements, letters or any other documents required or delivered in accordance with, or with respect to this Agreement, shall be made or contemporaneously confirmed in writing and shall be personally delivered or deposited in the United States mail, addressed as follows: To the City of Palm Springs: Doug Evans Director of Planning City of Palm Springs P. O. Box 2743 Palm Springs, CA 92263 Copt/to: David Aleshire City Attorney City of Palm Springs P. O. Box 2743 Palm Springs, CA 92263 To PSLP: William C. Tuchscher, II s- Palm Springs Leisure Properties, LLC Tuchscher Development Enterprises, Inc. 3130 Bonita Road, Suite 200 Chula Vista, CA 91910 If written notices under this Agreement are delivered by depositing them in the United States mail, they shall be deemed to have been received by the other party on the fifth (5th) working day following the day on which they were mailed. 8.3 No Waiver of Any Default No waiver of any default by any party to this Agreement shall be implied from any omission by any other party to take any action in respect of such default. No such Waiver shall be effective unless expressly evidenced by a writing duly executed by the party waiving the default. No waiver of any default shall be deemed to be a waiver of any other or subsequent default. 8.4 Attorneys' Fees In any action or proceeding arising under this Agreement, or to enforce the provisions of this Agreement, each of the parties shall bear its own attorneys' fees and costs. 8.5 Interpretation and Governing Law This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. 8.6 No Third Party Beneficiaries The only parties to this Agreement are the City and Developer. There are no third party beneficiaries, and this Agreement is not intended, and shall not be construed, to benefit or be enforceable by any other person whatsoever. 8.7 Hold Harmless Developer shall defend, indemnify and hold harmless the City, its elected and appointed officers and employees, from and against any claims, suits, actions or proceedings,judicial or administrative, for writs, orders, injunction or other relief, damages, liability, cost and expense (including without limitation attorneys' fees) rising out of the provisions of this Agreement and the City's actions in processing or issuing Developer's permits, or in exercising any discretion related thereto including, but not limited to, the giving of proper environmental review, the holding of public hearings, the extension of due process rights, except only for those claims, suits, actions or proceedings arising from the negligence of the City, its officers or employees. Developer's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Further, Developer, at its own expense, shall upon written request by the City, defend any such suit or action brought against the City, its officers, agents or employees. Developer's indemnification of City shall not be limited by any prior or subsequent declaration by Developer. At its discretion, the City may participate, at is own expense, in the defense of any such action, but such participation shall not relieve Developer of any obligation imposed by this Agreement. 8.8 Agreement Binding Upon Successors This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. 8.9 Exhibits All exhibits attached hereto and referred to herein are incorporated as a part of this Agreement. �- PROJECT CONSULTANTS/STAFFING AND PROCESSING AGREEMENT SIGNATURE PAGE: Date: THE CITY OF PALM SPRINGS David Ready, City Manager Date: PALM SPRINGS LEISURE PROPERTIES, LLC a Delaware limited Liability Corporation By: William C. Tuchscher, II Chief Executive Officer APPROVED AS TO FORM: David Aleshire City Attorney $_ EXHIBITS TO AGREEMENT Exhibit A: Property Location Map Exhibit B: Project Schedule 9- MINUTE ORDER NO. 6823 APPROVING A PROJECT CONSULTANT/ STAFFING PROCESSING AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND PALM SPRINGS LEISURE PROPERTIES, LLC WITH RESPECT TO A REVISION TO PLANNED DEVELOPMENT 231, ALSO KNOWN AS CODA, AND ASSOCIATED TENTATIVE TRACT MAP, FOR A RESORT GOLF DEVELOPMENT, LOCATED ON THE EAST SIDE OF GENE AUTRY TRAIL SOUTH OF VISTA CHINO. ------------------ I HEREBY CERTIFY that this Minute Order, approving a Project Consultant/Staff Processing Agreement between the City of Palm Springs and Palm Springs Leisure Properties, LLC with respect to a revision to Planned Development 231, also known as CODA, and associated tentative tract map, for a resort golf development, located on the east side of Gene Autry Trail south of Vista Chino, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 21 st day of March, 2001. PATRICIA A. SANDERS City Clerk