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HomeMy WebLinkAbout9/6/2017 - STAFF REPORTS - 4.A. ?ALM CITY COUNCIL STAFF REPORT 41 IF O I *'s DATE: September 6, 2017 UNFINISHED BUSINESS SUBJECT: REVIEW OF THE PROPOSED WORK PLAN FOR IMPLEMENTATION OF THE RECOMMENDATIONS OF THE AD HOC PDD COMMITTEE. FROM: David H. Ready, City Manager BY: Department of Planning Services SUMMARY This is a request for the City Council to provide direction to staff regarding the work plan to implement the recommendations of the Ad Hoc PDD Committee relative to the City's Planned Development District (PDD) regulations. The City Council reviewed the recommendations of the Ad Hoc PDD Committee at the meeting of July 20, 2017, and directed staff to return with a work plan to identify which recommendations could be implemented quickly, versus implementation items which would require greater staff time or resources. RECOMMENDATION: Discuss the proposed work plan and provide direction to staff. BACKGROUND: The Ad Hoc PDD Committee ("Committee") was formed through a settlement agreement ("Agreement") that arose from a lawsuit regarding the Dakota development (Case 5.1310/PD-365). A copy of the Agreement is included with this staff report as Attachment #3. The Agreement established a seven-member Committee to study the existing Planned Development District (PDD) process, and to make recommendations as to whether modifications should be made to the process. The Agreement requires that the recommendations of the Committee be considered in good faith by the Planning Commission, and states that the Planning Commission may forward any or all of the recommendations to the City Council. The Agreement established a Base Committee consisting of the following individuals: Jim Harlan, representing the plaintiff in the lawsuit; Marvin Roos, representing the builder and ITEM NO,—...�' City Council Staff Report September 6, 2017 -- Page 2 Work Plan—Ad Hoc PDD Committee Recommendations developer; and Kathy Weremiuk, representing the Planning Commission. The Agreement required the Base Committee to appoint up to four additional individuals to serve on the Committee, with the additional members having expertise in the following areas: (1) a local contractor or engineer; (2) a person with expertise in the field of affordable housing; (3) a local architect; and (4) a person with expertise in the field of planning in the local area. The Base Committee selected the following members to fill the remaining four positions: Lyn Calerdine, Tracy Conrad, Michael Johnston, and Scott Bigbie. The Committee met 15 times between July 2016 and March 2017 to discuss revisions to the PDD regulations and process. The Committee finalized the recommendations at their meeting of March 2, 2017, and requested that their recommendations be forwarded to the Planning Commission in accordance with the Agreement. The Planning Commission reviewed the recommendations over the course of two regular meetings and one study session, and took action on May 10, 2017 to forward the recommendations to the City Council with minor modifications and comments. ANALYSIS AND RECOMMENDATIONS: At the meeting of July 20, 2017, the City Council reviewed the recommendations of the Ad Hoc PDD Committee and generally supported the implementation of all of the recommendations of the Committee. Council directed staff to identify recommendations which could be implemented relatively quickly over the next several months, versus recommendations which would require greater staff time or were less critical for immediate implementation. Based on those recommendations, a work plan for implementation of the recommendations has been divided into "Immediate Tasks" and "Future Tasks." A discussion of each of the tasks is listed in the following section of this report. Immediate Tasks: Immediate Tasks are those that can be implemented by staff, generally without the assistance of outside consultants, and can be initiated within the next six months. Completion of the items listed as Immediate Tasks would result in the implementation of over two-thirds of the 67 recommendations of the Committee. The Immediate Tasks are listed as items A through D as follows: A. Task: PDD Ordinance Amendment Descnpfion: Amend PSZC Section 94.03.00 to incorporate revised PDD develop merit standards, public benefit re airements, findings, and procedures. Recommendations Implemented: Process: Start Date: #1-19, #21-26, #33-37, #56, #67 Zoning Text Amendment Fall 2017 02 City Council Staff Report September 6, 2017 -- Page 3 Work Plan—Ad Hoc PDD Committee Recommendations B. Task: Modify Procedures for Processing PDD Applications Description: Revise PDD application forms and administrative processes to align with new PDD regulations and review requirements. Recommendations Implemented: Process: Start Date: #27-32, #38 Administrative Fall 2017 C. Task: Small-Lot Development Regulations Description: Amend the Zoning Code to include small-lot<development-standards as an alternative to the PDD qpp#cation process.` Recommendations Implemented: Process: Start Date: #20, #52-54, #60 Zoning Text Amendment Fall 2017 D. Task: Mixed-Use Development Regulations Description: Amend the Zoning Code to include mixed-use development standards and regulations as an altemative to the PDD applicationprocess. Recommendations Implemented: Process: Start Date: #58, #60 Zoning Text Amendment Winter 2017 Future Tasks: Future Tasks are those implementation items that will either require significant funding and staff time (such as the update to the General Plan), or those items which are less critical to resolving the immediate issues of the PDD process. No start date has been proposed for these tasks; it is recommended that the work plan be reassessed once the Immediate Tasks have been completed. The Future Tasks are identified as items E through J as follows below. E. Task: General Plan Update Description: Initiate an update of the General Plan, and coordinate changes to the Zoning Code to align with the General Plan. Recommendations Implemented: Process: Start Date: #39-50, #57, #59, #61, #63, #64 General Plan Amendment, TBD Zoning Text Amendment F. Task: Golf Course Redevelopment Standards Description: Initiate an update of the General Plan, and coordinate changes to the Zoning Code to align with the General Plan. Recommendations Implemented: Process: Start Date: #51, #55 General Plan Amendment, TBD Zoning Text Amendment 03 City Council Staff Report September 6, 2017-- Page 4 Work Plan—Ad Hoc PDD Committee Recommendations G. Task: Entitlement Process Changes Description: Investigate modifications to the entitlement process to send applications to the Planning Commission prior to review:by the Architectural Advisory Committee. Recommendations Implemented: Process: Start Date: #37 Zoning Text Amendment TBD H. Task: Development Regulations for Institutional Uses Description: Amend the Zoning Code to include development standards for institutional uses as an alternative to the PDD application process. Recommendations Implemented: Process: Start Date: #62 Zoning Text Amendment TBD I. Task: Hillside Development Regulations Description: Revise the development standards for hillside areas to restrict mass grading and refine the site develo ment standards. Recommendations Implemented: Process: Start Date: #65 Zoning Text Amendment TBD J. Task: Solar Design Standards Description: Develop design standards to address shading and to support active and passive solar use. Recommendations Implemented: Process: Start Date: #66 Zoning Text Amendment TBD CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION: The recommendations of the Committee are not subject to the California Environmental Quality Act ("CEQA") under CEQA Guidelines (14 Cal. Code Regs.) section 15060(c)(2), 15060(c)(3), and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; and the activity is covered by the general rule that CEQA applies only to activities that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA. 04 City Council Staff Report September 6, 2017-- Page 5 Work Plan—Ad Hoc PDD Committee Recommendations FISCAL IMPACT: Should the City Council choose to begin implementation of the recommendations of the Committee, additional funding may be necessary to hire consultants to assist in the preparation of Zoning Code and General Plan amendments, and to prepare the associated environmental review documentation. i Minn Fagg, AICP Marcus L. Fuller, MPA, P.E., P.L.S. Director of Planning Services Assistant City Manager/City Engineer David H. Ready, Esq., City Manager Attachments: 1. Recommendations of the Ad Hoc PDD Committee 2. City Council Minutes Excerpt— 7/20/17 3. Settlement Agreement and General Release of Claims 05 Recommendations — Ad Hoc PDD Committee Suggested Changes to the . . . . . . Purpose of Planned Development Districts Dissenting Planning Commission Recommendation/Comments Opinion(s): 1. Allow development of multiple land parcels under a single development plan. Forward to the City Council. 2. Allow a mixture of land uses or zones in a single project. Forward to the City Council. 3. Allow flexibility in development standards, where contextually appropriate. Forward to the City Council. 4. Provide community benefits not required under the applicable zoning district or other land Forward to the City Council. development codes. 5. Promote innovation and excellence in site and urban design, resulting in projects of significantly Forward to the City Council. higher quality than would be achieved through conventional design practices and standards. 6. Promote design variety within a development. Forward to the City Council. 7. Promote open s ace preservation through municipal dedication or community association ownership. Forward to the City Council. 8. Promote more efficient traffic and pedestrian circulation. Forward to the City Council. 9. Promote preservation of natural or significant historic architectural features. Forward to the City Council. PDD Project Justification Dissenting Planning Commission Recommendation/Comments Opinion(s): 10. Specify why and how the project is better than by right-of-zone, and why the PDD process is Forward to the City Council. desirable for the project. 11. Specify exactly which exceptions are being requesting from the underlying zoning regulations and Forward to the City Council. why those departures are necessary. 12. A PDD application shall specify the objectives of the project and how they relate to the PDD Forward to the City Council. application. 13. Provide recreational facilities for residents of the development not otherwise required under the Forward to the City Council. zoning district or other land development codes. PDD General Requirements Dissenting Planning Commission Recommendation/Comments Opinion(s): 14. The project shall comply with the land use map and policies as specified by the General Plan. A Forward to the City Council. General Plan amendment shall be filed in conjunction with the PDD application where the proposed project is inconsistent with the existing land use designation of the General Plan. 15. The project shall comply with the height of the underlying zoning district, unless otherwise Forward to the City Council. authorized by a specific plan or the General Plan. 16. Open space shall meet or exceed the open space requirements of the underlying zoning district. Forward to the City Council. 20 July 2017 Page 1 06 Suggested Changes to the ' • • • • • • 17. The project shall respect the setback requirements of the underlying zoning of the perimeter of the Forward to the City Council. development site. 1 B. Exceptions to setback requirements or other development standards shall be mitigated by Forward to the City Council. increased open space. 19. Preserve the existing street grid, and require streets or driveways of a PDD project to align with Forward to the City Council; objection to the phrase streets at the perimeter of the project "unless contextually inappropriate." 20. Refine the definition of 'open space" and coordinate with definitions for "lot coverage" and Forward to the City Council. "common open space." Clearly identify where "common open space" is required, versus a percentage of open space that includes the landscaped areas of individual units. Public Benefit Dissenting Planning Commission Recommendation/Comments Opinion(s): 21. Amend the PDD ordinance to require the provision of public benefit; define what constitutes public Forward to the City Council. benefit, and preclude the project itself from being defined as the major public benefit. 22. A PDD application shall list the public benefits proposed with the project, including additional Forward to the City Council. public open space, affordable housing units, additional public amenities, additional off-site improvements, or similar benefits that are not required as standard development conditions. Items such as roadways, required traffic signals, payment of impact fees, landscape materials, or similar items that are required for all standard developments cannot be counted towards satisfying the public benefit requirement. 23. Modifications to development standards shall not be thought of as "waivers," but as minor Forward to the City Council; the recommendation should modifications to development standards. Any modification shall be in exchange for desired public be moved to the "PDD General Requirements" section. benefits specified by the zoning ordinance or General Plan policies. Other Standards/Requirements Dissenting Planning Commission Recommendation/Comments Opinion(s): 24. Allow density bonuses in accordance with State law through the PDD process for affordable Forward to the City Council. housing units and senior housing units. 25. Use the PDD process for environmentally sensitive parcels to allow for clustering of housing and Forward to the City Council, with the notation that this preservation of open space. recommendation is included to the extent that the issue is not covered by other ordinances. In addition, the Planning Commission has noted that this recommendation should be included under the "Purpose of Planned Developments" section. 20 July 2017 Page 2 N} Suggested Changes to the Processing of . . Applications Process Changes Dissenting Planning Commission Recommendation/Comments Opinion(s): 26. Require PDD projects to be reviewed by the Planning Commission in a study session prior to formal Forward to the City Council. submittal. 27. Planning staff shall identify compliance with the General Plan, development standards for the Forward to the City Council. underlying zoning district, and other land use requirements. 28. Staff reports shall detail specifically how proposed projects comply with the General Plan land Forward to the City Council. use designation, policies, and other provisions. 29. Staff reports shall detail specifically how proposed projects comply with the underlying zoning Forward to the City Council. district. 30. PDD applications that require excessive exceptions to development standards shall be Forward to the City Council. recommended for denial or shall be revised and resubmitted. 31. The City Council and Planning Commission need to acknowledge the role of staff as the regulatory Forward to the City Council. gatekeeper, and give staff the authority to enforce the General Plan and development standards. 32. PDD applications that do not conform to the General Plan land use designation and policies in Forward to the City Council. terms of use or density shall require the submittal of a General Plan amendment or a Change of Zone -application. 33. Revise the findings required for a PDD to include: a) general consistency with development Combine the recommendations regarding findings standards; b) conformance to the General Plan; c) public benefit; d) major architectural standards with (Recommendations #33 and #34), and forward to the enhanced design requirements; and e) specific development standards. City Council. 34. Prior to approving a PDD, the Planning Commission and the City Council shall make findings that Combine the recommendations regarding findings the PDD is consistent with the General Plan, that the use is consistent with the proposed underlying (Recommendations #33 and #34), and forward to the zoning, and that any modifications to development standards are offset by the public benefits of the City Council. project. 35. Coordinate the expiration of PDD entitlements with any mapping action associated with the Forward to the City Council. project so that both actions expire at the same time. 36. LC Do not forward to City Council; the recommendation should reflect the same timeframe as the recent Extension of Time ordinance (Case 5.1405 ZTA). 20 July 2017 Page 3 Suggested Changes to the Processing of . . Applications Changes to Meeting Format Dissenting Planning Commission Recommendation/Comments Opinion(s): 37. Modify the entitlement process to send applications to the Planning Commission first for land use Forward to the City Council, with the comma. ,t approval, and then to the Architectural Advisory Committee for architectural review. Planning Commission should review development standards and conceptual architectural design first, and then forward to the AAC for architectural review. The application would then be returned to the Planning Commission for final architectural review. 38. Keep the public comment period open until after a motion by the Planning Commission; allow a 1- LC Forward to the City Council, with a comment that the minute public comment period after the motion is made, with comments limited solely to the motion as additional public comment period shall be limited to made. comments on the motion, and cannot include additional comments on CEQA issues. Suggested Changes to the General Plan General Plan Changes Dissenting Planning Commission Recommendation/Comments Opinion(s): 39. Identify areas suitable for small-lot development. Forward to the City Council. 40. Study the addition of multifamily housing in areas zoned for shopping centers as a means to Forward to the City Council. encourage affordable housing, and study incentives for density/height and reduced parking for affordable or senior-assisted living facilities within or adjacent to commercial areas. Al. Schedule an update to the General Plan. Forward to the City Council. 42. Bring the zoning code into conformance and alignment with the General Plan. Clarify that Forward to the City Council. consistency with the General Plan (while not required for Charter Cities) is to be encouraged for adopted General Plan policies. 43. Review all sections of the General Plan that mention the PDD process and determine if a zoning Forward to the City Council. ordinance update to a CUP or other permit can handle the issue. 44. Language in the General Plan that mandates the use of the PDD process as the entitlement Forward to the City Council. application for certain land uses (such as Mixed Use) should be modified to allow the PDD for new and emerging concepts, but also mandate that the zoning ordinance be updated to cover these new development concepts as quickly as possible. 45. Gates around developments should be precluded where it interrupts the grid pattern. 6eting-ef LC, KW Forward to the City Council, with the elimination of the second sentence. The presumption should be against gates, unless there is a compelling argument to provide gates. 20 July 2017 Page 4 09 Suggested Changes to the General Plan General Plan Changes Dissenting Planning Commission Recommendation/Comments Opinion(s): 46. Study the lower threshold of the higher density residential General Plan categories. Forward to the City Council. 47. Carefully define "mixed-use and multi-use," and specify if it must include commercial and Forward to the City Council. residential uses on the development site. Establish a residential bonus for true mixed-use development. 48. Determine which development standards in zoning cannot be modified with a PDD application, Forward to the City Council. and move such standards to the General Plan. 49. Prepare a zoning/General Plan consistency map that could point to rezoning of inconsistent Forward to the City Council. properties. 50. Establish where bonuses may be appropriate for affordable housing, provision of public parking, Forward to the City Council. provision of additional open space, etc. 51. Establish goals and policies for the reuse or redevelopment of existing golf course facilities. Forward to the City Council. Suggested Changes to the Zoning Ordinance Zoning Code Changes Dissenting Planning Commission Recommendation/Comments Opinion(s): 52. Establish standards for small-lot development in place of utilizing the PDD process. Consider Forward to the City Council. small-lot development in the R-2 and R-3 zones as may be appropriate, based on density. 53. For small-lot development, require an average of 5,000 SF lot area or provide common open Forward to the City Council; clarify that the intent is to space. maintain an effective lot size of 5,000 square feet and provide common open space. 54. In the RGA-6/8 and R-2 zones, change the default single-family standards from R-1 -C to the Forward to the City Council. proposed small-lot standards. 55. Establish development standards for the reuse of existing golf courses facilities that incorporate Forward to the City Council. best practices from other jurisdictions. 56. Refine the definition of "open space" and coordinate with definitions for "lot coverage" and Forward to the City Council. "common open space." Clearly identify where "common open space" is required, versus a percentage of open space that includes the landscaped areas of individual units. 57. Establish a maximum height limit by zoning district; consider the elimination or modification of the Forward to the City Council. High-Rise Ordinance after review of permitted heights in all zoning districts. If the High-Rise Ordinance is retained, consider different standards for different areas of the city, based on context. 58. Modify the zoning code to allow mixed-use development by right, and establish development Forward to the City Council. standards for mixed-use projects. 20 July 2017 Page 5 to Suggested Changes to the Zoning Ordinance Zoning Code Changes Dissenting Planning Commission Recommendation/Comments O inion(s): 59. Rezone land not currently zoned for residential use (such as unbuilt or underutilized commercial Forward to the City Council. land) to include cluster or multifamily uses to make up for increasing small-lot development. 60. Create new zones to accommodate the types of development actually being built (example: Forward to the City Council, with the comment that the small-lot residential zone). zoning code should be amended to accommodate new development types, instead of relying on the PDD process. 61. Remove language in the zoning code that specifically allows the City Council to approve Forward to the City Council, with the direction to first modifications of development standards. identify the citations in the zoning code which grant the City Council authority to waive development standards. 62. Add appropriate development standards in the zoning code for institutional uses, religious uses, Forward to the City Council. properties split by zoning, and mixed-use development, so that these uses can be built by right rather than relying on the PDD process. 63. Review all sections of the General Plan that mention the PDD process and determine if a zoning Forward to the City Council. ordinance update to a CUP or other permit can handle the issue. 64. Consider more/other ways to create flexibility in standards (such as the CUP process) to achieve Forward to the City Council. better design, etc. 65. Consider standards to address grading of hillside parcels or parcels with signifieeint slopes. Forward to the City Council, with the comment to remove the term "significant" and to recommend that grading standards be adopted for hillside development. 66. Develop standards to address shading and mitigation of solar impacts. Forward to the City Council. 67. Develop increased design standards/requirements for PDD projects. Forward to the City Council; the recommendation should be added under the "PDD General Requirements" section. Legend: Text in red font reflects the recommendations of the Planning Commission. Dissenting Opinion: SB — Scott Bigbie LC = Lyn Calerdine TC = Tracy Conrad JH = James Harlan MJ = Michael Johnston MR = Marvin Roos KW = Kathy Weremiuk 20 July 2017 Page 6 CITY COUNCIL CITY OF PALM SPRINGS, CALIFORNIA Palm Springs Convention Center Primrose B 277 N. Avenida Caballeros, Palm Springs, CA 92262 www.palmspringsca.gov DOWNTOWN PARK JOINT MEETING WITH THE PLANNING COMMISSION ADJOURNED REGULAR MEETING ADJOURNED REGULAR MEETING EXCERPTS OF MINUTES CALL TO ORDER: Mayor Moon called the meeting to order at 6:12 p.m. PLEDGE OF ALLEGIANCE: Mayor Moon led the Pledge of Allegiance. ROLL CALL: PRESENT: Councilmember Kors, Councilmember Mills, Councilmember Roberts, Mayor Pro Tern Foat, and Mayor Moon ABSENT: None. ALSO PRESENT: City Manager Ready, Assistant City Manager Fuller, City Attorney Kotkin, and Interim City Clerk Hart ACCEPTANCE OF THE AGENDA: ACTION: Approve the agenda as presented. Motion by Councilmember Roberts, seconded by Councilmember Kors, and unanimously (5-0-0) carried on a roll call vote. At 7:24 p.m., Mayor Moon called for a recess. At 7:45 p.m., Mayor Moon reconvened the meeting with the Planning Commission. JOINT MEETING WITH THE PLANNING COMMISSION ROLL CALL (Planning Commission): The following members of the Planning Commission were present: Commissioners Donenfeld, Hirschbein, Lowe, and Middleton, Vice Chair Calerdine, and Chair Weremiuk. Commissioner Hudson was absent. REVIEW OF THE RECOMMENDATIONS OF THE AD HOC PLANNED DEVELOPMENT DISTRICT (PDD) SUBCOMMITTEE REGARDING MODIFICATIONS TO THE PDD PROCESS: 1. Staff Report. 12 City Council July 20,2017 Page 2 Director of Planning Services Fagg presented the staff report. He stated there were 67 recommendations. He explained the process for making changes to the Zoning Code and General Plan. 2. Public Comments: Robert Stone, Palm Springs, suggested implementing the Commission's recommendations, considering Ms. Deertrack's longitudinal study, and working to stop lawsuits over the projects. Frank Tysen, Palm Springs, indicated opposition to PDDs and suggested adherence to the General Plan and Zoning Code. He expressed concern with pending PDD projects. Judy Deertrack, Palm Springs, commended the subcommittee and People for Proper Planning. She suggested the Council consider if it was willing to plan without a General Plan and Zoning Code. Marvin Roos, Palm Springs, discussed his experience in processing PDDs. 3. Discuss the recommendations of the Ad Hoc PDD Committed. The Planning Commissioners commented on the following: • Summarized the Planning Commission's consideration and recommendations. • Discussed experience with PDDs and suggested reforming the Code, paying more attention to the General Plan and modify the plan to obtain a better mix of projects. • Discussed the community development process and issue with public benefits. • Suggested a standardized approach to provide a percentage of affordable housing or fee charge against the value of the construction permit that would be used to support non-profit organizations building affordable housing in Palm Springs. • The issue of density versus open space and suggested open space be visible to the public not just the development. • PDDs involving small lots and the need for standards so as not to require a PDD. • Suggested discussion and a position paper on appropriate public benefit. 13 City Council July 20,2017 Page 3 • Item 23, one of the most important and discussed the need to not treat standards as waivers, rather modifications. The Mayor and City Council commented on the following: • PDDs were the result of the need to update the Zoning Ordinance, stated a PDD was good tool but it should not be overused. • PDDs were not bad but were improperly used. Stated society, the market and economy drove development. Recommended staff determine items that could be instituted immediately with a second list of standards and recommendations on how to complete the standards. • The ideology of public benefit. • Stated it was necessary to gain affordable housing when losing density. • The Zoning Ordinance was 50 years old and the General Plan was 10 years old. • Updating the General Plan and Zoning Code concurrently and suggested obtaining estimates to include in next year's budget, next year's budget was too late and recommended it could be done as a priority by taking half from fund balance, half from Measure J. By conscensus of the City Council staff was directed to return with a work plan to identify which recommendations could be implemented quickly, versus implementation items which would require greater staff time or resources. COUNCILMEMBER COMMENTS, REQUESTS, AND REPORTS: NONE. ADJOURNMENT: At 9:16 p.m. the City Council adjourned to the adjourned regular meeting Wednesday, July 26, 2017, at 6:00 p.m., preceded by Closed Session at the Palm Springs Convention Center, Primrose B, 277 N. Avenida Caballeros, Palm Springs. 14. SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS This SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS ("Agreement") is entered into as of this _ day of July, 2014 (the "Effective Date"), by and between the City of Palm Springs, a California municipal corporation, and the Palm Springs City Council (collectively, "Palm Springs"), Wessman Holdings, LLC, a California limited liability company ("Developer"), Dakota PS, LLC, a California limited liability company ("Builder") and People for Proper Planning, a California ad hoc non- profit membership organization ("People") with respect to the facts set forth in the Recitals below. Palm Springs, Developer and People shall hereinafter be referred to, collectively, as the "Parties" and, each, a "Party." RECITALS A. On February 19, 2014, Palm Springs approved a resolution approving a Mitigated Negative Declaration for a Planned Development District ("PDD") allowing 39 two-story detached single family homes and approving a Tentative Tract Map to subdivide 6.37 acres into 30 residential lots located at the base of the San Jacinto Mountains, fronting Belardo Road in the City of Palm Springs (the "Dakota Project" or the "Project"). On March 5, 2014, Palm Springs adopted Ordinance No. 1846, approving the PDD. B. On or about March 21, 2014, People filed a Petition for Preemptory Writ of Mandate and Complaint for Declaratory and Injunctive Relief ("Petition") against Palm Springs in the Riverside County Superior Court, Palm Springs Branch, entitled People for Proper Planning v. City of Palm Springs, et at., Case No. PSC1401656 ("Action"). Developer was named in the Action as a Real-Party-In-Interest. People's Petition alleges that Palm Springs, as lead agency with respect to approval of the Dakota Project, violated the California Environmental Quality Act (Public Resources Code §§21000 et seq. - "CEQA") when it issued certain Approvals for the Project. The Petition further alleges that Palm Springs violated its Municipal Zoning Code and further violated the City General Plan in approving the Project. Palm Springs and Developer deny all of these claims, and contest People's allegations in the Petition. C. The Parties, in their shared interest, to avoid any further litigation between them, and to settle and resolve, fairly, fully and finally, all matters in dispute between them, wish to compromise and settle the Action and the disputes between them regarding the Project (and certain proposed modifications thereto) on the terms and conditions set forth herein. Accordingly, this Agreement is a compromise of disputed claims, and the execution of this Agreement shall not be considered or treated at any time or for any purpose as an admission that the other side's positions had merit, or as an admission of liability, or wrongful conduct, by any of the Parties to this Agreement. No past or present wrongdoing on the part of any of the Parties shall be implied from the negotiation or the consummation of this Agreement. 15 -1- AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties to this Agreement covenant and agree as follows: 1. Ad Hoc PDD Committee. A seven-member ad hoc committee ("Committee") shall be formed to study the existing PDD process, and to make recommendations to both the Planning Commission as to whether modifications should be made to the PDD process, and if so, what type of modifications. Margo Wheeler, the City's Director of Planning Services, will serve as staff to the Committee. If Ms. Wheeler no longer works for the City, the City Manager shall appoint an alternative staff member to serve as the staff to the Committee. The Committee membership and formation shall be as follows:. The City, Builder/Developer, and People hereby form a three-person base committee ("Base Committee"). The City's Mayor Pro Tem shall appoint a member of Palm Springs Planning Commissioner as the City's representative on the Base Committee. Builder and Developer jointly appoint Rich Meaney as their representative on the Base Committee. People hereby appoint Jim Harlan as People's representative on the Base Committee. The Parties may replace their representatives on the Base Committee as necessary. The Base Committee shall be responsible for selecting up to four additional Committee members from the following categories: (1) a local contractor or engineer; (2) a person with expertise in the field of affordable housing; (3) a local architect; and (4) a person with expertise in the Feld of planning in the local area. The Base Committee will work cooperatively to fill positions (1) through (4) with persons who will bring local knowledge, expertise, and differing viewpoints to the Committee. Except as provided in the next sentence, the decisions shall be made by a majority of the Base Committee members. The Base Committee may by unanimous decision select members who do not fit within the criteria specified above. The persons selected shall have demonstrated the ability to work collaboratively. If the Base Committee is unable to fill one or more of the four positions, the Base Committee and any additional members selected by the Base Committee shall serve as the Committee. The Committee shall have its kickoff meeting within 45 days of the Effective Date. The Committee shall hold no fewer than three meetings. After receiving the information it deems appropriate, the Committee shall formulate its recommendations regarding the PDD process. The Committee shall complete the formulation of its recommendations within six month if the Effective Date unless the Committee votes to grant itself a reasonable extension of time to complete the process. The Committee's recommendations shall be considered in good faith by the Planning Commission at a duly noticed regular or special meeting. The recommendations shall not be binding. The recommendations of all members of the Committee will be presented, even if the recommendation is not adopted as the majority position of the members. The Planning Commission will consider whether or not to make any or all of the recommendations to the City Council. 2. Enhanced Notice of PDD Applications/Hearings Pending Completion of the Ad Hoc PDD Committee. Between the Effective Date and the date that the Ad Hoc -2- 16 PDD Committee completes its task and delivers its recommendations to the City Council, the City will provide enhanced public notice relating to PDD applications and hearings as follows. (a). Complete Applications. Counsel for People will prepare a listing of e-mail addresses of persons who wish to be notified of the filing of PDD applications. The list may be updated as desired by People. Once such applications are deemed complete, the City will provide a notice to the persons on the list that includes the name of the applicant, the location and type of project, a brief description of the project, and a description of any deviations in property development standards from the Palm Springs Municipal Code requested by the Applicant. Application documentations will be available for inspection at City Hall during normal business hours. (b). Hearing Notices. On all public hearing notices related to projects involving a PDD application, the notice shall include a description of any deviations in property development standards from the Palm Springs Municipal Code requested by the Applicant. 3. Compromise of Claims and Dismissal of Action. The Parties hereby agree to compromise and settle People's claims arising from or related to the facts alleged in the Petition pursuant to the terms and conditions set forth herein, including the general release set forth below in Paragraph 5. Concurrently with the mutual execution of this Agreement, People shall execute and transmit to counsel for Palm Springs and Developer a fully executed Request for Dismissal of the Petition, with prejudice, in a form suitable for filing with the Court, which such Request for Dismissal shall be filed with the Court by counsel for Palm Springs or Developer. Except as otherwise agreed to by the Parties in writing, each Party shall bear its own attorneys' fees and costs incurred in the Petition proceeding. 4. No Admission of Liability. The Parties enter this Agreement and release for the purpose of terminating the dispute between them. By entering into and carrying out this Agreement, no Party to this Agreement admits any liability to any other Party on any theory for any claim or cause of action. This Agreement shall not be used or construed as an admission of liability by any Party hereto for any purpose. 5. General Releases. (a) This release is intended as a full and complete release by People in relation to the Petition, the Action and the Project. No part of this release shall release any rights or obligations of the Parties created by this Agreement. People, for itself, and on behalf of its members, associates, predecessors, successors, assigns, parents, subsidiaries, alter egos and affiliates (collectively, the "Releasing Parties"), fully release and discharge Palm Springs, the Builder, the Developer, the Developer's affiliated entities (including, without limitation, Wessman Holdings, LLC), and its respective present and former officers, directors, employees, partners, attorneys, independent contractors, agents, insurers, accountants, heirs, and successors and assigns 17 -3- (collectively, the "Released Parties"), from all rights, claims, demands, actions or causes of action of every nature whatsoever which any of the Releasing Parties now has or may have against any of the Released Parties arising from or related to the above recited facts, the Petition, the Action and/or the Project (collectively, the "Released Claims"), except those rights and obligations arising out of this Agreement. People, on behalf of itself and each of the Releasing Parties, covenants not to threaten, bring, commence, initiate, institute, file, join, maintain, prosecute, support, or threaten any action(s) based in whole or part upon any of the Released Claims, except as necessary to enforce this Agreement and the obligations set forth herein. People understands and agrees that this Agreement may be pled as a full and complete defense and bar to, and may be used as the basis to dismiss with prejudice or enjoin, any action(s) based in whole or in part upon a Released Claim. (b) This release is intended as a full and complete release and discharge of any and all Released Claims that the Releasing Parties may have arising from or related to the Project or proceedings on the Petition. In making this release, People, on behalf of itself and each of the Releasing Parties, intends to release the Released Parties from any liability of any nature whatsoever for any claim of damages or injury or for equitable or declaratory relief of any kind, whether the claim, or any facts on which such claim might be based, is known or unknown to the party possessing the claim. People has read and has otherwise been informed of the meaning of Section 1542 of the California Civil Code, and has consulted with its counsel, and understands the provisions of Section 1542_ People, .on behalf of itself and each of the:Releasing Parties, expressly waive .all rights under Section,.1542 of the Civil Code of the State of California and any successor statute, which the Parties understand provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. People's Initials: (c) People, on behalf of itself aR'd each of the Releasing Parties, acknowledges that it may hereafter discover facts different from or in addition to those which they now believe to be true with respect to the Released Claims. People, on behalf of itself and each of the Releasing Parties, agrees that the foregoing releases shall be and remain effective in all respects notwithstanding such different or additional facts or any discovery thereof. (d) No Released Party nor any related entities have made any statement,or representation to any of the Releasing Parties regarding any fact, relied upon in entering ;into this.Agreement, and People, on behalf of,itself and each of the Releasing Parties, expressly states 'it does not rely Upon any statement, representation or, ,promise of any Released Party or related entities in executing this Agreement, or in -4- 18 making the settlement provided for herein, except as is expressly stated in this Agreement. (e) Each Party to this Agreement has made such investigation of the facts pertaining to this settlement and this Agreement, and of all other matters pertaining thereto, as it deems necessary. In entering into this Agreement, each Party assumes the risk of any misrepresentation, concealment or mistake. If any Party should subsequently discover that any fact relied upon by the Party in entering into this Agreement was untrue, or that any fact was concealed from that Party, or that the Party's understanding of the facts or of the law was incorrect, such Party shall not be entitled to any relief in connection therewith, including without limitation upon the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be, and is, final and binding among the Parties. (f) If it is within the contemplation of the Parties to this Agreement that each of them may have claims for relief or causes of action for malicious prosecution or abuse of process or other claims in connection with the Petition proceeding described above, and matters undertaken in connection therewith, it is the intention of the Parties to this Agreement to fully, finally and forever release any and all such claims. 6. Representations, Warranties and Covenants. Each Party to this Agreement (each, the "Representing Party") hereby represents and warrants to the other Parties as follows: (a) The Representing Party has the right, power, legal capacity and authority to enter into and perform its obligations under this Agreement, and no approvals or consents of any person or entity other than the Representing Party is necessary in connection with it. The execution and delivery of this Agreement and the documents related hereto by the Representing Party have been duly authorized by it, and this Agreement and the documents related hereto, when executed and delivered, shall constitute a legal, valid and binding obligation of the Representing Party enforceable against it in accordance with their terms. (b) Each person executing this Agreement on behalf of an entity, other than an individual executing this Agreement on his or her own behalf, represents that he or she is authorized to execute this Agreement on behalf of said entity. (c) The Representing Party has not assigned or transferred to any third party any of the rights, claims, causes of action or items to be released or transferred which it is obligated to transfer or to release as part of this Agreement. If a Representing Party breaches the foregoing representation and warranty, such Representing Party shall defend, indemnify and hold harmless the non-breaching Parties, of, from and against all liabilities, claims, demands, damages, costs, expenses, and attorneys' fees incurred by such non-breaching Parties as a result of,any person or entity asserting any such assignment or transfer in violation of this paragraph's 5- 19 representation and warranty. It is the intention of the Parties, and each of them, that this indemnity does not require payment as a condition precedent to recovery. 7. Entire Agreement. This Agreement contains the entire agreement of the Parties, and supersedes any prior written or oral agreements between them concerning the subject matter of this Agreement. This Agreement may only be waived, modified or amended by the written agreement of all Parties to this Agreement. 8. Partial Invalidity. In the event that any term, covenant, condition or provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 9. No Waiver. The waiver by one Party of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered as a waiver by such Party of any other (or the enforcement for subsequent breaches or failures of the same) covenant, condition or promise. The delay in pursuing any remedy or in insisting upon full performance for any breach or failure of any covenant, condition or promise shall not prevent a Party from later pursuing remedies or insisting upon full performance for the same or similar breaches or failures. 10. Headings. The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience and reference only and are not to be taken as part of this Agreement or to control or affect the meaning, construction or effect of the same. 11. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California. 12. Successors In Interest. Subject to any restrictions against assignment contained herein, and to any legal limitations on the power of the signatories to bind non-signatories to this Agreement, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, agents and related entities of each of the Parties hereto. 13. Time Is Of The Essence. Time is of the essence in the performance of all obligations under this Agreement. 14. Necessary Acts. Each Party to this Agreement agrees to perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement. 15. Advice of Counsel. Each Party hereto, by its due execution of this Agreement, represents to every other Party that it has reviewed each term of this Agreement with its counsel in the above-referenced litigation, and that hereafter no Party shall deny the validity of this Agreement on the ground that the Party did not have advice of counsel generally or advice of its counsel in the aforementioned litigation. Each Party has had the opportunity to receive independent legal advice with respect to s- 20 the advisability of making the compromise and settlement provided for herein, and with respect to the meaning of California Civil Code §1542. 16. Attorneys' Fees and Costs. Except as otherwise may be agreed to in a writing executed by the one or more of the Parties hereto, each Party shall bear its own attorneys' fees and costs in connection with the Action and the preparation and execution of the Agreement. 17. Construction. Each Party has cooperated in the drafting and preparation of this Agreement. In any construction to be made to this Agreement, or of any of its terms and provisions, the same shall not be construed against any Party. 18. Notices. Any notice or demand which by any provision of this Agreement is required or permitted to be given or served shall be deemed so given or served if sent by United States mail, certified or registered mail, postage prepaid, with return receipt requested. Such notices or demands shall be effective upon the earlier of (a) three (3) business days after mailing, or (b) actual receipt as evidenced by the return receipt, and shall be addressed as follows: To: People With a Copy To: Law Office of Babak Naficy 1504 Marsh Street San Luis Obispo, CA 93401 To: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 With a Copy To: Douglas C. Holland, Esq. Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 To: Wessman Holdings, LLC 555 S. Sunrise Way, Suite 200 Palm Springs, CA 92264 With a Copy To: Emily Hemphill, Esq. Post Office Box 1008 Rancho Mirage, CA 92270 21 -7- To: Rich Meaney Dakota Partners, LLC 700 E. Tahquitz Canyon Way, Suite A Palm Springs, CA 92262 With a Copy To: M. Katherine Jenson, Esq. Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Either Party may change its address for service of notices by giving written notice to the other Party of the new address. 19. No Third Parties Benefited. This Agreement is made for the sole benefit and protection of Palm Springs, the Developer (and its successors, if any) and People. No other person shall have any right of action or right to rely thereon, and the Parties hereto hereby agree that nothing contained in this Agreement shall be construed to vest in any other person or entity any interest in or claim upon the funds that may be advanced pursuant to this Agreement or any rights under this Agreement. 20. Execution. This Agreement may be executed in counterparts and by facsimile signature; provided, however, that any Party executing this Agreement by facsimile signature shall provide the original of his signature to every other Party within one (1) business day. When each Party has signed and delivered at least one such counterpart to each Party's counsel, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. One fully executed original is to be delivered to counsel for each Party hereto. [Remainder of Page Intentionally Leff Blank] 22 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. PEOPLE FOR PROPER PLANNING B By: Name Name: Title: An IrWidual and on Behalf of Title: An Individual and on Behalf of People for Proper Planning People for Proper Planning APPROVED AS TO FORM: By: Name: Babak Naficy Title: Attorney for Petitioners CITY OF PALM SPRINGS; PALM SPRINGS CITY COUNCIL By: Nam 7 Title: <-,e* ��.�rr.✓.s��c��2 ATTESTED: By. i '-L-- : City Clerk, City of Palm Springs APPROVED AS O FORM: By: Name: Do gas Holland Title: City Attorney, City of Palm Springs [Continued on Next Page] 23 -9- WESSMAN HOLDINGS, LLC By: Nam o Title GWY Its APPROVED AS TO FORM: By: Name: Emily Hemphill Title: Attorney for Real-Parties-In-Interest DAKOTA PS, LLC By.Name: Title: Title: APPROVED AS TO FORM: By. -l i�- Name: M. Katherine Jj4son Title: Attorney for Dakota PS, LLC [Signature Page to Settlement Agreement and Mutual General Release] 24 -10- WESSMAN HOLDINGS, LLC �f By: r-- Nam Title 'NIT- 1 APPROVED AS TO FORM: I Name: E i Hemphill Title: A or y for Real-Parties-In-Interest DAKOTA PS, LLC r By. l Name: og&Lo W044,40 Title: APPROVED AS TO FORM: gy . .t Name: M. Katherine J son Title: Attorney for Dakota PS, LLC [Signature Page to Settlement Agreement and Mutual General Release] -10- 25