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Home My WebLink About05652 - SETTLEMENT AGR WITH COMMITTEE FOR BETTER COMMUNITY PLANNING RE HARD ROCK HOTEL PROJECT COME= I i,(` ',^tlf�llli,"•i'«I' i^ , iF.tE"i�hIiIr,76f^',, .ra.,m�, lH,I _I-"r II°,I I7i.1,^•,"al,_;i"_li�,d117�1 i. 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Ida , •� fryy ; o �� _ _ �. f 9 444 pY DUPLICATE SETTLEMENT AGREEMENT AND GENERAL RELEASE or CLAIMS This SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS ("Aareement") is entered into as of this _ day of April, 2008 (the "Effective Date"), by and between the City of Palm Springs, a California municipal corporation, and the Palm Springs City Council (collectively, "Palm Springs"), 0&M Indian Canyon, LLC, a California limited liability company and O&M HR, LLC, an affiliated entity (collectively, "Developer'), and Committee for Better Community Planning, a California ad hoc non- profit membership organization, and its members, Frank Tysen and Roxann Floss (collectively, "Committee") with respect to the facts set forth in the Recitals below. Palm Springs, Developer and Committee shall hereinafter be referred to, collectively, as the "Parties" and, each, a "Party." RECITALS A. On October 3, 2007, Palm Springs approved Resolution Nos. 22047 and 22048, which collectively approved (1) an Initial Study/Mitigated Negative Declaration (the "MND"); (2) an amendment to the Section 14 Master Development Specific Plan; (3) Planned Development District 339; and (4) Tentative Tract Map 35600 (collectively, the "Approvals'). Pursuant to the Approvals, Palm Springs approved Developer's mixed-use project located at the northeast corner of Calle El Segundo and Tahquitz Canyon Way in Palm Springs, California (the "Hard Rock Hotel Project" or the "Project"). B. On or about November 2, 2007, Committee 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, Indio Branch, entitled Committee for Better Community Planning v. City of Palm Springs, et at., Case No. INC 072015 ("Action'). Developer was named in the Action as a Real-Party-In-Interest. Committee's Petition alleges that Palm Springs, as lead agency with respect to approval of the Hard Rock Hotel 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 Section 14 Master Development Specific Plan in approving the Project. Palm Springs and Developer deny all of these claims, and have vigorously contested Committee's allegations in the Petition and continue to do so. 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. -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. No Future Use of MND. Palm Springs shall not rely on the MND as the basis for granting CEQA clearance with respect to building height requirements for any projects other than the Hard Rock Hotel Project. 2. Donation. Developer shall donate Thirty-Five Thousand Dollars ($35,000) (the "Donation") to Riverside Land Conservancy ("Donee"), or to another non-profit entity agreed upon by the parties. The entirety of such Donation shall be used by the Donee solely for the purpose of conservation of open space in the Palm Springs area, and in no event shall it be used for any other purposes. The Donation shall be payable by Developer by check or wire transfer payable to Donee, to be delivered promptly following the expiration of any applicable 30-day challenge period relating to any Non- Material Modifications (as defined below), if applicable, provided there has been no challenge to such Non-Material Modifications by any Non-Contesting Party (as defined below). If Developer does not apply for any Non-Material Modifications within ninety (90) days of the Effective Date, the Donation shall be payable on the ninetieth (901h) day after the Effective Date. Upon request by Committee, Developer shall promptly provide proof of payment to Committee's Counsel. 3. Non-Opposition. Committee and its members (Frank Tysen and Roxann Ploss), on their respective behalf and on behalf of their members, associates, predecessors, successors, assigns, parents, subsidiaries, alter egos, affiliates, agents and heirs, as applicable (collectively, the "Non-Contesting Parties"), each hereby agree that such Non-Contesting Parties shall not, individually or collectively, by itself or through agents or their attorneys, at any time, (a) challenge, contest, oppose, litigate or initiate, file or participate in any litigation, appeal, protest or other form of legal or administrative challenge (a "Challenge"), directly or indirectly (or raise or encourage others to engage in the foregoing), the Hard Rock Hotel Project (as currently approved pursuant to the Approvals) or any Non-Material Modifications to the Hard Rock Hotel Project (including any federal, state, or local governmental permits, approvals, or determinations necessary for approval or implementation of the Non-Material Modifications or otherwise for entitlement, development, or construction of the Hard Rock Hotel Project), or (b) support, participate in, cooperate with, or in any other way advance any Challenge, including, without limitation, any appeal of any administrative decision, discretionary approval or determination of any official commission, legislative body or other agency of Palm Springs, relating to the foregoing. Any action taken by a Non-Contesting Party which violates or is inconsistent with non-opposition provisions set forth above shall be deemed a breach of this Agreement by Committee; provided, however, (1) any oral or written comments submitted to Palm Springs (including its City Council or the Palm Springs Planning Commission) in connection with any proposed modification, and (2) any Challenge by the Committee of any modifications to the Hard -2- Rock Hotel Project which do not constitute Non-Material Modifications, shall not be deemed a violation of the terms of this Agreement. For purposes of this Agreement, "Non-Material Modifications" shall mean any modifications to or deviations from those aspects of the Hard Rock Hotel Project which were previously approved by Palm Springs (pursuant to the Approvals) other than those (i) which result in effects on the environment or surrounding scenic views which are materially different from and materially and adversely exceed the effects (actual or alleged pursuant to the Petition) resulting from the Hard Rock Hotel Project previously approved by Palm Springs pursuant to the Approvals, and (ii) the approval of which are subject to a public right of appeal or challenge; provided, however, in no event shall any modifications or deviations to the Hard Rock Hotel Project which would result in the building exceeding 100 ft. or the rooftop appurtenances to the building exceeding 120 ft. be considered "Non-Material Modifications" for purposes of this Agreement. Without limiting the foregoing, the Parties hereby acknowledge and agree that "Non-Material Modifications" shall include (without limitation) the following (irrespective of whether the same fall within the scope of clauses (i) and (ii) above): (A)The modifications set forth on the Site Plan Comparison attached hereto as Schedule 1; provided, however, to avoid any ambiguity, the 5-story parking structure referenced in the attached Site Plan Comparison shall have 6 levels of parking (collectively, the "Agreed Non-Material Modifications"); (B)Upward or downward adjustment to the height of the parking structure (but not to exceed 72 feet in height); (C)Downward adjustment to the height of certain portions of the building; and (D)Changes in the nature of ownership (and resulting use) of all or any portion of the rooms and/or units within the Project (including without limitation, any increase or decrease in the number of rooms/units to be sold and owned as condominiums), irrespective of whether any of the Approvals or portions thereof where based (or calculated) in whole or in part upon a specific use and/or the assumption of a minimum or maximum number of condominium vs. hotel units (e.g., density, parking, etc.). The Non-Contesting Parties further agree that they will not Challenge the Disposition and Development Agreement to be entered into by the Developer and the Palm Springs and/or its Redevelopment Agency. 4. Compromise of Claims and Dismissal of Action. The Parties hereby agree to compromise and settle Committee'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 6. Concurrently with the mutual execution of this Agreement, Committee 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 and Developer. Except as otherwise agreed -3- to by the Parties in writing, each Party shall bear its own attorneys' fees and costs incurred in the Petition proceeding. 5. 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. 6. General Releases. (a) This release is intended as a full and complete release by the Committee 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. The Committee, for itself, and on behalf of its members (including Frank Tysen and Roxann Ploss), associates, predecessors, successors, assigns, parents, subsidiaries, alter egos and affiliates (collectively, the `Releasing Parties"), fully release and discharge Palm Springs, the Developer, the Developer's affiliated entities (including, without limitation, O&M HR Associates, LLC and 0&M HR, LLC), and their respective present and former officers, directors, employees, partners, attorneys, independent contractors, agents, insurers, accountants, heirs, and successors and assigns (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. The Committee, 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. Committee 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, the Committee, 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. The Committee 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. The Committee, 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: -4- 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. Committee's Initials: Frank Tysen's Initials: Roxanne Ploss' Initials: (c) The Committee, on behalf of itself and 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. The Committee, 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 Committee, 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 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_ -5- 7. 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 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. 8. Remedy in Event of Breach. Except as provided below with respect to the Agreed Non Material Modifications, the Parties' sole and exclusive remedy for breach of this Agreement shall be an action for specific performance or injunction. Except as provided below with respect to the Agreed Non-Material Modifications, in no event shall any party be entitled to monetary damages for breach of this Agreement. Except as provided below with respect to the Agreed Non-Material Modifications, 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, 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, breaching party fails to commence and thereafter diligently complete the activities reasonably necessary to remedy the claimed breach. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, the foregoing limitation on remedies and notice and cure period provisions shall not apply to any breach by Committee and/or any Non Contesting Party of the obligations set forth in Section 3 of this Agreement as they relate to Agreed Non-Material Modifications (only), and in the event of any breach by Committee and/or any Non-Contesting Party of the obligations set forth in Section 3 of this Agreement as they relate to Agreed Non- -6- Material Modifications (only) Palm Springs and Developer shall be entitled to all rights and remedies available pursuant to this Agreement, at law or in equity. 9. 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. 10. 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. 11. 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. 12. 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. 13. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California. 14. 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. 15. Time Is Of The Essence. Time is of the essence in the performance of all obligations under this Agreement. 16. 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. 17. 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 -7- the advisability of making the compromise and settlement provided for herein, and with respect to the meaning of California Civil Code §1542, 18. 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. In the event any Party hereto brings an action or proceeding for a declaration of the rights of the Parties, for injunctive relief, for an alleged breach or default, or any other action arising from or related to this Agreement, the prevailing Party in any such action shall be entitled to an award of reasonable attorneys' fees and costs incurred in such action or proceeding, in addition to any other damages or relief awarded (subject to Section 8 above), regardless of whether such action proceeds to final judgment. 19. 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. 20. 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: Committee for Better Community Planning Frank Tysen and Roxann Ploss c/o Babak Naficy, Esq. Law Offices of Babak Naficy P.O. Box 13728 San Luis Obispo, CA 93406 To: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 With a Copy To: Douglas C. Holland, Esq, Jason Retterer, Esq. Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 To: O&M Indian Canyon, LLC 1 Mac Arthur Place, Suite 300 Santa Ana, CA 92707 With a Copy To: M. Katherine Jenson, Esq. Rutan & Tucker, LLP -8- 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. 21. 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 Committee. 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. 22. 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 Left Blank] -9- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Committee For Better Community Planning By: By: Name: Frank Tysen Name: Roxann Floss Title: An Individual and on Behalf of Title: An Individual and on Behalf of Committee for Better Community Committee for Better Community Planning Planning APPROVED AS TO FORM: By: Name: Babak Naficy Title: Attorney for Petitioners City of Palm Springs; Palm Springs City Council -C� Name: STEPHEN P. POUGNET Title: Mayor ATTESTED: By: APPROVED QY CITY COUNCIL Na JAMES THOMPSON T' . City Clerk, City of Palm Springs APPROVED S TO FORM: By: kUvk4"_ Name: Q uglas Holland Title: C6 Attorney, City of Palm Springs [Continued on Next Page] -10- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Committee For Better Community Planning By: By: Name: Frank Tysen Name: Roxann Ploss Title: An Individual and on Behalf of Title: An Individual and on Behalf of Committee for Better Community Committee for Better Community Planning Planning APPROVED AS TO FORM: By: Name: Babak Naficy Title: Attorney for Petitioners City of Palm Springs; Palm Springs City Council By: Name: SfEPHEN P. POUGNET Title: Mayor ATTESTED: APPROVED BY CITY COUNCIL ?PPROVED JAMES THOMPSON y Clerk, City of Palm Springs AS TO FORM: By- Na e: [pouglas Holland Title: City Attorney, City of Palm Springs [Continued on Next Page] -10- O&M INDIAN CANYON, LLC By: Name: Title: O&M HR, LLC By: Name: Title: APPROVED AS TO FORM: By: Name: M. Katherine Jenson Title: AttorneyforReal-Parties-In-Interest [Signature Page to Settlement Agreement and Mutual General Release] -11- Schedule 1 Agreed Non-Material Modifications Hnrcl lock Horel Site Plvi C'omixiiison ,. ,.�,,.x•oi-ed , .,'�. `.kco 'osecl ....,•. Diffrt'rnce Sellr«:l s vai Toagw— ctel3miding S'^'91 ?estauravtBlnicI'tlg 20, IV c° Se.backs on El Segluldo - cCdl✓�11L"RlM1I� • e`.i[alII.EliC l`]`illld�lg 20, IW I'll' 'Se.liaCl:'u 077r LIML55 otalBuEftg 105, Its —13' •auLing Jtrk.tnre 3. : J ---G"' SeLbEclss on C aLe p l^rondo 154, 159' —15' ;tsl:u�Strsctun 30, 44' —14' Elei:l+i ?i&E r Smicnze 4�' 72' —?7' Floor A:eiRDdo 1.55 1.44 _Q J ;siSP,-130,Sdbuldic�; (Ei-.67�sfinaildin�i .-31.l90c#) O'TES: 1. ry Floors elintituttetl oil east vlmg of howI;"xo x 7 stun•ieo ry. Hotel bnildinrg reduced jai oF'erall u-idcil b v 10' 3, Toeal square feet of project reduced bl -rpprosimote1ir 55,000 sf isee Floor Attu R-mlor 14ove) J.Pnt'lcing srt ueture vill now be 5 staiiet above ground lath a shade structure at a height trot to exceed Try, -12-