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Document 9: AM Group; ADMINISTRATION Document
Description: ISettlement greemert Financials
Appirmnal OWn: 0775—r2007 Expire.Date: i—I Closed Date: I I I
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SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into this-31 5 l day of July, 2007
between the City of Palm Springs (the "City") and Jane Smith ("Smith"). The City and Smith
are collectively referred to herein as the "Parties" and sometimes individually referred to as
"Bach Party."
RECITALS
A. On or about March 31, 2004, the City Council of the City of Palm Springs
approved various amendments to the City of Palm Springs General Plan Land Use and
Circulation Elements and adopted a Master Plan/Specific Plan for a 640 acre area bound by
Alejo Road, Sunrise Way, Ramon Road and Indian Canyon in Section 14 (collectively, the
"Project") and certified the Final Section 14 Master Development Plan/Specific Plan
Environmental Impact Report/Environmental Impact Statement for the Project ("Final EIRJEIS")
pursuant to the California Environmental Quality Act ("CEQA").
B. On or about May 3, 2004, Smith filed a Petition for Preemptory Writ of Mandate
and Complaint for Declaratory and Injunctive Relief against the City entitled Jane Smith v. City
of Palm Springs et. al., Case No. INC 042895 in the County of Riverside Superior Court (the
"Petition" or "Action"). The Petition alleges that the City failed to comply with CEQA because
i (1) the City failed to properly analyze the Project's direct and cumulative impacts on water
resources and (2) failed to make the Final EIR/EIS available for public review. The Petition
further alleges that the City violated California Water Code § 10910 by failing to prepare a
j Water Supply Assessment for the Project.
C. The City Council's environmental review was subsequently the subject of a voter
referendum, Measure U, on the November 2, 2004 ballot, and the Action was previously stayed
pending the voters' consideration of that referendum. Measure U read as follows: "Shall
Resolution 20866 approving amendments to the General Plan Use and Circulation Plan for
iSection 14 be adopted?" The voters approved the referendum at that election.
D. On or about April 13, 2005, City filed a Notice of Hearing on Demurrer By
Respondents/Defendants City of Palm Springs and Palm Springs City Council; Demurrer to
Petition and Complaint by Petitioner/Plaintiff Jane Smith; Memorandum of Points and
Authorities In Support Thereof("Demurrer"), which alleged various procedural, jurisdictional,
and substantive defects with the Petition, including inter alia, the inapplicability of Water Code
§ 10910.
E. On or about December 9, 2005, Judge Fry filed an "Order After Hearing on
Demurrer," which sustained the Demurrer, without leave to amend, as to the Petition's alleged
violation of Water Code § 10910, and overruled the Demurrer as to the remaining causes of
action alleging violations of CEQA.
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F. The Parties now desire to settle and dispose of the Action in order to avoid the
ongoing expense, delay, and uncertainty of further litigation, and to resolve, settle, and
compromise the Action between the Parties, once and for all, as set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants, promises and
undertakings set forth herein, the receipt and adequacy of which the Parties hereby acknowledge
are sufficient consideration for this Agreement, the Parties agree as follows:
I SECTION 1: AGREEMENT OVERVIEW.
A. No Admission of Liability. The Parties agree and acknowledge that this
Agreement reflects a compromise and settlement of claims, disputes and differences between
them that are denied and contested. The Parties agree that neither this Agreement nor the
payment of any monetary consideration, as provided herein, shall be construed as an admission
by any Party of any liability of any kind to the other.
B. Recitals True and Correct. The above recitals are true and correct and are hereby
incorporated by reference as part of this Agreement.
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C. Headings Not Limiting. Section and subsection headings contained herein are
included for the convenience only and shall not be deemed to govern, limit, modify, or in any
imaimer affect the scope, meaning, or intent of the provisions of any section or subsection herein.
D. Third Party Beneficiaries. This Agreement has no third party beneficiaries and no
j one other than the parties shall have any right to enforce any of the obligations created in this
Agreement.
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E. Effective Date of the Agreement. The effective date of this Agreement is the date
I that the Mayor of the City of Palm Springs executes the Agreement.
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SECTION 2: CITY'S OBLIGATIONS.
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A. Water Supply Study. The City shall prepare a Water Supply Study that is
consistent with the Scope of Work for the Water Supply Study Section 14 Master Development
Plan-Specific Plan, attached hereto as Exhibit "A" and incorporated herein by this reference.
B. Supplement to the Final EIR/EIS. The City shall prepare a supplement to the Final
EIR/EIS that will "supplement" Sections 4.2 and 5.2 relating to "Water Resources" of the Final
EIR/EIS (the "SEIR"). The SEIR shall analyze both the availability and adequacy of water
i supplies for the Project, as well as the feasibility of obtaining water from the primary source and
alternative sources listed in the water study and the direct, indirect and cumulative impacts of
I extracting water from the identified sources. The City shall prepare the SEIR pursuant to section
15163 of the CEQA Guidelines and shall circulate the SEIR for public review and continent in
accordance with that section. The City further agrees to present the SEIR to the City's decision-
making body for certification at a noticed public hearing. The City shall publish the Notice of
01003/0030/51246.01
Availability of the SEIR and any notices of public hearings to consider the SEIR in the Desert
Sun, and shall mail copies of said notices to the Office of Neighborhood Involvement. The City
shall, in good faith, try to complete and certify the SEIR within twelve (12) months of the
effective date of this Agreement.
C. Hearing on the Project. The SEIR will be presented for adoption to the City
Council as an amendment to the Final EIR/EIS at a public hearing in accordance with CEQA.
The City agrees not to rely upon or to further utilize the analysis contained within the Final
EIR/EIS concerning water and instead will only rely upon the SEIR's updated analysis of water-
related impacts in future projects, but only to the extent as permitted by CEQA.
D. Attorneys' Fees and Costs. The City shall pay attorneys' fees and costs of thirty-
eight thousand dollars ($38,000.00) total to Smith. This payment shall satisfy any and all claims
including, without limitation, those for attorneys' fees and costs, arising out of or related to the
' Petition. The City shall make payment within fifteen (15) days of the effective date of this
Agreement. The payment shall be addressed to the Law Offices of Babak Naficy, P.O. Box
13728, San Luis Obispo, California 93406.
E. Release of Liability.
1. The City hereby fully, finally and forever releases and discharges Smith of and
from any and all claims, rights, liabilities, demands, obligations, duties, promises, damages,
actions and causes of action of any kind whatsoever, whether know or unknown, arising under
any provisions of law or suits seeking attorneys' fees or costs (collectively "Claims") that the
City has incurred in defending the Action.
2. Notwithstanding subsection E.I. of this section, the City shall not be precluded
from pursuing Claims against Smith that may arise from any future Claims that Smith may
pursue against the City in conjunction with its consideration and approval of the SEIR and/or
related action on the Project.
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SECTION 3: SMITH'S OBLIGATIONS.
A. Dismissal of Action With Prejudice. Smith shall dismiss the Petition, with
j prejudice, subject to reserving her rights to challenge the SEIR and the water study that it is
based, in whole or in part, in a subsequent action. The issue of which additional claims, if any,
would be barred by the doctrine of res judiciata or issue preclusion is not decided here, but
instead will be decided, to.the extent necessary, in a subsequent action, if any.
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B. Release of Liability.
1. Smith, on behalf of herself and her respective successors, assigns, agents,
attorneys, representatives, conservators, heirs, executors, administrators and related, affiliated,
parent and/or subsidiary partnerships and corporations, past and present, and each of them,
waive, relinquish and release any and all claims, rights, liabilities, demands, obligations, duties,
promises, damages, actions and causes of action of any kind whatsoever, whether known or
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unknown, arising under any provisions of law or suits seeking attorneys' fees or costs
(collectively "Claims") to challenge judicially or administratively, directly or indirectly:
a. The approval of the Project; or,
b. The adequacy and approval of the Final EIR/EIS.
2. Notwithstanding subsection B(1) of this section, Smith shall not be precluded
from pursuing Claims relating to the adequacy of the SEIR's analysis of the Project's water
supply impacts.
i SECTION 4: OBLIGATIONS OF THE PARTIES.
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A. Waiver of Civil Code Section 1542. The Parties acknowledge that if the Parties
i hereafter discover facts in addition to or different from those which they may now know or
believe to be true with respect to the subject matter of this Agreement, it is nevertheless the
Parties' intention to fully and forever settle and release any and all Claims, as that term is defined
in this Agreement. In fiirtherance of this intention, the Parties acknowledge that they are familiar
with section 1542 of the California Civil Code, which provides:
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i "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
' CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
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The Parties hereby waive and relinquish any rights and benefits they may have under
section 1542, subject to the other terms and conditions of this Agreement.
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Initials: Cityat Smith {
B. Execution of Stipulation. Within seven (7) days of the effective date of this
Agreement, the Parties shall enter into and file with the Superior Court a stipulation that is
consistent with this Agreement. The stipulation shall provide for the dismissal of the Petition
with prejudice. The stipulation shall further provide for the Superior Court's continued
jurisdiction for the limited purpose of ensuring compliance with the terms of the Settlement
Agreement. The stipulation shall provide for the termination of the Superior Court's jurisdiction
upon the occurrence of all of the following conditions:
' 1. The City certifies the Final SEIR.
2. The City files a Notice of Determination relating to the Final SEIR.
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3. The statute of limitations for a challenge to Final SEIR has expired.
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SECTION 5: MISCELLANEOUS.
A. Ownership of Claims. Each party hereby warrants that they are the owners of,
and the Party legally entitled to settle and release, every Claim referred to herein.
B. Independent Advice and Investigations. Each Party represents and warrants that it
has received independent legal advice from its attorneys with respect to the execution of this
Agreement and that it has read this Agreement and understands its contents. Each Party
represents and warrants that it has made such investigation of the facts pertaining to the
settlement set forth in this Agreement and of all matters pertaining thereto as it is independently
deemed necessary and appropriate. Each Party further represents and warrants that it has relied
solely upon facts obtained from its own investigations and upon the advice of its own attorneys
and legal representatives in executing this Agreement and that it has not relied upon any
statement or representation of any other Party or their attorneys or representatives.
C. Mistake. In entering into this Agreement, each Party assumes the risk of any
mistake. If any Party should subsequently discover that any fact relied upon by it in entering into
this Agreement was untrue or that its understanding of the facts or the law was incorrect, such
Party shall not be entitled to relief in connection herewith and including without limitation on the
generality of the foregoing, no Party shall have any right or claim to set aside or rescind this
Agreement. This Agreement is intended to be and is final and binding between the Parties hereto
regardless of any claims of mistake of fact or law.
D. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of California.
E. Entire Agreement. This Agreement constitutes the entire understanding of the
i Parties with respect to its subject matter. All prior and contemporaneous conversations,
negotiations, possible or alleged agreements, covenants, releases, representations and warranties
I in respect of the subject matter of this Agreement are integrated herein and superseded by this
Agreement.
F. Agreement May be Pled as Defense. The Agreement may be pled as a defense by
1 the Parties against any action in violation of the Agreement.
G. Severability. In the event any part of this Agreement should be found invalid,
unenforceable, or nonbinding, the remaining portion will remain in force and fully binding.
H. Legal Fees. In the event of any proceeding between the Parties, their heirs,
successors or assigns, to interpret this Agreement or enforce any provision or right hereunder, the
prevailing party shall be entitled to recover all costs and expenses incurred including, but not
limited to, the fees of attorneys and expert witnesses. These amounts shall be included as part of
the judgment or award rendered in such proceeding.
1. Agreement Negotiated. The text of this Agreement is the product of negotiation
among the Parties and is not to be construed as having been prepared by one party or the other.
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J. Heirs, Successors and Assign. This Agreement shall bind and inure to the
benefit of the Parties and their heirs, successors and assigns.
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K. Execution in Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which taken together shall constitute one
and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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01003/0030/51246.01 (Dr
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, consisting
of a total of seven (7)pages and the attached exhibit, as of the dates set forth below.
"CITY"
CITY OF PALM SPRINGS
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By: f �� .G',®� Date:
RONALD ODEN,
Mayor APPROVED BY CITY COUNCIL � a���
ATTEST:
By .gin= `�s' `�� +� Date: ( 1 2z 6
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THOMPSON, u
i 6 G ity Clerk
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By. Date:
DAVID H. READS
City Manager
APPROVE f�AS TO FORM:
By: ��%i���!� Date:
DOFGLAS HOLLAND,
City) Attorney
"SMITH"
j JANE SMITH
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By: , Dater
APPRO D AS TO FORM FOR P AINTIFF BY:
By: a/ Date:
BABAK NAFICY, ESQ.
� Counsel for Plaintiff
01003/0030/51246.01 "�-'
EXHIBIT A
j SCOPE OF WORK
WATER SUPPLY STUDY
SECTION 14 MASTER DEVELOPMENT PLAN/SPECIFIC PLAN
I. Identification of"Baseline" Water Supply Conditions
A. Describe existing supply and demand on Desert Water Agency
("DWA"):
DWA's service area is approximately 325 square miles and includes the City of
Palm Springs. For purposes of determining the adequacy of long term water supply for
the Section 14 Specific Plan, the Supplemental Water Supply Study ("Water Study")
would consider existing water demand relative to DWA's current water entitlements.
The Water Study would quantify existing demand on DWA water supplies, including
potable and non-potable demand and to identify the remaining water supply that is
available to accommodate build-out of the Section 14 Specific Plan.
B. Assess lmown water supply problems.
The Water Study must provide a detailed assessment of any known water supply
problems in the area, including current overdraft conditions affecting any of the
groundwater basins that DWA currently draw from to meet water demand. Describe any
existing or proposed DWA efforts to address the overdraft condition, including the
injection of imported water into the groundwater basin to address the overdraft condition.
C. Identify existing water supply entitlements, water rights and
contracts.
Describe all existing entitlements, water rights, and water service contracts
relating to the provision of water supply for Section 14, including rights to surface water,
natural ground water, and imported groundwater. If the available water supply includes
the provision of water from a water wholesaler, such as the Metropolitan Water District
("MWD"), describe the wholesaler's current entitlements and water rights as it relates to
the water being provided to DWA.
D. Describe the existing water distribution or delivery system
Describe the locations and capacity of existing water pipelines and infrastructure
to serve current uses within the Section 14 Specific Plan area.
E. Discuss and Summarize components of the DWA Urban Water
Supply Management Plan (2005)
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In December 2005, the DWA Board adopted an updated Urban Water
Management Plan pursuant to California Water Code Division 6, Part 2.6 (Urban Water
Management Planning). In coordination with DWA, assess whether and to what extent,
the Plan addresses build-out of the Section 14 Specific Plan area. Summarize the
conclusions of the Plan as it relates to land term water supply to serve future uses within
DWA's service area boundary, including Section 14.
II. Assess potential impact of Section 14 Specific Plan on DWA Water Supplies
A. Assess projected water demand requirements
Quantify projected water demand for future build-out of the Section 14 Specific
Plan, including demand for (1) potable water, (2) non-potable (irrigation) water and (3)
fire flow requirements.
B. Analyze direct and cumulative potential impacts on DWA's existing
and long term water supply
Review 2005 UVMP and coordinate with DWA regarding DWA's ability to serve
future uses within the Section 14 Specific Plan. Analyze whether the proposed specific
plan uses were considered in DWA's 2005 UWMP. In addition, assess whether DWA's
supplies are adequate to serve the Section 14 Specific Plan land uses and other
"cumulative" projects within the DWA service area boundary. This analysis must also
consider any additional impacts on any existing water supply problem, including the
current overdraft condition of the Indio Sub-basin.
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I C. Identify feasible mitigation measure, if required
If the Section 14 Specific Plan will exceed the projected water supply of DWA,
! based on existing entitlements, water rights, and contracts with Metropolitan Water
(MWD) District and any other water wholesalers, identify feasible mitigation measures to
address the potential short fall. These measures may include entering into contracts or
I agreements with other water purveyors or exercising any existing water rights that may
benefit Section 14. Additional mitigation measures may include mandatory conservation
i features that exceed any current DWA requirements and extensive use of recycled water
for irrigation and landscape purposes.
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