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04983 - CITIZENS FOR RESPONSIBLE PLANNING - SETTLEMENT AGREEMENT
DOCUMENT TRACKING Page: 1 Report: One Document Detail May 9, 2006 Condition: Document Number a4983, Document# Description Approval Date Expiration Date Closed Date A4983 Settlement Agreement Release Of All Claims 10/20/2004 10/01/2005 Company Name: Citizens for Responsible Planning Address: Service: Incomplete/Missing xRef: CITY MANAGER Ins. Status: No Certificate on file. Document Tracking Items: Due Completed Trackina Amount Amount Code Item Description Date Date Date Added Paid Track Notes: Troy (ACM) provided copy of the settlement agreement signed by all parties except the City. Per Jay (City Clerk) scan and close the file. 001 New Document Added 10/25/2004 ` * * * * * ENDOFREPORT* * * * * * DOCUMENT TRACKING Page: 1 Report: One Document Detail April 24, 2006 Condition: Documen"Nui berA4983, Document# Description Approval Date Expiration Date Closed Date A4983 Settlement Agreement Release Of All Claims 10/20/2004 10/01/2005 Company Name: Citizens for Responsible Planning Address: Service: Incomplete/Missing xRef: CITY MANAGER Ins. Status: No Certificate on file. Document Tracking Items: Due Completed Tracking Amount Amount Code Item Description Date Date Date Added Paid 001 New Document Added 10/25/2004 END OF REPORT * * * * * * � a 4) �� r VIA 10/20/2004 WED 12:27 FAX 9002/005 ADDENDUH 10 SETTLEMENT AGREEMENT&RELEASE OF ALL CLAIMS This Addendum to the Settlement Agreement&Release Of All Claims("Addendum']is untcrcd into by the City of Palm Springs (the "City'"} and McComic Consolidated, Transwest Housing,and Palm Springs Village 309,LLC(collectively referred to as the"DcvclopceJ to add the condition of approval specified herein to the conditions of approval for the Project,as del ed. by the Agreement, RECITALS WMREAS, the City's existing public safety and recreational services, including police protection, criminal justice, fire protection and suppression, ambulance, paramedic and other safety services and recreation,library and cultural services are near capacity; WHEREAS, in light of the additional number of residents that the Project Will bring to the City, additional services cannot be providod to the Project absent significant additional cost to the City; WHEREAS,to fund the additional costs for the aforementioned services because of the Project, the Developer agrees to support the formation of a CommunityServices District under autharity of Government Code Sections 53311 et. seq-, or other appropriate statutory or municipal authority WHEREAS, the Developer agrees to support the formation of the aforemerdtiot)ed assessment district and to waive any right of protest, provided that the amount of such assessment shall be establisbed through appropriate study and shall not exceed S500 annually per residential unit with a consumer price index escalator;and WHEREAS, the aforementioned district shall be formed prior to sale of any lots or a covenant agreement sball be recorded against each,parcel. ,ADDENDUM NOW, THERMORE, fox frill and valuable consideration, the receipt and adequacy of which arc hereby acknowledged. and based upw the foregoing recitals and terms, conditions, covc" mu and agreement contained herein, and m addition to the terms of the Agrcycmcnt, Dever and the City agree to the following- i. Addition Of Public Safe Assessment District To Conditions bi A royal. Developer agrees to add the following to its existing conditions of approval for the project: "The project will, bring a significant number of additional ,residents to the community. The City's existing public safety and recreational services,luoluding police protection, criminal justicc, fire protection and suppression, ambulance, paratpedio and other safety services and recreation,ir"brary and cultural services are near capacity. Accordingly, the City may determine to form a Community Services District under authority of Government Code Sections 53311 e -1- 0100. O7tI3nO7,Di \r 0 10/20/2004 WED 12.27 FAX 003/005 seq., or other appropriate statutory or municipal authority. Developer agrees to support the formation of such assessment disttiet and shall waive any right of protest, provided that the amount of such assessment shall be established through appropriate study and shall not exceed $500 w mually per residential unit with a consumer price index escalator. The district shall be farmed prior to sale of any lots or a covenant agreement shall be recorded against each parcel," 2. Rxewtion Tn Co mpmarts And By Facsimile.This Addendum shall be permitted to be signed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one agreement. Signatures may further be transmitted via facsimile. IN WITNI�SS WHEREOF, the undersigned have executed this Addendum to the Settlemout Agreement and Relcase of Claims,on the dates set forth below. "CITY" Dated; _ .2004 THE CITY OF PALM SPRINOS,a municipal corporation,and the PALM SPRINGS CITY COUNCIL By: City Manager ATTEST By: City Clerk ``DEVELOPER" Dated: ,2004 MCCOMIC CONSOLIDATED By: Vated: 2004 TRANSWEST 14O'C.1rSING By: 410A3l00'11l3�47.41 10/20/2004 M 12:27 FAX 9004/005 Oc t. 20. 2004 11:56AM NNo. 7914 YP. 2 scgy or other apmoprIate y ar =ma* =ffi aty. Dcvdop= -gem to support the forrm2bcm of Sf& memmmt dwmcit=4 sh&U waivc aay right of psatcs�, provided Qm the. mnoUd of suck rise=zmt shall be mad through epproprWa sWdy and shall fiat exceed M mmmIly per naidcat4al unit wn a o=w=cr pziw index asoal m. The dast6m shall be *zmod prior w We Of say lots or,%cuvmmt agmemcnt shall be reaardrd apinsr ewh pftat " 2 gnb-0aM*MQU And_> a This Addax shad be p=mittod m be sigaEd.in%0111 iplc c0UUtwPMts- eaala of wh[ab s6a11 be Considered as oII&4 but all.of 'Mch s'h$11 constitute aae agradmwL S19MO e W MAY�ba Mnsmktod via faoeimila. IN 'QVi .Mg WTMt.8OF, tb* mdersiaed have ate=Ad this Addcodmn To tbx StAdment Agremant and Rela me of Qaioa,onthe dates sttfDrthbcjow- Dated: -=2004 THE CITY OP PALM seas,a m>-ieipad pox,ad tho PALM srFINGs Cry COUNM By., ATTEST City M H� aty C 06 `MEYBL OPER" Dom' _/=/? .2W4 MCCOMIC CONSOUDATED E3►' DAM& /d•l'f ,2004 TAANSWBST Ot)S1NG gy. � 10/20/2004 WED 12:os Crx/Rx Ho si511 IM002 10/20/2004 WED 12:27 FAX R 00 /005 Oct. 20. 2004. 11:51AM Mo. 7314 R. 3 Date- jo'j a° 2004 PALM SP CAS 11 So9,�� APPROV=AS T4 PakM: Date& _ , %2004. AL.ESHME&WYNDM LLP CiWANCENY DAVlx7 A r�.curn-�, PAUL Carm�for itra!P 10/20/2004 top 12:03 [TX/RX NO 0151] �fj00@ MINUTE ORDER NO. APPROVING A SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS BY AND BETWEEN CITIZENS FOR RESPONSIBLE PLANNING AND THE CITY OF PALM SPRINGS CONCERNING CASE NO, INC 043700. I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement and Release of all Claims by and between Citizens for Responsible Planning and the City of Palm Springs concerning Case No. INC 043700, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 20'day of October,2004, PATRICIA A. SANDERS City Clerk Dec. L 2004 2:51PM No. 9087 P. 2 ATTORNEY OR PARTY WnHOUr ATTORNEY(Nanw ndAaseu/: TELEPHONEN0.: FORCOURTUSEOM.Y ALESHIRE & WYNDER, LLP AVID J. ALESHIRE, Bar No. 65022 1 HHONY R. TAYLOR, Bar No. 208712 18881, Von Farman Avenue, Suite 400 Irvine, CA 92612 i i i ATTORNEYFoR(Namet City of Palm Springs e Palm Snrin s City Council 1 Yuen nARro,ream and MTA orjuLeealduYia ane aranrh mat Haw. i SUPERIOR COURT OF CALIFORNIA COUNTY OF RIVERSIDE -- INDIO BRANCH PLAINTIFF1PEnTIONER: CITIZENS FOR RESPONSIBLE PLANNING DEFENDANTIRESPONDENT: CITY OF PALM SPRINGS, et al. NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE CASENUYS ! (� Personal Injury,Property Damage,or Wrongful Death [= Motor Vehicle []Other INC 043700 Family Law Q Eminent Domain j E0 Other(spectfy): Writ of Mandate j TO ATTORNEYS AND PARTIES WITHOUT ATTORNEYS: A dismissal was entered in this action by the dark as shown on the ; Request for Dismissal. (Attach a copy completed by the deck) Date: November A, 2004 Anthony R. TaXlor I �`� rive OR PR W1 NAA@OF ®ATTORNEY MPARTYWTHOUrATTORNE) (S16tU7 _ e i PROOF OF SERVICE 1 1. 1 am over the age of 18 and not a parly to this cause. I am a resident of or employed in the county where the malting occurred. My residence or business address is: 18981 Von Farman Ave., Ste. 400 Irvine, CA 92612 t 2. 1 served a copy of the Notice of Entry of Dismissal and Request for Dismissal by mailing them, in a sealed envelope with postage fully prepaid,as follows: a. =I deposited the envelope with the United States Postal Service- b. XD I placed the envelope for collection and processing for mailing following this business's ordinary practice with which I am readily familiar. On the same day correspondence is placed for collection and malting, it is deposited In the ordinary course of businAss with the United States Postal Service. a. Date of deposit: November , 2004 j d. Place of deposit(city and state): Irvine, CA 92 612 e, Addressed as follows(name and address): See Attached Service List i 3 3. 0 1 served a copy of the Notice of Entry of Dismissal and Request for Dismissal by personally delivering copies to the person served as shown below. Name: Date: Tyne: Address: 1 i 1 1 4. 1 dedanb under penalty of perjury under the laws of Its State of California that the foregoing is true and correct. i de: November 0118, 2004 � .inda Yarvis . . ....... .. . .. I.. . . . . . .. ... ... .. . . .. . ....... . OWCORPRINTNAME) (81 CF DECLARWI) Fa,=ledbyim NOTICE OF EN FDISMISSAL CotlacfON°P'°ao0""§ter N.aa. haw,= dcouwaE Cal RWea of QUA rWn�,7233 Wax")P&M�G�111071 AND PROOF OF SERVICE � RECEIVED TIME DEC. 1. 3:OOPM , �� �J Jii �g 0 Dec. 1. 2004 2:51PM No. 9087 P. 3 3 r 1 Cidzens for Responsible Planning v,CUy of Fizfm,Pprings,et aL Riverside Superior Court,Indio Branch—Case No,INC 043700 � .. 2 1 3 SERVICE LIST 4 Babak Naficy,Esq. 5 Law Offices of Babak Naficy 1204 Nipomo Street 6 San Luis Obispo, CA 93401 j (805)593-0946--facsimile F 7 3 Y 8 Paul O'Boyle,Est(. McComic Consolidated 9 9968 I ibert,Street, Suite 102 San Diego,CA 92131 10 (858)653-3001 --facsimile 1 11 12 13 14 1 15 ; 16. E a 17 18 i 19 20 21 22 j 23 24 I 25 i 4 I Z 21 ,.. 28 .5. RECEIVED TIME DEC. 1. 1:00PM i No. 9087 P. 4 Dec, 1, 2004 2:51PM 3 ArTORNCY eft Fe&AN W00WATrORRET P4me m Ault* TEIJPN NO: rdRCOO rMaftr Babak Neficy(SBN 177709) 805-593-0926 (� 11 fl f� [i;1 LAW OFFICE OF BA13AK NAFICY u 11 l�_a Ems- V 1204 Njpomo street S✓)PERIO )AAIC)PAL COURT San Luis Obispo,CA 93401 OF RIYr-RSIDE COUNTY AUDWYFOR lwmIX Petitioners,Citizens for Responsible Planning eq�A.mw�d, w�stxwe�d�. # NOV U9 2004 I Pjvdbidd Stijierior Court,Indio Branch 1 ?i AICrnFFmEmIONEa Citizens for Respoasib a Planning FL Macag, �It7 DE:FENDANT/RESPONOENP City of Palm Springs,et.al. E ! REQUEST FOR DISMISSAL CASC NUMBER �] Personal injury,Property Damage,or Wrongful Death I []Motor Vehicle Q Other (� Family Law INC 043700 ; EminentDomalo ' other(spa(ty)a Writ of Mandate wfformad•copy will not be refdr1e4 by the clerk unress a method of return is provided with the document — '.- 1 1.TO THE CLERK:Please dismiss this daft as fellows: a..(1)Q]With prejudice (2)© Without prejudice i b.(1) Complaint (2)W Petition (3) tkosscompiaintfiled by(name): on(date):_ (4)LJ Cross-wmplalnttlted by(name): on(date): 1 (5) Fidtro action of an parties and all causes oractlon ( fete:NQvembe;2,2004•_ ;. ; �':r'.��.. ... : . " ._...'... . .. �' 1 LAW t)FFIC,B VFBABAKIVAFtCY ' 1 :fraeYcaFa�,lyo0,roRun.er.sl:I,1a�®a«7ruI Nuosr,Mre a1pfaatRtl.sFGaeorGat ,AmmTcT»aoaesvtq.aro�toae�GuNv.ba aw+Mrs{,,ua wx.swao�se aps�mt brot.e.uedy .. atlome.y_o..r party wilhoute( riar :p I;Pla)ntiNPetidonar M1SefendanURaspondent Cross-complalnant 2.TO THE CLERK:Consent to the above dismissal is hereby given." i Date: (IvaeIAPPWW"Vor0;Troaas pvAmrwrrNolrArrawva» a�nx�I j Ira 900angc►yE-WPAtpaue(Femdy taW)OwMaj.INmaam Attorney or party without attorney for. rerwl=.+ronroc,saasomey foe="4omgarn.m(MwomeoMW (� plaintitffPelboner []pefendant)RespOndent a Gss.rarm.nta'y4*Wa ycoae.<GwRomdura.eacnsef(q � plainsnt (rope gAptetodo deli 3,AM Dismissal entered as requested on(date): 4, Diismissal entered on(data): as to only(name); S. Dismissal not entered as requested forihe t'ol(owing mascim(sped(y): J 6.© a.Attorney or party without attorney notified on(data): �' f D.Attorney or party without aflomgy not notified. Flling party felled to provide _ 1 []a copy to.conform means to return conformed Copy , Date: Clsrk,by_ Tt" ' Dam p T 1 FamAmr�M�. REQUEST FOR DISMISSAL Cede UG+Ihm•kra�_fBIINmp. AK.vl CautrlldC.rrane CA Rd.dcwd,,-"W It .._ i RFCFIVFD TIV OFT.. 1. "OPM 1 1 F SETTLEMENT AGREEMENT&RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (the "Agreement")is entered into by and between Petitioner Citizens For Responsible Planning(`Petitioner"),Respondents City of ]Palm Springs and the Palm Springs City Council (the "Respondents"), and Real Parties in Interest McComic Consolidated, Transwest Housing and Palm Springs Village 309, LLC (the j "Real Parties") (collectively all of the aforementioned parties are referred to as the "Parties")to terminate.fully and finally all disputes arising out of,or related to,the Action defined hereinafter. RECITALS e W MIZEAS, on June 10, 2004, Petitioner filed a petition for peremptory writ of mandate and complaint for declaratory and injunctive relief in the Superior Court of California, County of Riverside, Case No. INC 043700 (the "Action") against the Respondents and Real Parties, including Cathton Holdings, Inc. (which no longer has any interest in the litigation) seeking to vacate Respondents' approval and certification of a.Mitigated Negative Declaration,five General 1 Plan Amendments, a planned unit development district and a tentative tract map in conjunction with the approval of a residential unit, park and golf course development project known as the Palm Springs Village(the"Project');and i WHEREAS, as alleged in the Action, the Project is a proposed planned development district with 1,210 residential units on 309-acres, an 18 hole golf course on 90 acres and related 1 developments, a 7.5 acre park site, and a tentative tract map dividing the site into 782 parcels; 3 and i WHEREAS, the Petitioner claims in the Action that the Respondents violated the following laws: (1)the California Environmental Quality Act("CEQX by failing to prepare an Environmental Impact Report, (2) the open space requirements set forth by the General Plan of the City of Palm Springs (the "City") by failing to set aside adequate open space, and (3) Government Code § 66473.7 by approving the tentative tract map for the Project without requiring that the Real Parties furnish sufficient proof that sufficient water supply exists for the j Project; and WHEREAS, the Parties conducted a settlement meeting as required by Public Resources Code §21167.8 on July 29,2004, and all Parties hereto now wish to terminate this Action and to avoid the uncertainty and costs of a hearing on the merits of the Action, and any potential appeals therefrom, and to resolve fully and finally all disputes which may exist by and between the Pasties concerning the Project, s� AGREEMENT NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of Which are hereby acknowledged, and based upon the foregoing recitals and the terms,conditions, Peti o�tials Aa0W03431v,t RECEIVED TIME OCT. 19. 11 :08AM _ i 1 3 covenants;and agreements contained herein, all Parties hereto agree as follows: } 1. Performance And Improvements By Real Parties. Following the execution of this Agreement by Petitioner, execution by its counsel of record, and approval by the City and Real Parties, the Real Parties, upon commencement of construction of the Project, shall be obligated to perform each of the following improvements at the times set forth below: a. Underground Utilities. Real Parties shall, at their sole cost and expense, relocate and underground three(3)utility poles along San Rafel Drive, adjacent to Vintage Palms. The utility poles are more specifically located on the northeast comer of Avenida Caballeros and'San Rafael Drive, and are Wntified'as being utility pole # 4183195E, and the next two consecutive poles heading east along { San Rafael Drive. The under-grounding of these utility poles shall take place at 3 the same time as other utility under-grounding along San Rafael Drive,adjacent to r the Project. b. Reduction In Residential Units. Real Parties agree to reduce the total number of residential units developed in the multifamily area by sixty (60) units from what was originally approved by the City. The total number of residential units in the Project shall not exceed one thousand one hundred fifty(1,150) units. This reduction of residential units shall come from the multi-family residential parcels on the Approved Plans. c. Golf Course Design & Construction, Real Parties shall design and construct a golf course with desert appropriate landscaping that is substantially similar to the Desert Willows golf course. The intent is to only provide turf as needed in playable golf areas with the remainder of the golf corridors planted with water conserving desert-soape that is substantially similar to the Desert Willows golf course. d. Limits On Residential Front Yard Landscapine Each residential unit in the Project shall be restricted to using no more than fifty (50%) percent turf in the j front yard, excluding driveways and walkways. Furthermore, residents will be } encouraged to use desert landscaping in the Palm Springs Village CC&Rs, Landscaping outside of the front yard setback of each residential unit, including parks, pocket parks, and other community recreational areas, and the backyard of each residential unit,is not subject to this restriction. e. No Transltory Uses. As approved, Real Parties represent that the Project j will have no Transitory Uses,such as hotel,motel or timeshare uses. f. Four Lane Road On Sunrise Parkway. As approved, Real Parties represent that Sunrise Parkway is intended to be a four lane thoroughfare comprised of two traffic lanes in each direction of travel. g. Project Landscaping AlMg jndian Canyon Real Parties shall landscape the west side of the Project along Indian Canyon with an undulating fence/wall and sidewalk with setbacks that reasonably complement those of similar f developments on Indian Canyon from San Rafael to Vista Chino. i P14tioiaes Initials A&IN'$33431 v.1 -2_ _ . a d RECEIVED TIME OCT. 19, 11 :08AM 1 i t h. Lot Widths Along Avenida.Caballeros And Via San Dimas. As approved, Real Parties represent that the Project's residential units across from Avenida Caballeros and Via San Dimas shall have lot widths substantially similar to those in the adjacent 'Vintage Palms housing development ("Vintage Palms') with no more than one residential unit per lot. a 1. Entrance On Avenida Caballeros. Real Parties shall take all necessary } steps to ensure that the Project's entrance on Avenida Caballeros shall be a carded entrance for homeowners only. J. Adjacent Landscanin & infrastructure, Real Parties shall re-landscape along the east side of Avenida Caballeros, adjacent to Vintage Pahms,from San Rafael north to the Palm Springs' Village homeowners' gate at their sole cost and expense to reflect similar landscaping along the west side of Avenida Caballeros. The Real Parties shall not be required to commence said re-landscaping until such time that (a) the golf course is installed and irrigated, and (b) the erection of a perimeter wail and landscaping along the west side of Avenida Caballeros. k. Access To Recreational Facilities. Homeowners of Vintage Palms shall be offered the opportunity to purchase a membership to Palm Springs Village 1 recreational facilities upon completion of the Project, under terms that are the same as adjacent developments. 2. Dismissal Of Action By Petitioner. Within five (5) days after execution of the Agreement by all Parties and approval of the same by the City,Petitioner shall file with the Court a notice of dismissal of the Action in its entire as to all Parties with l _l entirety, prejudice. Petitioner shall serve a copy of said notice of dismissal on all Parties at the time of filing with the Court and promptly notify the Parties when the Court has formally dismissed the action with prejudice. j Petitioner shall take all necessary steps to ensure that the Action is forever dismissed in its entirety, as to all Parties with prejudice, at its sole cost and expense. Upon dismissal of the Action, Real Parties shall pay the Petitioner's counsel a sum not to exceed ten thousand ? ($10,000.00) dollars for Petitioner counsel's reasonable'attomeys' fees expended in the Action (the "Payment"). Petitioner's counsel shall provide Respondents' and Real Parties invoice(s) of j all fees that Petitioner's counsel requests payment for within ten (10) days of execution of this Agreement by all Parties. Payment of Petitioner counsel's reasonable attorneys'fees, as set forth herein, shall be made by Real Parties within thirty (30) days after dismissal of the Action in the form of a check payable to Petitioner's counsel of record,Babak Naficy,Esq. 3 3. No Further Objections, In the future, Real Parties may elect to modify the content of the Project subject to the terms set forth in this Agreement, or may need further permits or authority relating to the Project or the modifications from City, Petitioner shall take no action whatsoever to contest, delay, or otherwise involve themselves• in any such modifications, permits or authority, or in any way delay the approval processes connected therewith. However, nothing herein shall permit Real Parties to modify their obligations under this Agreement through the construction of additional housing units or to construct features on 1 P ' 'oner's Initials -�• J i A&W 033431 v,1 d i 9 RECEIVED TIME OCT. 19, 11:08AM 1 3 the common areas of the Project, such as decorative lakes that will substantially increase the 1 intended water usage at the Project provided that Petitioner shall not be permitted to object to the construction of swimming pools at the Project_ 4. Full Compensation For All Claims, All Parties acknowledge and agree that the Real Parties performance and payments under this Agreement shall and does hereby fully and j totally compensate Petitioner for all claims made in the Action and all disputed claims arising out of or related to the Action,including all claims for attorneys' fees, costs,and/or damages. 5. General Release. For valuable'consideration, the receipt and adequacy of which are hereby acknowledged, Petitioner does hereby release and forever discharge the "Releasees" hereunder, consisting of the Real Parties and the Respondents, their elected or appointed public officials, officers, employees, and agents, including, but not limited to, each of their associates, predecessors, successors, heirs, assignees,agents, directors, officers,employees,representatives, elected or appointed public officials, attorneys, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions,cause or causes of action, in law or in equity,suits,debts, liens, contracts,agreements,promises,liability, claims, demands,damages,loss, cost or expenses, of any nature whatsoever,known or unknown, j fiixed or contingent (hereinafter called"Claims'), which Petitioner has against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date of approval of this Agreement, without limiting the generality of the foregoing, any Claim constituting, arising out of, based upon, or relating to the Action, as well as any matters, causes,or things whatsoever that were or that could have been alleged in the respective pleadings filed in said suit,or that arise out of or relate to the Action. 3 6. Discovery of Different or Additional Facts. The Petitioner acknowledges that it may hereafter discover facts different from or in addition to those that it now knows or believes i to he true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that arc the subject of the Release set forth in Paragraph 5 of this Agreement,and expressly agrees to assume the xisk of the possible discovery of additional or ' different facts, and Petitioner agrees that this Agreement shall be and remain effective in all respects regardless of such additional or different facts concerning the above-referenced Action l and matters that arise out of or relate to the Action. 7. Release of Unknown Claims. The Release set forth above in Paragraph 5 of this Agreement is a release of ALL claims, demands, causes of action, obligations, damages, and 9 liabilities of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims which the Petitioner may have as a result of the Action, except for any action arising out of the terms of this Agreement 8. 'Waiver of Civil Code Section 1542. Further, Petitioner expressly agrees to waive and relinquish all rights and benefits that it may have under Section 1542 of the Civil ,:.i PePe tio�tials 1 1 _4 i A&W 03431 v.1 E �a s a RECEIVED TIME OCT. 19. 11 :08AM 1 i 1 Code of the State of California. That section reads as follows: r " §1542. [General release; extent] 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." i Petitioner's Initials 9. No Other Pending Actions. Petitioner represents that it has, not filed any complaints or charges (other than the Action referenced above)against the Released Parties with any local, state or federal agency or court; and that if any such agency or court assumes jurisdiction of any complaint or charge against the Released Parties, or their predecessors, successors, heirs, assigns, employees, shareholders, officers, directors, agents, attorneys, subsidiaries, divisions or affiliated corporations or organizations, whether previously or hereafter affiliated in any manner, on behalf of Petitioner, Petitioner will request such agency or court to withdraw and dismiss the matter forthwith. 10. Non-Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled nor } the terms of this Agreement shall be construed in any manner as an admission of any liability by any party hereto, or any of its employees, or an affiliated person(s) or entity/ies, including the Respondents' and Real Parties' attorneys, all of whom have consistently taken the position that ( ! they have no liability whatsoever to Petitioner. 11. No Assignment of Claims. Petitioner warrants that it has made no assignment, and will make no assignment, of any claim, chose in action,right of action or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person or entity of,any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses,losses or claims referred to herein. ! p 12. Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and to Real Parties respective heirs,legal representatives,successors and assigns. f 13. Force Majeure. The time period(s) specified herein for performance of the services rendered pursuant to this Agreement by .Real Parties shall be reasonably extended because of any delays due to unforeseeable causes beyond the control and without the fault or i negligence of the Real Parties, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, ,and/or acts of any governmental agency, t 1, � a a P 'tioner's Initials !i u A&W 933431 v.1 � I RECEIVED TIME OCT. 19. 11 :08AM i including the City. { 14. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto, The Parties i specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. The Parties further specifically represent that prior . to sigHng' this Agr'ee'ieiif they have conferred with their counsel to the'exteat desired coriderning the legal effect of this Agreement- 1, 15. Assistance of CounseL The Parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 3 16. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 17. Singular and Plural. Whenever required by the context, as used in this Agreement the singular shall include the plural, and the masculine gender shall include the feminine and the neuter,and the feminine gender shall include the masculine and the neuter. q " 18. No Third Party Beneficiaries. No person or entity shall be deemed to be a third y parry beneficiary hereof,and nothing in this Agreement(either express or implied)is intended to confer upon any person or entity,other than the.Parties hereto, any rights,remedies, obligations or liabilities under or by reason of this Agreement,except as set forth in Paragraph 12,above. 19. Severability. Should any portion, word, clause,phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder,the validity of which shall remain unaffected. 20. Headings. Headings at the beginner of each section of this Agreement are solely i for the convenience of the Parties and are not a substantive part of this Agreement. 21. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared 1 by them, by and through their respective legal counsel,and any uncertainty or ambiguity existing hero-in shall not be interpreted against any bf the Parties, but otherwise shall be interpreted according to the application of the Hiles on interpretation of contracts. 22. Governing )Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. 1 'tioner's Initials A&M1133431 v.1 .6 s RECEIVED TIME OCT. 19, 11:08AM i 3 - 23. Entire Agreement: This Agreement constitutes the entire agreement between the ]Parties who have executed it and supersedes auy and all other agreements, understandings, l negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement. The Patties to this Agreement each acknowledge that no representations, inducements,promises,agreements, or warranties, oral or otherwise,have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement,promise, agreement or wanan% and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, a modifications, waivers, or terminations of this'Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreements 24. Modifications. Any alteration, change, or modification of or to this Agreement shall he made by written instrument executed by each party hereto in order to become effective. 25, Authority To Sign. The persons executing this Agreement on behalf of the j Parties hereto warrant that (i) such party is duly organized and existing, (H) they are duly authorized to execute and deliver this Agreement on behalf of saidparty and to bind that party, including its members, agents and assigns, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. As a further assurance that Petitioner's representatives support the execution of said Agreement, Petitioner agrees to_provide the City with a letter of support for this Agreement signed by as many of its representatives as possible to be provided to counsel for the City no later than seven (7) days before the City Council meeting when the Agreement will be considered for approval by the City j Council. [SIGNATURE PAGE,FOLLOWS] i r' 3 'r 1 1 i II t 1._ Pe ttoner's Initials A&W#33431 v.1 _7 RECEIVED TIME OCT. 19. 11 :08AM `- i 5 i IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and Release of Claims, on the dates set forth below. I i "PETITIONER" Dated: 2004 CrFIMNS FORRESPONSIBLEP G 1 By: t 9 COLIN SPRANG "RESPONDENTS" Dated: 12004 THE CITY OF PALM SPRINGS, a municipal corporation,and the PALM SPRINGS CITY i COUNCIL By: City Manager ATTEST By: i City Clerk s' s ' a "REAL PARTIES" � Dated: fje¢ f� 2004 MCCOMIC CONSOLIDATED By: 1 3 C Dated: .2004 TRANSWESTHOUSING Br•1 .."�.... � 1 s Dated: dCT /� ,2004 PALM SPRINGS VILLAGE 309,'LLC ' RECEIVED TIME OCT. 19. 11:08AM �� Oct. 19. 200411 :02AM No. 7238 P. 10 1 i a APPROVED AS TO FORM: :Dated: �2004 LAW O CES OF 13ABAK NAFICY � o s By: j BABAK NAFICY,ESQ. Attomey for Petitioner Dated: 2004 ALESHIRE&WYNDER,LLP By_ DAVID ALESHME,ESQ. — - — 1 Qty Attorney Dated: 2004 By' PAUL OB' �OYL$s ES Counsel for Real Parties� r 1 t 9 3 J I 1+{ i .._�!j 9 l - -9- 3 RECEIVED TIME OCT. 19. 11 :08AM 10/14/2404 15:25 FAX 349 223 1180 ALESHTRE & WYNDER, t,t,p @ 004/004 on* l :�UU4- lZt2>3F'M LHW OFFICI- OF l3FiBMK NF]Fjt1 F3C1f7-b93 ^004G p- 4 P4M Sgr1np city C"luncil c/o Anthony R.Taylor, Esq, AI.E HD?E 7 W YNDI:, t, L LX' 11 891 Von ,KAxm;m Ave lr►vi ft, CA 92612 RZ'F Citizens for ItmporL11ble]tanning v.City of-pal rx Spr ngsy of al. Lotter In Ctanng11abco with 125 of frrx►posed Settlement Agreement. TO P111m Spring,15 Ciry Council, Azm uienefter i being provided to yeti PursMAM 10 Pam ph 25 of tlae proposed Settlement A +%imen[in the vt,re,ferenced case, BY sigW119 Onto 0113 Ivttex tv�,mom Ci#azerRg for 1�Cs`p0nsilal+<Ylatit>ing,intend to shgyy our su ' b of Pclitivaer, have•jointly*ulhorized John COIjn 5 � pprart for the gropcy��� Agz�ernenL 11V� be�11: i xi>ng to Intel into the prnFosed Agre1 elit ors our callecGivc Datsw: J2 r-}2..-V ` r By:- Date, II Date: /0--/(5 - Y Date: f��1!�© f r� l J By: Daw: 73y: I k\o 10!14/20C4 MITI 13.31 ITT/R1 NO soani RMAA Jnn.21 , 2004 2'45PM NO.Ms P. 2/20 F__' ._. 8g� 8207 CITY OF PATX SPRINGS �+ 1 BABAKNe�R&(State.l3ar No. 177709) D ' law Office�of Babak Naficy e 2 1204 NiiPomo shete OF 4N M JRURNK '•San Luis Obispo,CA 93401 �y ; 3 T"hone: (805)50-M -a 16 am Co JUN � a 2004 � Facsimile: (805)593-094fr hCC > 4 5 Aft6mcys forPetitionen;7Plainfiffs: °'�► ct A.M.M M REZ $' CfMENS FOR RESPONSIBLE PLANNING 8 SUPERIOR COURT OF THE STATE OF CAL1B6MiU r, 9 FOR THE COUNTY OF RIVERSSIDE 10 F `s 1'1. C'.f MENS FOR RESPONSIBLE CASE NO!: 437 r PLANNING 12 Plaintiff/Pedtioncr, PETITION FOU PE'REMITORY WRIT OF t._ ,.713 'vs. MANDATE AND CO1VD.'LAMT FOR DECLARATORY AND FOUNCTIVE 14 CITY OF PALM'SPRINGS, .PALM SPRINGS REMIEF Crff COUNCIL,and DOES 1 25,Inclusive, 15 C.C.P. §§108$, 1086, 1094.5&s§10215;Pub. Res.Code§§21000 et sett.,GoM.Code j 16 Defendants/Respondents. §66473.7 3 17 CATHTON HOLDINGS,WC,,MCCOMIC ; 18 CONSOLIDATED,AND TRANSWP.ST HOUSING,and DOES 26-50.Inclusive, 19 3 Real Partids in Interest 20 21 Petitioner hereby alleges as follows: 22 1, INTRODUC IO1N 23 24 1. Citizens (�for Responsible Planning(" Y,or Petitioner)petitions tbi Court for a Z5 .writ of mandate under Code of Civil Procedure§10945 and§1085,directed to Respondents,City of r ?6 Pat*Springs and Palm.Springs City C'ounciL;and Does 1-25,Inclusive, and Cathton Holdings,Inc., 27 MCODMiC Consolidated, and TranswestHousing,Real Patties in Interest; Petidonet seeks an Order 28 RECEIVED TIME`JUN_21. .4:07PM Jun•!l . 2U04 2:45NM NO 6528 P • 3/2U oeJ21,mow. .+•-+ F� 323 8207 CITY of PALM SFRINGS -� — - �Y f.�.• u 1.•�. �Diu � L• n i 1 -vacating Respondents' approval'and certification of a Mitigated Mptive Declaration('Mm"),that 1 ? was prepared by the City in conjunction with the approval of the project mfmdd td as Palm Springs 9 Village,whiob included five General Plan Amu ntlrne Tw.a planed development fttdcf and Tentative i 4 'tract Wp for the proposed subdivision, i 6 2 Petitioner dontends that the City violated the California Environmental Quality Act 7 C CEQA")(Public Resources Code§21000 et seq.)by faring to prepare an adequate Environmental i 8 impact Report(-I w), 9 3. Petitioner also contends that the City's approval of the project violated the City General s 10 Plan's open'space set aside r6qulremeut. 11 4. Yoally,Petiioner contends thatprojecx,as approved,violated GoyeramentCode 12 t $66473,7 by approving the taatative tract map without requiring the project applicant to furnish i 1 i 14 sufficient proof to show that sufficient water supply exists for the project i 15 II. T13E PARTIES 16 S. CFRP is a group of California and Palm Springs residents dedicated to the promotion 17 of responsible land use planning and environmental protection. Some members of CFRP fadde in j 18 - Palm Springs in the vicinity of the project, CFRP is dedicated to education of the public about the 19 environment,planning and h4astructute issues,and to take action to protect 20 the environment and to 21 ensure legal and responsible land use planning and decision-malting when necessary„ 'CARP brings a 22 this action on its own beW,for its members,and in the public interest. 23 6. Respondent and Defendant,CITY OF PALM SPRINGS ("City")is a local •24 governmental agency and subdivision,of the State of California charged with" authority to regulate and j 2S adnvnister land use and development within its territory,but Onlym - �compIianov with the duly adopted 7 provisions of its zoning ordinances;General Plan,and all applicable provisions of state law,including t,?27 ! the California Buviromnentall Quality.Act,the Planning and Zoning law,the Government Code and -=3 28 RECEIVED TIME JUN. 21. 4:07PM 3 t un • . 2:45PM No•6533 P. 4/20 j 06/2rJ21 2004 F �2a 9207 'CITY OF PAIrd SFRIN65 - � ,.. 13A. 4 .. q. .._. � .- - - - .. :�• BSI .•... �-�.� .. -�.._ __ .-._ -. .. { 1 Mite Sabdivision Map Art, j ? 7• Resgoitdent and.Dcfertdant CTCX COUNCIL O);C1TY OP PALM SPRINGS ("•Council"br"City Council"j is the leglsladve body and highest administrative body of the,City. The el V City Council has the final authority to approve a plauuted development dbtriet,Tentative Tract Map 5 stud General Plan Amendments, and is responsible for compliance with COQA and the cadification of 6 - 3 ? the MNl7 and the ultimate decision to approve this project. The City Council and die City hereafter 8 stall be,collectively refenred to as the"City". 9 8. Petitioner is informed aad believes that Catliton Holdings,-Inc;blcComic to Consolidated,and Transwest Housing are Real Patties in Interest Petitioners will amend the Petition 11` as required to specifically identify each such person as a real parry in interest as the idendty,interest z2 - and capacity of such party,if aayc becomes known. 14 III. PROCMURAL ALLEl4A1IONS 15 - 9, Petitioner has ped-ormed any and all conditions precedent to fUng the instant action 16 and has exhausted any and all administrative remedies to the extent required by law,because inter 17 444 its members have submitted written comments oa the project and its environmental,review at � i 18 1 every step of the administrative review process. I 19 a 10. P, Boner has requested that the City not approve this project and not certify the SIR. 20 ; 21 '1lie1'efore, any further attempts to pursue adminis fi remedies would be futile. 22 11, Petitioner has complied with the requirements of Public Resources Code section ., q f 23 21167.5 by mailing a written notice of the commencement of this action to Respondent prior to filing I 24 this petition and complaint.A true and correct copy of the written notice and proof of service therefore 25 is attached hereto iis Exhibit w. i 12. Petitioners have complied with the requirements of Public Resources Code section 27 21161.7 and Code of Cavil Procedure section 388 by mailing a copy of the Pedtion/Coinphdat to[he - 28 RECEIVED TIME MA I. 4:07PM eun zi • zuu4 z:OFM No 6538 P, 5/20 F: 323 8207 CITY OF PAL![ SPRINGS J 1 state Attorney General. A true and correct 2 copy of the Proof of Service bf the Petition on theAttorney - - a -GeeeraI is anathed'hereto as E46it`B". - 9 13. Petitioner has no p1ain,,speedy pr adequate remedy in the ordinary course of law unless 4 ibis Court grants the requested writ of mandate to require Respondents to comply with their duties and 3 6 :set aside the approval of the project until they have prepared a legally sufficient EIR. Id the absence 7 of such remedies,Respondent's approvals will retrain in effect in violation of CEQA. 8 14, If Res ridents arc not en olped from a vin the po ] PPS & and from undertaking acts 9 in furtherance thesebf,Petitioner Will suffermrepsrable harts from which there is no adequate remedy j 10 at law in that the project area and surmauding areas would be irrevocably altered and significant g y .11 adverse impacts on the environment would occur. Petitioner and the general public have also'been 1 { )13 harmod by Respondents' failure to-prepare An adequate Environmental Impact Report that accurately i 14 and fully informs interested persons of the projeces impacts. 15 15. In pursuing this action,which involves enforcement of important rights ail'rAn&r the ' s 16 public interest,Petitioner will confer a substantial benefit on the general public and citizens of Palm i 17 Springs and Riverside County and the State of California, and therefore will be entitled to attorneys' 18 fees and costs pursuant to,inner aria,Code of Civil procedure§1021.5. 19 16. Petitioner Brings this action in part pursuant to Public Resources Code§21168.5 and 20 21 Code of Civil Procedure§1085 or§10945,which mgaire that an agency's approval of a project be set 3 i 3 22 &side if the agency has prejudicially abused its discretion. Prejudicial abuse of discretion occurs either 23 where an agency has failed to proceed in a manner required by law or where its determination or r- 24 decision is not supported by substantial evidence. Respondents liave prejudicially abused their " 25 discretion because Respondents have failed to proceed according to the law, and their decision is not ` 26 i n.. supported by substantial evidence. -- 27 r 29 RECEIVED TIME JUN. 21, 4:07PM J . 2004 2'46PM No•6538 P•46/2D _tl8121.un •21 F:----- a2� 8207---- -- CITY OF YAT3[ SPRINGS— i 4 - 1 1 HL S TEMENT OF PACCS 2 17_ The" - `prcject' at issue is fl proposod planned development distiict with 1,236residential ' a 3 baits on'309-acres, an 18-hole 90 acre golf course and related.developments, a 7.5'acre park;site, and-a I . 1 4 . 1 tentative tract map dividing the site into 782 parcels, The City also approved five General-Plan 5 6 Amendments resulting in significant changes to tboLCity's Circulation Element,deletion of two school 7 sites and relocation of a pails i $ 18. the aniendrdeats to the General Plan Circulation Element include deletion of the 9 ifnunview/Avenida Caballeros extension and the designation of Surnisa ParksYay as a Special 10 Secondary Thoioughfare,Street Section. 11 1 19. The City granted Are project applicants' request for numerous depatures from the 12 smndards set forth in the Zoning Ordinance, These include minimum lot area of 4,400 square feet 14 ('st'j,instead of 10,000 sf minimum lot dimension of 40'xl00'instead of 100x100,and side yard i 15 sex back of 5'instead of 10' and front yard set-back of 5 instead of 25'. Although the General Plan 16 pnvvides that developments within Planned Development Districts("PDD')maybe allowed"certain 17 desirable departures from the strict provisions of the specific zone classifications,"there is no { 18 substantial evidence in the record that transfer of densities and the reduced lot sines and yard set backs 19 are"desirable"within the meaning of the General Plan. Moreover,the City failed to make a finding 20 21 that(hest"departures"are"desirable," 22 20. The MR for the City's General Plan concluded that the impact from projects such as f 23 this on air and water resources is unavoidable and cumulatively significant Accordingly,the General 24 plan SIR adopted Statements of over-riding consideration for these impacts. The 1S/MND r • aclatowledges that these impacts are cumulatively significant,but on the basis of the statements of 26 aver-riding consideration that.were adopted in conneWon with the ceRiftcadon of the Gencrai Plan 27 l?I1 t 28 , erroneously concludes that These impacts maybe considere d less than significant with aspect tei RECEIVED TIME JUN, 21. 4:07PM No•6538 P- 7/20 —08/21J[UiI•LI • LUU4 Y 4bYM CITY OF PAIX SPRINGS ` 4Y:u4 r Fro rvo �23�8207..__ ._ • - 3 1 this project. 3 2 21. The Initial Scudy( sari'nd]�Rw for the pmjeer including the:supporting documents, 3 fail ad el to consider and anal the eet's potential` i equsY 1' yze proj po impact on rare or sensitive species or 4 their range. These include sand treader cricket and Jernsalem cricket. Moreover,the administrative 5 6 record demonstrates that the project could have agotentiaily.sigaifieaut unpack on the Palm Springs 7 ground sgairrel,Patin Spiingi pocket mouse,and Loggerhead shrike(all considered sensitive under 1 r 8 both federal and state authoritirs),all of whom wexe found on the site. 9• 22, 71a'City relics on the adoption of the Coachella Valley lriinge-toad Liiazd("C 4*lTL") 1 -10 habitat Conservation Plan(HCP'J to conetude thaf the proposed project will not have an impact pn II the CVFTL. Such reliance is misplaced however,because the•CVFTL HC'is a federal program 12 ,113 designed to satisfy the requirements of the federal Endangered Species Act. Buit the threshold of 14 significance of impaot(s)to a sensitive species(such as the CVFfL)is much lower under CEQA than i 15 The federal Endangered Species.A,ct. Thus,this project will have a potentially sign ficantzesidual 16 impact on CV$TL despite the payment of$6OO per acre as required by the HCP. The record supports . s 17 a ihir argud=t that the payment of$600 per acre fails to reduce the•impaet on CVFfL to a level that I$ is leas than significant. 19 - 23. The ISASM fails ro adequately note the project's potential impact on traffic and 20 21 circulation. During the administradvO process,numerous commentators reslifned that theproposed 22 prc)ect would likely result in traffic congestion and significant adverse alteration of traffic patterns in 23 the vicinity of the project and elsewhere in the City. 'The ISlMND contains an inadequate analysis of p -P' � 9 24 the projects potential impacts on traffic,yet it admits that the"City's initiat4d.General Plan 1 25 Amendment was not analyzed bytbe traffic study for this Project_" Substantial evidence in the record r--J lk supports a fair argument that the project may have a significant impaz t on traffic and eirctilation. 27 24. The proposed project is subject to and thrust be consistent with, General PIan policies, 28 , RECEIVED TIME JUN, 21. 4:07PM Na•6538 P•_8/20 OBlzlJ In •LI ZWF '110VM322 820 .CITY of Pepin SPRINGS . i r 1 :including policy 3.5.4 which requires that"a minimum`of.65%of the lot area st all be maintained as ? on-site openspacelrecreational area." Tbep[ojec4 as.proposed,however,violates policy 35.4 ' 3 because clearly designated open$pact areas within the project site amount io no more than 97.16 4 acres,far less than the required 202 acres of open space required by the General Plan. 5 1 6 25. MoreaveA aithougb the Municipal Code§9.64.090 provides for maintenance of all 7 open space,the project as proposed does notregnuTe maintenance of open space areas within the 8 project, 1 9 26. The City approved-the tentative map for the project without imposing a condition that 10 ••dw applicants provide proof of adequate water supply for the project. _ 11 CEQA r+'R_AA NWORK ANb't`HE"R UR.ARM H2M S!AN DARD 12 27. CEQA.edntalus a'strong presumption in favor of requiring preparsttion,of an RM:even i 14 if the lead agency finds that a project may cause an impact,an EM must be prepared. Pub.Lies. C. IS §2110o,21151;CEQA Guidelines §15064(a)(1),(1)(1). Thus,if substantial evidence in the record 16 supports a"Fair argument"'that the project may cause a sigtfficant impact on the euviromnent,the 17 agenccy must prepare an EIR even if oilier significant evidence in the record supports the conclusion i i8 That the project will not cause a signife nt impact No.91 v. City of Los A.n¢eles (1974) 13 Cad 69; 19 ' see also Quail Botanical Gardens Foanda6on v.MY of Encinitas (1994)29 Cal.AppAth 1597, 20 21 Praetiioe under CEUA §6.29, Kosdm and 21schke(2000). y 22 28. The`Tarr argument"standard is very diff:reut from the oMer standards public agencies P ? 29 are normally held to in making their administrative decisions, TJnder die"fair argument"standard, 24 agonies may not compare or weigh the evidence in order to decide which side has the better 25 argument, loather,the agency's task is limited to the determination of whether"substantial evidence" exists to support a`lair argument"thst environmental impacts may occur. Friends of`B"St, v.Ci21 = ,i i of Ire ward,sumi, 106 Cal,App.3d at f00Z. CEQA allows a public agency to dispense with an ElR 28 j RECEIVED TIME .JUN. 21• 4:07PM Jun•21 . 2004 2:46PM No•6538 Pa9/20 CI OF P9LM SPRINGS d 0a/2licvus i�:�� Fna ,ou S25 82a7A�^. . --- , a I 1 and a"ne alive declaration"cml 'when care to'bd no noss�tiPrity That the I g y aPP pro) will 2 a'cn4y causesignificant environmental impacts: Pub,Res.Coda§21090(c),CEQA Guidelines§§ 15070-15075, ¢15083 (emphasis a n - 1 mp dried): A negative declaration is essentially a'aertificarion that the ; 4 S ,project will have no significant environmental effects. Citizens of Lake Murray Association v. San 6 fteao City Council (1982) 129 Csl.App.3d 436,440. 5 7 FIRST CAUSE OF ACTION g (Violation ofCBQA,Failure toPwpare Environmental Impact Report) 9 29. Petitioner r4ers to and incorporate's heroin by this reference,pazagcaphs 1^28, 10 inclusive of this Petition as though fully set forth herein. 30. M evidence and documents contaiged in the administrative record supports-'• 12 _,�13 Petitioner's"fair argument"that the City was required to prepare an Elit io adequately analyze the lA projea s potential impact on the eavirotmrent, 1S 31. Although the IS/MND identifies potential impact to some sensitive species,it fails to 16 adequately analyze this impact or to propose adequate mitigations measures to reduce these impacts to } 17 a less shah sigoificant level. In the case of other species,thdISIMND fails to adequately analyze die 18 potential direct and indirect impacts: The record supports Petitioner's fair argument that the City was 19 required to prepare an E1R to adequately review the project's potential impacts on sensitive species, 20 including direct,indirect and cumuWve impacts,and to consider appropriate feasible alternatives and 21 22 mitigation measures to reduce these impacts to less than significant. 23- 32, As the Palm Springs Geneaai Plan HR admits, the implementation of this project will 24 have a cumulatively significant impact on air quality and watafresources, The IS/IvIT1D does act 15 dispute this fact,but asserts that these impacts nevertheless should be considered less than significant -9 because the General Plan adopted statements of over-riding consideradon'with respect to the i 27 1=•-��1 unavoidable impacts to air and water. The City's position in rbds regard defies logic and violates 28 ! RECEIVED TIME JUN. 21• 4A M No•6538 P . 10/20 OB/27J0�•LI • LU04p L:46PM323 8207 CITY OF PALM SPRINGS - 3 1.7 ' S 1 I QSQA, Because ibe pmject's conlribntion4o cumulative impacts on air and water is potentially 3 2 significant,the City was required'to pr4pare an EM to consider and analyze tbcsc linpaets. 3 33. .likewise,the Cl uired to analyze the City was req project'•e potential impacts on trsiiic aid 1 4 1 ciiciiladoq in an EIR because the record supports Petiticnex's fair argameot that these impacts are } 6 potentially significant _ 3 7 34. Finally,pursuant to CEQA,the City was required to a*owledge and discuss the 8 pmjeWs inconsistcneies with the General Plan,the Zoning Ordinance,and the Municipal Code in an 5 9 EIR. ;10 1tiTfiEREFOM PETITIONERS pray for judgment against the City,as set forth hereinbelow. 12 SECOND CAUSE OF ACTION � 1 ,}3 (Violations of State Laws;General Plan Policies and Mmricipal,Code.) 14 35. Petitioner refers to and incorporates heroin by this reference paragraphs 1-34,inclusive, of this Petition as though£ally set fords herein. 16 i 47 36. The City violated Government Code §66473.7 by failing to requite Real Parties to IS show sufficient proof of avatffability of adequate water supply for the projeeo i 19. 37. The General Plan allows only"certain desirable departures fmm the strici provisions of 20 the specific zone classifications"within PDDS.The City'violated this General Plbn policy by allowing 21 deviations from the zoning requirements within the project JPDD,-including smaller lot sizes, reduced 22 set-backs, and transfer of density, which are not desirable. The City approved these violations of the 24 zoning requirements without maldng a finding that such departures are "desirable," Moreover, 25 Petitioner contends that even if the City ware to make such a Ending,its findings would not have been t•_ supported by the record and would have constituted an abuse of discretion. T i 27 38. General. Plan Policy 35.3 states that "a minimum of 65% of the lot areas [in a Low 28 17ensky Davekm,.,P"ti sp.,n 1_ u..:_`__ as on-site open spaceliecreational area," The Citv's RECEIVED TIME JUN, 21• 4:OlPt No•6639 P • I1/20 [ 08121JUf •CI • CUU42 C:4brM 320 82o7_u __ CITY OF PALM SPRINGS �� ^ 4 I t ; 1 approval of the project violated thus policy because the amount of open spac recreational ama that 2: AA be inAAaiged is far less than the 65%of the required projept's overa11309 acres. 3 39. ` 41te 6 violated Municipal Code t9.64.090 which ry 'pat ,� , required the City to impose a. 4 j condition that would provide for maintenance of all open space within the project. I 5 i 6 'WHEREFORE,P.EI7;T ONERS pray for 7 8 (1)the issuance of an alternative and"peremptory writ of mandate commanding 1 Npondents to set aside,invalidate and void the approval of the project and 9 30 the certification of the ISMD therefor; 11 (2)an Order directing Respondents to prepare an adequate EIIt for the project, (3) 12 declaratory judgment, stating that the actions of Respondents in approving the project, the PAA and certifying the LS/MND were in violation of CEQA, Government Code 66473.7, and.Palm Springs General Plan and Municipal 1.4 Code; 16 (4)a temporary restraining order, proliminary injunction, and permanent injunction prohibiting any actions by Respondents and Real Parties pursp4t 17 18 to the approval of the project aOd certification of the EIR until Respondents have fully complied with the California .Environmental Quality Act and all ! j 19 other applicable laws and requirements; s 20 ; (5)For an award of casts and attorneys' fees; and 21 22 (6)For an award of such other and further relief•as the Court deems just and 23' Proper. � � I 24 ='i bated.June 9,2004 LAW OFFICB OF BAEAK NANCY 25 27 Babak Naficy, Attorney for Petitioner s 28 RECEIVED TIME JUN. 21, 4:07PM 1 Jun•11 • [uu4 z:41rM No •6528 P . 12/20 0e/211tvv4 14:48 F06 tov 323 8207, CITY OF PALM SPRINGS v . 1 �Terification f 2 1 have resid the foregoing Petition for Writ of•Mandate and Complaint for Declaratory and 3 3 hgjunctive Relief and know its contents. . I am an officer of the Plaintiff/Petitiongr-in this 4. 5 section. The matters stated therein are true of my lmowledge except as to those matters which 1 6 are stated on information and belief; and as to those matters those matters, Ibelieve them to be 7 true. Executed on June %G , 2004, in Palm Spring, California, in the County of Riverside. I i 8 declare under the penalty of perjury under the laws of the state of Califoiia that the foregoing 9 10 it;true and cbrrect. 3 11 -/ 12 Signed: �9 Dated: — i 14 IS 16 37 i 18 3 19 20 3 21 22 # 23 24 5, i 25 ,26 M 27 28 I RECEIVED TIME- JUN. 21, 4:07PM No.6538 P ZUU4 z;WM 23 8207 ciTy OF PALM SPRINGS. Jana 9,1004 Ma JL&Mao Palm Springs city council do City Clerk 3200 E Tdqdtz Canyon Way, Palm Springs,CA 92262 RE., Palm ftring r1liffe Honorable Council Modibers, Please take notice that Otizens for Responsible Planning CMPintends to commence nuPrnto reel legal action to set aside the Ckys approval of the Palm Springs VilWeSubdivision, General Plan Amendments and Tentative TractMap,.as well the certification of a Scn UA CCWO"a 93 OWspo401 NtIpted Negative I)cdaration(WD-)therefor. CM contends that the City violated MQA by failing' to prepare an Environmental Impact Report(BIR)because the administrative record,including the.General Plan HIR and the Section 14 EK support a"fair argwmeae'diat the project will lave potentially significant impacts on biological resources(sensitive species),air quality, water supplies, and traffic. CMP also contends rhdt the City saptpoval of the proposed prG*jW4 also violated applicable General;flan Policies and zoning restrictions regarding such issues as mininitim set-backs,lot sizes,building bgigbts,and the size of the Open Space. finally,CFRP contends the Citys approval violated Gov, Code§66473.7 which required the City not to approve the Tentative Map before receiving sufficient proof that adequate water supplies exist for the project. This notice is provided pursuant to Public Resources Codo 21167.5. Sincerely, L babak Naficy AttorfieY for Petitioner, cc: Cathton Holdings,Inc. C-3 MOCaUlk Consolidated TranswextHousing RECEIVED TIME JUN- 21. 4AM an•u �uu4 Z•4irm No.6538 P. 14/20 u OB/21 11 �L + IUU Fm jr 323 8207 CI7 OF FAIR SPRINGS • i]] PROOF OF SERVICE 3 li am employed In the-County of San Luis Obispo,State of California I am oven the age of 18 and not a party to this actiom My business address is 1204 Nipoma Street, San Luis Obispo, ' CA 93401 On June 9,20041 served the foregoing: h NOTICE OF IMPENDING:LAWSUIT cc the interested patties below as follows_ t City of Palm Springs McCoinic Consolidated j Palm Springs City Councii 9968 Hibert Street . ctdCity Clerk _ San.Diego,CA 92131 j 3200 E.Tahquitz Canyon Way Palm Springs,CA 92262 Cathton Investments,Inc. Transwest Housing,Inc. c/o Schlecht,Shevlin&Schoenberger 9968 Mbert Street 901 E.TahquiM Suite 190 San Diego,CA 92131 Palm Springs,CA 92263 j IJi:1 (MAIL) I placed the envelope for collection and mailing on the date shown above, at this office,in Sap Luis.Obispo,California,following out ordinary business practices. I am readily familiar with this o$'ieds pmedbe of collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing,it is deposited is the orOinmy course of business with the U.S.Postal Service in a sealed envelope ; with postagefully prepaid, I / (BY PERSONAL SERVICE) I delivered such envelope byhand to offices of 1 addles *s). 1 I X I (STATE) I declare under penalty o£pmjury under the laws of the State of California that the above is true and correct, Exxuted on June 9,2004 at San Luis Obispo, California. -- ] `Hornaday .�y ` 1 RECEIVED TIME JUN. 21. 4:07PM I 1 1 : I re�.n ,.: a� .,�,-.'r"`��,., '�'' JJ?„_.'.4`.T2'z•`, "St'+•`:r., .L>L�+.,'--1.-'��..•,. r"F,y�9' -rl' • c'. ..:iT^:_9S'Jk-'-.-'.a`.i .k"�L.- by� .cp.. 2. .'cf'"^r�:-nNFex ii •�y4,.` . �`•__ . .L.- ._�cn'`t r_•'+�brol'a iy:'a_" �'�fu'J�r� - d.t t+" ✓:-_L�^" `tMT'4+"•'�.��:? '\�,l�h, j5 ��F."".i� _ JIiY,'.It)'-;f .-Y•^.lsutpw` ';.. �-rr,uIM rt'Li.inn:._Jn_ yr/�. v • ,• �l. 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Yu try duu •u • tauµ c,4�rm NO-Wu V. 16/N j 00/2] F S2S 8207 CITY OF PALK SPRINGS ..,• _ = _. - ._ fi.iil' <.. ryZit s._.•�.r:--.-, rs-r..".:.- 1 t i - 1 • 7 PRftQF OF SERVICE 1 am employed it the County of San Luis Obispo,State of California I am over the age of 18 and not apaity to this action, My business`address,is 1204 Nip =Street,San Luis Obispo, (:A 93401 On June 9,2004.1 served the foregoing; P`ETrPION FOR WRIT Off'MANDATE ANA COMPLAINT FOR INJIDTC W RELIEF(PALM SPRINGS IYULAGE) an the interested parties below.as follows: BillLocltyex;Esq: - CaBorniaDepartmentof usticeJ 11601 Street Sacramento,CA 95814 , /X/. (MAIL) . I:placed the envelope for collection and mailing on the date shown above, j at this office,in San Luis Obispb,Caiifomla,following our ordinary business practices, I am zeadily familiar with this ofcc's practice o£eollec6g and processing correspondence for mculing. On the same day that the correspondence is placed•for collection and mailing;it-is i deposited in the ordinary course of business with the U.S.Postal Service in a sealed envelope with postage Billy Prepaid. (BY PERSONAL SERVICE) I delivered such envelope by hand to offices of acklressce(s). 1 X/ (STATE) I declare under penalty of p pe*vey'under the laws of the State of California i that the above is true and correct. 1 Executed on June 9;2004 at San Luis Obispo, California_ JrelflVyr Homaday �� 1 Cr— RECEIVED TIME JUN, 21, 4:07PM OB/21 un •[i _ [uuµF [•4yrm323 .6207 CITY OF P.UX SPRINGs No.fi538 N•_l1/20 j i SUPER(ndio, RT OF CALIFOBNIA, COtN'Py OF RIVERSIDE io .Court [ 7 Blythe Court Oasis St. 265 N. Broadway CA 92201 Blythe, Ca 92225 aL�rrrrzFF: VS CASE NO: INC 043700 i . DEFh'UTDANT: - - 1 TO: i a i g NOTICE AND ORDER OF ASSIGNMENT TO DEPARTMENT FOR ALL PURPOSES The above entitled case has been ASSIGNED to the HONORABLE JUDGE Christopher J. Sheldon. in Department 2H FOR.ALL PURPOSES. +, Any challenge pursuant to Section 170.6 of the Civil Code of Procedure shall be made within twenty (20) days (15 days pursuant to 68616 (I) GC plus 5 days pursuant to 1013 (a) CCP)' from the date of this notice of assignment, or it the party has not yet appeared, then within fifteen (15) days after the party's first appearance. ` All matters, whether currently set for hearing or not, including but not limited to Fast: 'Track hearings, Law & Motion, Settlement Conferences and•Trials are hereby transferred to, and shall be heard by the assigned Judge until Further order of the Count. Y T E COMPLAINING PARTY IS ORDERED TO SERVE A COPY OF THIS NOTICE ON ALL NEW PARTIES HS OR SHE SERVES AFTER THE DATE 3 ON THIS NOTICE. i 06/1(1/04 HONORABLE DOUGLASS P. MILLER, PRESIDING JUDGE. I I, Clerk of the Superior Court of the State of Cali£oraia,, County of Riverside, certify I am not a party to the above action, that on this date, I served' a copy of the foregoing NOTICE by @,__F depositing said copy in a sealed envelope with prepaid postage, in the mail at Indio California, addressed as indicated. E }� Dated.; 06/10/04 By A-M.RAMIREZ 1 -j ALICIA RAMIREZ, Deputy Clerk NTH L. i RECEIVED TIME JUN. 21. 4:07PM aue•ci . 4uu4 4•47rm No.6538 P• 18/20 06/21/2004 14:48 FA1 70U 327 8207 CITY OF PALM SPRINGS S r -1 BABAK NARCY"(s"tate Bar No. 177709) �• Q IAA Office of$abakNaficy SIIP Catirrtl ztf�RtIA Street San Lois ispo,CA 93401 3 Telephone: (805)593-©926 AN 1`0 2004' Facsimile: (805)593-0946 4 A.M. FA1fRE S Attonleyu for Pedtian�slPlaintiEFs CITIZENS FOR RESPONSIEZFi PG 6 } 7 3 e 8 SUPERIOR COURT OF THE STATE OF CALDORM j 9 FOR THE COUNTY OF RIVER,SI DE 10 III CITEMNSFORRESPONSIBLE CASENO, kr�r' 0 4 3 7 0 0 •' PLANNING j j 12 Plaintiff/Isetitionm, PETMONER'S REQUEST FOR 13 vs. PREPARATION OF ADmDasTRATTVE 14 Cfl'Y OF PALM SPRINGS, PALM SPRI VG5 RECORD CITY COUNCtI.,and DOES 1.-25,Inclusive, ° 15 , DefendanWRespondents. a 16 17 CATA.TON HOLDINGS,INC,MCCOMIC CONSOLIDATED,AND TR.4NSWEST j . 18 HOUSING,and DOES 26-50,Inclusive, 19 heal Par4es in Interest s 20 TO ALL PARTIES AND THEIR ATTORNEY ORRECORD: I 21 Petitioner hereby requests that the•City of Palm SPriu8s Prepare the Administrative Record for 22 the above referenced case. ' 3 23 �1 Dated:June 10,2004 LAW OFFICE OF 13ABAK NA14CY . 24 25 26 Ba -.1 hak Naficy, 27 Amemey for Petitioner z 28 -'RECEIVED TIME—JUN. 21• — 4:07P;" Na•6538 P• 19/20 06/27JUn•CI • LUU4t L;OPM 323 8207 CITY OP PALM SPRINGS — 9 i I BARAKNAFiCY(State Bar-No. 177709) Law Office of BabskNaficyQRNIA 2 1204 Npomo Street - RP� San Luis Obispo,CA 93401 3• Telephone: (805)593-0926 JUM ;F am,7e: (805)593-0946 4 S 5 AttomeySforPetitJOneis/Plainttffs: A.M. RAMIE IMIMNS FOR RESPONSIBLE PLANNING 6 " f 7 8 SIIPERIO1i COURT OF TIRE STATE OF CALIFoRwA 1 9 FOR TB E COUNTY OF RIVERS3DE 11 CrrZMgS FOR RESPONSIBLE CASE NO. I N C 043 700 PLANNING 12 Plaintiff/Petitioncr, CERTIFICATE OF COUNSEL 14 C1TY OF PALM SPRINGS, PRIM SPRINGS CITY COUNCIL,and DOES 1-25,1nciusive, ' 15 9 Defendants/Respondents. 16 i , 17 GWHTON HOLDINGS,INC.,hiCCONIIC CONSOLIDATED,AND 7RANSWEST I 18 HOUSING,and DOES 2640,Inclusive, ; 19 heal Patties in Interest 20 Pursuant to Local Rule 1.0015,Counsel for Petitioner,QTIZENS FOR RESPONSIBLE t 21 PLANNING,herebycertifies that this action is properly filed and should be tried in the Indio Branch 22 Of the Desert Division of the Riverside Superior Court because the subject matter of the action is 23 24 located within the City of Palm Springs, t Darted:June 10,2004 LAW C3EF M OF BABAK AFICY -i6 ; 27 BabakNaficy, I Attorney for Petitioner 28 'i RECEIVED TIME JUN. 21. 4:07PM �un•u • Cuu4 1:0urm No•6538 OB/21���...-,.�,�„ 323 8207 —CITY OF ]PALM SPRINGS P•— —_ ra2 0/20..0/ CM-010 i 0Rrera6YeftWffWRjoW ro,'u�lf/Nmjr miare�;WWa .. suamWrrsaaar EabakWaficy(SBN IT/709) 7204)4;po mo Elmd 83111LuisObiT%o CA93401 i i�m" 305-593-M . r-Ncuo-s05-593-9946 'A++onrsfmap�rdr•Plaintilfil/Petidonas ail/4aanlmrrreFCAta'CWa4Wurtrlac d51 o- arr>ffreoolar 46-200 Oasis Sv6d ' tu"mAbecem 4.6-200 Oasis Scut onumamae Lido,CA922QI exwccuUe Indio CAf�lart►7E; Cit3=forReVofisible Planning v.C)Ly of Palm Springs et al 6M CASE COVER SH; � ti(aise 0�91faUon CU�nuueet Unn!dlet( Limited (Amount (Afrtatart » 1:alarier © Joinder ,3- A00) two ices) Fladwlth first appearance by do(endard '"'� (Cal.Rrdea"of Court,nYe loll) DWr3 i A0 We(5)flarmbolowmust he pomplofed(ass tnshmdorrs an page0. 1 CI;*Ono DOX lewforth8CMWp INA beat deac&esflRmse: j AiaMTmt Contract Pmvisfonatly comteex Clrfi tmgaaan Aum(M Q Breach of mmm*w m❑ty(OQ (CaL Rulas of courr,rules 1600-1612) C7 On3aared mowdst(a0) Cj caac5on:(09) O Amhlu,Vl}aifa oag4rmn(U3) - 011hvPUPD7WD•(Pemonaf"ury/FrgxrO' Q lnsumnevowa 1e atmaBan"DrI r4DRUM)Tort ( ) - Q Qundmolion detect(10) i C� Agbaraw(0q � Wwny «""ln o `wu C: Praa>ctuabW(24) a0alwn(2B) Q lAedxal C7 EmWOMArtm(14) rse Q Umuala mWam rdclort(30) , flmlpracace(45, CO,derm,eson(140 Q krsfranra mvarege a4'vne,erienghomlite 17 Omer PUPOAVD(23J above[sled Ncw-PYPUAYD(OMM)Tort Q WrongM ovlerion f,33) VOW(41) Urrnrleaorrelh complex use i © oAterreatpropmtym C� llrraueasnaNrmtalr6rfsinessp me Uninal ltldalcer FrllureemmtorJudgmern C7 cmlvft(08) C7 F Rofament d)udgment(26) 0 Cofrrrierdai(31) (;] FrAud a0art(73) MlecMlgneorrs grfi l:omplafnt Pr+o4 I C7 (ta) O Fiaeidenfml(92) Q am(27) ! C] rliafioewill prcpedy(10) I�q W(a�w) Q OlhareompYinrt(noF.apadlla?ai+oveJ(4x) C7 Professional neg%ende(m) , MlaceOumotmChOpaltlon C] Other rmn.PapD)yYp 101f(35) Q Ascal fodduae(all) Q Partrrerghlp and eafporata 170YOt1lOr1e0(x1) I ketayment IM PaOonta sltrBmGonaward(11) ED OlherpeWon Oct iAcaMes(aboval(43) Wtan3fid tcmftllon(30 Writ ofmandem(04 1 C] Orheraapbyrnent(15) 01hafkWoUvoView(38) 2 Thnot complex snider fine 1800 of the California pules 0f CourL if the case is complex rrrark the '.. radom NVuldng exceptional judicial management:- 1 a. C] Large rtunherotsepam,161Yp3prmhdedParties d Q Large number ofw0nema b. M Bdon(ve nlotioa PfacS:O rj*Q di MA or novel e.ED Coordination wilt[rotated acdohs penrfing in one or more courts issues that will be , Ong to resolve In other camfies,states or taunt ies,or in afederal Gaud c. © SutrsteSSmighamount ctmoka Mataatyavidehce L CI Suhshangalpoatiudgmentweialsu ep6sion 1 3. T}7x of Iprneclies soug4t(drerlcaRfhaf apply): p s, 0 L.IJ ; reonelall' b. m nrnittlonetaT.dodarelary or injunctive relief a Q pWjfive 4. Number of causes of action(Spasm, l 5. 71us case C7 is ® Is not a doss ad'1 a on s, ow+uoarvrtrroa,NOTICE: wa �� f WEGR N ' .PfairMinust file thts COW Sheet w0h the first papermedtnUia"on orpmoeedng(except small da6ustambr cases lned CIL tnderf}1e fa Pwbz .Femur;or Weller and lnsbl om Coda).(CeL FlUlm of Court rule 201.B sendore. .)Faiiurrta hie trey result In a He arts covarsheal fro edOlon to mfycmweheat re**bd by low cmd rule. I '� a If thisamis complex facder rule law at seq of the Cafifonua F1ules of Court;you must serve a oopyof this cover sheet on all other Wow to the action orpmweding.. •UnjM 11A W a.wa„w'Sa,ti,to,wnrsrenf.,,m M =RECEIVED TIME=JUN. 21, = 4:07Phf— for statistical SO ` fan MIWM__-._....._.