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HomeMy WebLinkAbout5/21/2008 - STAFF REPORTS - 2.N. QpLM S,o ;o R� y U N 4 x CITY COUNCIL STAFF REPORT DATE: May 21, 2008 CONSENT AGENDA SUBJECT: EXTENSION OF APPROVAL OF TENTATIVE TRACT MAP 31766 AND PLANNED DEVELOPMENT DISTRICT 294 (PLANNED DEVELOPMENT PLAN CASE NO. 5.0996-PD294). FROM: David H. Ready, City Manager BY: Douglas Holland, City Attorney SUMMARY The terms of a proposed settlement agreement involving a challenge to the City's approval of the Crescendo development project includes a provision that the City will extend the tentative tract map and planned development entitlements for a period of three years beyond the original two years approved by the City. This action approves the extension of the tentative tract map and the planned development to October 16, 2012. RECOMMENDATION- 1. Approve an extension of Tentative Tract Map 31766 and Planned Development District 294 (Planned Development Case No. 5.0996 PD294) for an additional three (3) years beyond the original two (2) years, as initially approved by the City Council such that the expiration of the tentative tract map and planned development shall be October 16, 2012. STAFF ANALYSIS: On October 17, 2007, the City Council certified an environmental impact report and approved various entitlements, including a tentative tract map and a planned development for the Crescendo Project. Pursuant to the approval, these entitlements are to expire on October 16, 2009. On December 12, 2007, a lawsuit was filed challenging the City's certification of the environmental impact report and the approval of the tentative map and planned development. Item No. 2 . N . City Council Staff Report May 21, 2008 Extension of Crescendo Development Entitlements On May 7, 2008, the City Council authorized the City Attorney's office to conclude the negotiations for a settlement of the litigation and approve a settlement agreement with all parties. A copy of the Settlement Agreement is attached to this agenda report for the Council's information. Pursuant to the terms of the settlement agreement, the Developer has agreed to eliminate rock crushing on the Crescendo property and to include several architectural styles within the Crescendo project, and within each style there will be at least three (3) different floor plans and multiple elevations. The agreement also provides that the City will extend the development entitlements for an additional three (3) years beyond the initial expiration date. The City will execute the agreement after the City Council approves the extension. The City has the discretion under state law to grant extensions to development entitlements. The period of such extensions may be for a period or periods not exceeding a total of five (5) years. This request to extend is within such limits and is consistent with state law. Approval of the extension will conclude the litigation and allow the development of the Crescendo project to proceed subject to the additional restrictions outlined above. The Developer and the neighboring property owners who commenced the litigation have approved and executed the agreement. FISCAL IMPACT There is no foreseeable fiscal impact on the City. Dougl, s Holland, City Attorney David H. Ready, pager Attachment: Copy of the Settlement Agreement d00 ©17� 2 SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement (the "Agreement") is made, entered into as of this day of 2008 by and between Wessman Development Company, a California corporation, on behalf of itself and its successors and assigns (collectively, "WESSMAN"), Friends of Palm Springs Mountains (hereinafter `Friends"), and the City of Palm Springs, a Charter City (hereinafter, the "City"). Friends is sometimes referenced below as the "Petitioners". Wessman, Friends and City are sometimes hereinafter collectively referenced as the "Parties," and alternatively referenced as a "Party." RECITALS A. Wessman is the owner of certain real property in the City of Palm Springs, California consisting of approximately 42 acres lying south of Tramway Road, north of Racquet Club Drive and immediately west of Vista Grande Avenue (hereinafter referred to as the "Crescendo Property".) B. Wessman proposed that the Crescendo Property be developed with 79 single family residences and related common area (hereinafter the "Project"), C. To authorize development of the Project, Wessman submitted and the City processed the following entitlement applications (collectively referred to hereinafter as the "Entitlements")! a. Planned Development District 294 and Planned Development Plan Case No. 5.0996--PD294 (hereinafter the "PD"); In. Tentative Tract Map 31766 (hereinafter "TTM 31766") to subdivide the Crescendo Property into 79 single-family residential lots on an approximately 42-- acre site; c. Street vacation for the Westerly 23 feet of Vista Grande Avenue right of way, (hereinafter the "Street Vacation"). D. To comply with the requirements of the California Environmental Quality Act ("CEQA"), an Environmental SETTLEMENT AND RELEASE AGREEMENT Pagel of 13 Impact Report for the Crescendo Project, (hereinafter referred to as the "EIR") was prepared and was made available for public comment. E. On September 26, 2007, the Planning Commission of the City of Palm Springs, after a duly noticed public hearing, considered the EIR and the Entitlement applications and recommended that the City Council certify the EIR and approve the Entitlements. F. On October 17, 2007, the City Council of the City of Palm Springs, after a duly noticed public hearing, voted to certify the EIR and to approve the Entitlements. G. On December 12, 2007, Friends filed a Petition for Writ of Mandate Pursuant to the California Environmental Quality Act, Case No. RIC488512 (hereinafter the "Litigation") challenging the City"s certification of the EIR and approval of the Entitlements. H. The Parties mutually desire, in their shared interest, to avoid the costs of litigation between them, and to settle and resolve, fairly, fully and finally, all matters in dispute between them including expressly, but without limitation, any actual or potential claim arising from the Litigation. I. The Parties have agreed to reach a comprehensive and conclusive settlement of all of their differences with, grievances about and claims against each other arising from the Litigation, all as discussed in further detail below. NOW, THEREFORE, for good and valuable consideration, including but not limited to the mutual promises herein contained, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows: 1 . SETTLEMENT In consideration for the settlement of the Litigation and the promises and releases contained herein, the parties agree as follows: a. Wessman agrees to eliminate any rock crushing on the Crescendo Property. The parties acknowledge that elimination of rock crushing will necessitate SETTLEMENT AND RELEASE AGREEMENT Page 2of13 export and import of material from the Crescendo Property. Wessman agrees to reasonably negotiate with the Tramway Authority for the right to use Tramway Road for the purpose of hauling material to and from the Crescendo Property. If the Tramway Authority does not agree to allow Wessman to so utilize Tramway Road for the hauling of material to and from the Crescendo Property as necessary under terms reasonably acceptable to Wessman, then the Parties agree that existing public roadways may be utilized for the hauling of material to and from the Crescendo Property. In the event that it is necessary to use public roadways to haul material to or from the Crescendo Property, Wessman agrees to hold a meeting with the surrounding property owners in advance of initiating such hauling to advise them of the schedule for said hauling. Wessman further agrees that any hauling of material to or from the Crescendo Property shall comply with the limitations on hours and days of operation as set out in the City of Palm Springs' Municipal Code section 8.04.220. Wessman further agrees to include several architectural styles within the Crescendo Project, including, but not limited to, Mid-Century Modern, Tuscan and Mediterranean architecture. Within each style, Wessman shall provide for at least three different floor plans and multiple elevations, and may also construct custom homes on the Crescendo Property, subject to City approval and review. Wessman agrees to conform to condition of approval 29(a) which provides that "No second story units shall be allowed along the perimeter of the project or adjacent to another second story unit. Second story units shall be limited to a maximum of 25% of the total number of lots (i.e. 19 total)." b. In consideration for the modifications to the project agreed to by Wessman and the other promises contained herein, the City agrees to and does hereby extend the Entitlements for a period of three years beyond the original two years approved by the City, such that the expiration of the Entitlements shall now be October 16, 2012. In the event that any State legislation is adopted which would extend the SETTLEMENT AND RELEASE AGREEMENT Page 3of 13 6 00395 life of any of the Entitlements, such an extension shall be in addition to the extension granted herein. c. Friends agrees that upon execution of this Settlement Agreement by all Parties, and within three (3) business days of their receipt of reimbursement of attorneys fees and costs as set forth in a separate agreement between Friends and Wessman, Friends shall file with the Clerk of the Court, a Request for Dismissal With Prejudice, dismissing the Litigation in its entirety. 2. RELEASE. In consideration for the agreements as set forth herein, Friends, on behalf of themselves, and each of their respective members, associates, predecessors, successors, assigns, parents, subsidiaries, alter egos, and affiliates, if any (and each of their respective present and former officials, officers, employees, independent contractors, directors, shareholders, partners, agents, attorneys, insurers, accountants, heirs, and successors and assigns, if any) (collectively referred to as "Related Entities") hereby fully and forever waives and releases any and all rights, claims, suits, rights of administrative action or appeal, chose in action, and causes of action of every nature whatsoever ("Action") which they have or may have against Wessman or the City and each of their respective members, associates, predecessors, successors, assigns, parents, subsidiaries, alter egos, and affiliates, if any (and each of their respective present and former officials, officers, employees, independent contractors, directors, shareholders, partners, agents, attorneys, insurers, accountants, heirs, and successors and assigns, if any) arising from: (r) the Litigation and (ii) the City's approval of the Entitlements, including without limitation, the issuance of any findings, resolutions, ordinances, or entitlements for the Project (collectively, the "Released Claims"). Notwithstanding the foregoing, the Released Claims shall not include any action to enforce the conditions of approval for the Project, or any action for personal injury and/or property damage which is caused directly by the implementation of the Project. Friends, on behalf of themselves and each of their respective Related Entities, hereby discharges Wessman and the City and their Related Entities from any and all Released Claims. Friends, on behalf of themselves and each of their Related Entities, covenants not to threaten, bring, commence, SETTLEMENT AND RELEASE AGREEMENT Page 4 of 13 l.Y 11 C9�J� initiate, institute, file, join, maintain, prosecute, support, or threaten any Action based in whole or part upon any of the Released Claims. Each of the Parties 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 based in whole or in part upon a Released Claim. 3. CALIFORNIA CIVIL CODE SECTION 1542. Friends has read and has otherwise been informed of the meaning of Section 1542 of the California Civil Code, and has consulted with its counsel, to the extent that any was desired, and understands the provisions of Section 1542, and, as to the Released Claims, hereby expressly waives the rights and benefits conferred upon it by the provisions of Section 1542 of the California Civil Code, which provides: "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." Friends Initials 4. INTEGRATION, MODIFICATION. a. The Parties acknowledge that this Agreement is signed and executed without reliance upon any actual or implied promises, warranties or representations made by any of the Parties or by any representative of any of the Parties, other than those which are expressly contained within this Agreement. b. This Agreement, including the true and correct Recitals above, incorporated by reference herein as operative covenants and specifically relied upon by the Parties in executing this Agreement, constitutes the entire agreement and understanding among and between the Parties. SETTLEMENT AND RELEASE AGREEMENT Page 5of13 090,1D'7 C. This Agreement supersedes all prior and contemporaneous agreements, understandings, terms, conditions, and representations, written or oral, made by the Parties hereto or their attorneys, concerning the matters covered by this Agreement. d. This Agreement cannot be modified or changed except by written instrument signed by all of the Parties. S. SETTLEMENT, NO ADMISSION BY PARTIES. Each of the Parties acknowledges that this Agreement relates to the settlement of the Litigation and the preclusion of Actions based in whole or in part upon Released Claims. The Parties, therefore, agree that this Agreement is not to be treated or construed, at any time or in any manner whatsoever, as an admission that any of the allegations in the Litigation, or any actual or potential Released Claim, has any merit. 6. BINDING EFFECT. To the maximum extent allowed by law and except as otherwise specified herein, this Agreement inures to the benefit of and is binding upon the Parties and all their respective predecessors, assigns, beneficiaries, employees, affiliated entities, shareholders, officers and directors, partners, joint venturers, dependents, spouses, respective representatives, agents, accountants, attorneys, insurance carriers, and successors. 7. RESPONSIBILITY FOR COSTS TO DATE. The Parties agree that each of them shall bear their own costs and attorneys' fees, directly or indirectly relating to or arising from the Litigation and other matters covered by this Agreement, except as provided in a separate agreement by and between Wessman and Friends to be executed concurrently herewith, provided however that nothing contained herein shall be deemed to negate the indemnity obligations set forth in Planning Department Administrative Condition Number 2 with respect to the City. SETTLEMENT AND RELEASE AGREEMENT Page 6 of 13 8. INDEPENDENT LEGAL COUNSEL. Each Party acknowledges that it has been represented by independent legal counsel of Its own choice throughout all of the negotiations that preceded the execution of this Agreement or has knowingly and voluntarily declined to consult legal counsel, and that each Party has executed this Agreement with the consent and on the advice of such independent legal counsel. 9. DRAFTING. This Agreement shall be deemed to have been negotiated and drafted by the Parties and their respective attorneys. No provision herein shall be interpreted or construed in favor of or against any Party on the ground that said Party or its attorney drafted that provision of the Agreement. Uncertainty and ambiguity in a provision herein shall not be interpreted against that provision's drafter. 10. APPLICABLE LAW AND VENUE. This Agreement shall be deemed to have been executed and delivered within the State of California: the rights and obligations of the Parties hereunder shall be governed, construed and enforced in accordance with the laws of the State of California. The venue for any dispute arising from or related to this Agreement, its performance, and its interpretation shall be the Superior Court of California, County of Riverside, Indio Branch. 11 . NO THIRD PARTY BENEFICIARIES. It is expressly agreed that this Agreement is not for the benefit of any person or entity not a Party hereto. This Agreement is not intended to constitute a third party beneficiary contract. 12. RELATIONSHIP OF THE PARTIES. It is hereby specifically understood and acknowledged that this Agreement is merely intended to settle the Litigation and preclude Actions based in whole or in part upon Released Claims. No Party hereto will be deemed to be an agent of any other for any purpose whatsoever. The Parties hereby renounce the existence of any form of joint venture or partnership SETTLEMENT AND RELEASE AGREEMENT Page 7 of 13 0000� between or among them and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making any Party a joint venturer or partner with another. 13. EFFECTIVE DATE, COUNTERPARTS AND ENFORCEMENT. This Agreement shall be effective as of the date it is signed by all parties hereto ("Effective Date").This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which constitute one and the same instrument. The Parties hereby agree that, following dismissal of the Litigation per paragraph 1 (c) above, the Court shall retain jurisdiction over the Litigation's subject matter for purposes of enforcing this Agreement's terms. 14. INDEPENDENT INVESTIGATION. Each Party to this Agreement has made an independent investigation of the facts pertaining to the provisions contained in this Agreement and all of the matters pertaining thereto as deemed necessary. 15. HEADINGS AND FORMATTING. The headings and formatting in this Agreement are inserted for convenience only. They do not constitute part of this Agreement and shall not be used in its construction. 16. TIME OF ESSENCE. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 17. BREACH AND REMEDIES. Notwithstanding any provision of this Agreement to the contrary, no Party hereto shall be deemed to be in default under this Agreement with respect to any obligation owed to another unless the Party proposing to terminate or modify the rights of another shall have first delivered a written notice of any alleged default to the allegedly defaulting Party that specifies the nature of such default. If such default is not cured by the allegedly defaulting Party within thirty (30) days after receipt of such notice of default, or with respect to defaults that cannot be SETTLEMENT AND RELEASE AGREEMENT Page 8 of 13 cured within such period, the allegedly defaulting Party fails to commence to cure the alleged default within thirty (30) days after receipt of the notice of default, or thereafter fails to diligently pursue the cure of such default, the Party alleging default by another may bring an action to enforce this Agreement or, at the option of the party claiming default, bring a motion to enforce this Agreement under Section 664.6 of the Code of Civil Procedure. The foregoing thirty (30) day cure period in the event of a default shall not apply if Wessman initiates rock crushing on the Crescendo Property in violation of this Agreement, in which case, Friends shall be entitled to immediately seek an injunction to stop said rock crushing on the Crescendo Property. In the event that a breach of this Agreement occurs, irreparable harm is likely to occur to the non-breaching Party and damages will be an inadequate remedy. To the extent permitted by law, therefore, it is expressly recognized that injunctive relief and specific enforcement of this Agreement are proper and desirable remedies, and it is agreed that any claim by a Party alleging a default against an allegedly defaulting Party for an alleged breach of this Agreement may be remedied by injunctive relief or an appropriate action for specific enforcement of this Agreement in addition to any other remedy available at law or equity. 18. WAIVER. Failure by a Party to insist upon the strict performance of any of this Agreement's provisions by another Party, or the failure by a Party to exercise its rights upon an alleged default of another party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 19. NOTICE. All notices or other communications required or permitted hereunder shall be in writing and shall be either personally delivered (which shall include delivery by means of professional overnight courier service which confirms receipt in writing [such as Federal Express or UPS], sent by telecopier or facsimile ("Fax") machine capable of confirming transmission and receipt, or sent by certified or registered mail, return receipt requested, postage prepaid, or sent via e-mail provided the recipient SETTLEMENT AND RELEASE AGREEMENT Page 9 of 13 confirms receipt, to the following parties at the following addresses or numbers: If to Citv: City of Palm Springs 3200 Tahquitz Canyon Way Palm Springs, California 92262 Attention: City Manager and City Attorney Telephone: (760) 323-8299 Fax: (760) 323-8207 e-mail: With copy to: Woodruff, Spradlin & Smart Attn: Douglas C. Holland 555 Anton Boulevard Suite 1200 Costa Mesa, California 92626 Telephone: (714) 564-2642 Fax: (714) 565-2542 e-mail: DHolland@wss--law.com If to Wessman: Wessman Development Company Attn: Michael Braun 300 S. Indian Canyon Drive Palm Springs, California 92262 Telephone: (760) 325-3050 Fax: (760) 325-5848 e-mail: Martha@Wessmandevelopment.com With copy to: Ealy, Hemphill, Blasdel & Oleson, LLP 777 E. Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 Attention: Emily Perri Hemphill Telephone: (760) 320-5977; Fax (760) 320-9507 e-mail: EPHemphill@aol.com If to Friends: Friends of the Desert Mountains Telephone: Fax: e-mail: SETTLEMENT AND RELEASE AGREEMENT Page 10 of 13 USE" 2 L With Copy To: Chatten-Brown Er Carstens Attn: Jan Chatten-Brown 2601 Ocean Park Boulevard Suite 205 Santa Monica, California 90405 Telephone: (310) 314-8040 Fax (310) 314-8050 e- mail: Notices sent in accordance with this Section 21 shall be deemed delivered upon the: (a) date of delivery as indicated on the written confirmation of delivery (if sent by overnight courier service); (b) date of actual receipt (if personally delivered by other means); (c) date of transmission (if sent by telecopier or facsimile machine); or (d) date of delivery as indicated on the return receipt (if sent by certified or registered mail, return receipt requested). Notice of change of address shall be given by written notice in the manner detailed in this Section 21 and shall be effective three (3) days after mailing by the above- described procedure. 20. FURTHER COOPERATION. Each of the Parties agrees to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the terms and conditions of this Agreement. 21 . AUTHORITY OF SIGNATORIES. Each of the individuals executing this Agreement warrants and represents that they are authorized to so execute this Agreement on behalf of the party they purport to represent, and that by so signing this Agreement they are creating a binding obligation for the party they purport to represent. SETTLEMENT AND RELEASE AGREEMENT Page 11 of 13 IN WITNESS WHEREOF, each of the Parties has executed this Agreement on the day and year written below. City of Palm Springs, a Charter City Dated: Steve Pougnet Mayor, City of Palm Springs Attest: City Clerk APPROVED AS TO FORM: WOODRUFF, SPRADLIN & SMART Douglas C. Holland, Esq. City Attorney, City of Palm Springs Wessman Development Company Dated: By: Its: APPROVED AS TO FORM: EALY, HEMPHILL, BLASDEL & OLESON, LLP By: Emily Perri Hemphill, Esq. Attorneys for Real Parties in Interest, Wessman Development Company [Signature page continues.] SETTLEMENT AND RELEASE AGREEMENT Page 12 of 13 Q 691. [Signature page continued.] Friends of Palm Springs Mountains, Inc. Dated: By: Its: APPROVED AS TO FORM: CHATTEN-BROWN & CARSTENS By: Jan Chatten-Brown, Esq. Attorneys for Plaintiff/Petitioner Friends of Palm Springs Mountains SETTLEMENT AND RELEASE AGREEMENT Page 13 of 13 ILI