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Home My WebLink About4/2/2008 - STAFF REPORTS - 3.B. APR. 2. 2008 12.41PM WORDIN WILLIAMS APC N0. 9803 P 2 w WORDEN WILLIAMS APC P,epruenling Pub5t Agen41e5,Mvate&Vtivs, and Individual$ F qy 1S,C1 a April 2, 2D08 Z6�3 Cal 1, -2 PF1 1b �b�:l'"'r.5 � �lflrlt'SQIiMI AREAS OF PRACTICE Via Facsimile and U.S. Mail CITY CLER"J, PUBLIC AGENCY LAND USE AND ENVIRONMENTA4 City COunCil REAL ESTATE City of Palm Springs PERSONAL INJURY 3200 E. Tahquitz Canyon Way ESTATE PLANNING Palm Springs, California 92262 AND ADMINISTRATION CIVIL LITIGATION Re: April 2, 2008 Resolution and Ordinance Rescinding Certified EIR and Remaining Entitlements relating to the Palm Hills Project euslNFss Dear Council Members; ATTORNEYS TRACY R.RICHMOND As you know, this office represents the Sierra Club and the Center for Biological D.WAYNE ERLCI•ITEL Diversity with respect to the Palm Hills Project. The Sierra Club and the Center for Biological Diversity are pleased that Lhe City of Palm Springs will adopt a xEN A,CARIFFE resolution and ordinance to rescind the remaining entitlements and decertify The TERRY M.coss EIR. KRISTEN M°BRIDE D.DWICHT WORGEN While we disagree about the technical impact of the referendum on the Project vcoumel approvals, we agree that formally setting them aside at this time is appropriate, W.scow WILLIAMS RoUred Very truly yours, OFFICE WORDEN WILLIAMS, APC 462 STEVENS AVENUE SUITE '�� SUITE SOLANA REACH D. Wayne Brechiel CALIFORNIA dwb@wordenwilliams,com 92075 DW13:lg r {BE217SS•6604 Y%L PIAONE 1550)755-5195 FACSIMIM Qd/77 Z)IUI- A-1117�12/4Z wWW.wprdenwilliam5-Corn °F V. M s,,M sA4 c+ V N k ,r "C. CITY COUNCIL STAFF REPORT DATE: April 2, 2008 LEGISLATIVE ITEM SUBJECT: VACATING, RESCINDING, REPEALING, AND OTHERWISE SETTING ASIDE APPROVAL OF ORDINANCE NOS. 1657 AND 1658 AND RESOLUTION NOS. 20993, 20995, AND 20996, RELATING TO THE 2004 PALM HILLS DEVELOPMENT PROJECT. FROM: David H. Ready, City Manager BY: Douglas Holland, City Attorney RECOMMENDATION: 1, ADOPT ORDINANCE NO. AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, VACATING, RESCINDING, REPEALING AND OTHERWISE SETTING ASIDE APPROVAL OF ORDINANCE NOS. 1657 AND 1658 RELATING TO THE PALM HILLS PROJECT. 2. ADOPT RESOLUTION NO. A RESOLUTION OF THE CITY OF PALM SPRINGS, CALIFORNIA, VACATING, RESCINDING, AND OTHERWISE SETTING ASIDE APPROVAL OF RESOLUTION NOS. 20993, 20995, AND 20996 RELATING TO THE PALM HILLS PROJECT. SUMMARY The developers of the Palm Hills project have decided to abandon the current project. It is anticipated that developers will ultimately pursue a new proposal_ The developers and the City, pursuant to an indemnity agreement agree that the most cost effective way of obtaining a dismissal of related lawsuits is for the City to recognize formally that, as a result of the referendum on the project, the entitlements are inconsistent with the General Plan and are therefore terminated. The City has also agreed to vacate its certification of the project EIR for the same reason. STAFF ANALYSIS: On July 21, 2004, The City Council entered into a development agreement with Palm Hills Corp. ("Developer") entitled Development Agreement No. 4 ("Development Agreement") for the development of the 906 acre Palm Hills site ("Project"). In connection with the Development Agreement, the City approved the following land use approvals: (1) General Plan Amendment, Case No. 5-0732, ("General Plan 515167 i Item No. 3 . Q V . City Council Staff Report 2008 -- Page 2 Resolution Rescinding Resolutions Relating to the Palm Hills Project Amendment") (2) Palm Hills Specific Plan (Planning Area #1), Case No. 5-0732, (3) Planned Development District No. 258, Case No. 5-0826-PD-258, (4) Tentative Parcel Map 291901, and (5) Tentative Tract Map 29100 for the development of approximately 900 acres more or less in the southeastern portion of Palm Springs (the "PDD Area") and at the same time certified the Environmental Impact Report No. 98061043 ("EIR") by Resolution No. 20993 (collectively "Entitlements")- On August 5, 2004, Sierra Club and Center for Biological Diversity filed a lawsuit in Riverside County Superior Court. On March 8, 2005, the City's approval of the General Plan Amendment was set aside by way of a referendum, rendering all of the Entitlements inconsistent with the General Plan and therefore invalid and of no force or effect. Because the defeat of the General Plan Amendment rendered the Entitlements inconsistent with the General Plan, a question was raised as to whether the lawsuit was moot. Sierra Club and Center for Biological Diversity took the position that the City might try to use the certified EIR and the remaining entitlements in conjunction with a future project and decided to maintain the lawsuit to invalidate the certified EIR and remaining entitlements. The original Developer has assigned all of its rights and obligations in the Palm Hills project to Palm Hills Company, LLC. Palm Hills, LLC has executed an indemnity agreement with the City and has paid all of the City's attorneys' fees and costs in connection with the Lawsuit. The City has agreed to consider taking all additional steps necessary to formally vacate or otherwise set aside as invalid and of no force and effect, the following resolutions and ordinances concerning the project: (1) Ordinance No. 1657 approving a change of zone; (2) Ordinance No. 1658 approving the development agreement; (3) Resolution No. 20993 certifying the Final Environmental Impact Report as complete, adopting the Statement of Facts and Findings, adopting the Statement of Overriding Considerations, and adopting the Mitigation Monitoring Program for the Project; (4) Resolution No. 20995 approving the Palm Hills Specific Plan; and (5) Resolution No. 20996 approving the Preliminary Plan Development District 258, Tentative Parcel Map No. 29100, and Tentative Tract map No. 29101 for the 906-acre development proposed on property owned by Palm Hills Corp FISCAL IMPACT: There sh u e 7ilct on the City. Douglas Jdtrand, City Attorney ?sJ David H. Ready, City r Attachments: Proposed Ordinance and Resolution 515167 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, VACATING, RESCINDING, REPEALING AND OTHERWISE SETTING ASIDE APPROVAL OF ORDINANCE NOS. 1657 AND 1658 RELATING TO THE PALM HILLS PROJECT. City Attorney's Summary This ordinance vacates, rescinds, repeals and otherwise sets aside approval of Ordinance Nos. 1657 and 1658 relating to the Palm Hills project. THE CITY OF PALM SPRINGS, CALIFORNIA, DOES HEREBY ORDAIN: SECTION 1. Ordinance No. 1657 approving a change of zone relating to the Palm Hills project is hereby vacated, rescinded, repealed and otherwise set aside. SECTION 2. Ordinance No. 1658 approving the development agreement relating to the Palm Hills project is hereby vacated, rescinded, repealed and otherwise set aside. SECTION 3. The Council finds that this Ordinance is in furtherance of a determination of the voters of the City of Palm Springs at an election held and conducted in March 8, 2005 and, consistent with the provisions of Charter Section 315 (a) can be adopted at the time of introduction and will become effective at the time of adoption. SECTION 4. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect upon adoption. PASSED, APPROVED, AND ADOPTED THIS DAY OF 2008. STEPHEN P. POLIGNET, MAYOR 5FhE07 t City of Palm Springs Ordinance No. , 2008 Page 2 ATTEST: James Thompson, City Clerk APPROVED AS TO FORM: Douglas Holland, City Attorney CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, do hereby certify that Ordinance No. is a full, true and correct copy, and was adopted at a regular meeting of the Palm Springs City Council on the day of 2008, by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California 568603.1 RESOLUTION NO. A RESOLUTION OF THE CITY OF PALM SPRINGS, CALIFORNIA, VACATING, RESCINDING, AND OTHERWISE SETTING ASIDE APPROVAL OF RESOLUTION NOS. 20993, 20995, AND 20996 RELATING TO THE PALM HILLS PROJECT_ THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS: A. On or about July 21, 2004, The City Council of the City of Palm Springs entered into a development agreement with Palm Hills Corp. ("Developer") entitled Development Agreement No. 4 or DA4 ("Development Agreement") for the development of Developer's property consisting of an approximately 906 acre site in Palm Springs California known as Palm Hills (the "Property"), pursuant to the development plan in the Development Agreement ("Project"). B. In connection with the Development Agreement, the City approved the following land use approvals: (1) General Plan Amendment, Case No. 5-0732, ("General Plan Amendment") (2) Palm Hills Specific Plan (Planning Area #1), Case No. 5-0732, (3) Planned Development District No. 258, Case No. 5-0826- PD-258, (4) Tentative Parcel Map 291901, and (5) Tentative Tract Map 29100 for the development of approximately 900 acres more or less in the southeastern portion of Palm Springs (the "PDD Area") and at the same time certified the Environmental Impact Report No. 98061043 ("EIR") by Resolution No. 20993 (collectively "Entitlements"). C. On or about August 5, 2004, Sierra Club and Center for Biological Diversity filed a Petition for Writ of Administrative and Traditional Mandate in the Riverside County Superior Court, Case No. INC 044852, to invalidate the Entitlements and set aside the EIR ("Lawsuit"). D. On or about March 8, 2005, the City's approval of the General Plan Amendment was set aside by way of a referendum ("Referendum"), rendering the General Plan Amendment inconsistent with the General Plan and therefore invalid and of no force or effect- E. Because the Referendum rendered the General Plan Amendment inconsistent with the General Plan and without value, a question was raised as to whether the lawsuit was moot. F. Sierra Club and Center for Biological Diversity took the position that the City and the Developer may try to use the certified EIR, and the entitlements identified in subparagraphs (2)-(5) of Paragraph B, above, that were not the subject matter of the Referendum (collectively "Remaining Entitlements"), and decided to proceed with the Lawsuit to invalidate the certified EIR and Remaining Entitlements. 566603 I City of Palm Springs Resolution No. March 26, 2008 Page 2 G. Section 13 of the Development Agreement provides that the Developer, Palm Hills Corp. agrees to indemnify the City and its elective boards, commissions, officers, agents and employees and to hold and save them harmless from any and all actions, suits, claims, liabilities, etc. (including but not limited to attorneys' fees and costs) against the City and/or agent for any such Claims or Litigation (as those terms are defined in Section 1.10 of the Development Agreement) and shall be responsible for any judgment arising there from (collectively, the "Indemnity Obligations"). H. Section 13.3 of the Development Agreement provides that all indemnity provisions set forth therein shall survive termination of the Development Agreement for any reason other than the City's default. I. On or about May 26, 2004, Developer Palm Hills, LLC became an interested party in the Lawsuit by executing an agreement whereby Palm Hills, LLC was assigned inter alia: (i) the right to purchase the Property; and (ii) Palm Hills Corp.'s rights and obligations under the Development Agreement, including the Indemnity Obligations (the "Assignment Agreement"). J. On or about November 2, 2007, Palm Hills Land Corp., a California Corporation and Palm Hills Company, LLC, a Delaware limited liability company, executed an Indemnity Agreement further memorializing and reiterating Palm Hills Company, LLC's indemnity obligations to the City and related indemnitees and Palm Hills Land Corp. acknowledged that it has no objection to the City and Palm Hills Company LLC entering into the agreement- K. The Developer and the City agree that the most cost effective way of obtaining a dismissal of the Lawsuit is for the City to recognize formally that, as a result of the Referendum, the Remaining Entitlements are inconsistent with the General Plan and are therefore terminated- L. The City also agreed to vacate its approval of Resolution No. 20993, which certified the EIR, in light of the fact that the Remaining Entitlements were rendered invalid as a result of the Referendum. M. Palm Hills Company, LLC has paid all attorneys' fees and costs incurred by the City in connection with the Lawsuit. N. The City has agreed to consider taking all additional steps necessary to formally vacate or otherwise set aside as invalid and of no force and effect, the following Resolutions and Ordinances concerning the Project: (1) Resolution No. 20993 certifying the Final Environmental Impact Report as complete, adopting the Statement of Facts and Findings, adopting the Statement of Overriding Considerations, and adopting the Mitigation Monitoring Program for the Project; (2) Resolution No. 20995 approving the Palm Hills Specific Plan; (3) Resolution sFnsn� i City of Palm Springs Resolution No. March 26, 2008 Page 3 No. 20996 approving the Preliminary Plan Development District 258, Tentative Parcel Map No. 29100, and Tentative Tract map No. 29101 for the 906-acre development proposed on property owned by Palm Hills Corp.; (4) Ordinance No. 1657 approving a Change of Zone; and (5) Ordinance No. 1658 approving the Development Agreement. THE CITY OF PALM SPRINGS, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City of Palm Springs determines, based on the recitals contained in this resolution and the findings and facts provided in this resolution, the agenda report, public testimony, and any other relevant and supporting evidence that the Referendum rendered all of the Project Entitlements inconsistent with the General Plan and that said Project Entitlements are therefore invalid and of no force or effect. SECTION 2. The City of Palm Springs hereby vacates, rescinds, and otherwise sets aside approval of Resolution No. 20993 certifying Final Environmental Impact Report No. 98061043 as complete, adopting the Statement of Facts and Findings, adopting the Statement of Overriding Considerations, and adopting the Mitigation Monitoring Program for the Project. SECTION 3. The City of Palm Springs hereby vacates, rescinds, and otherwise sets aside approval of Resolution No. 20995 approving the Palm Hills Specific Plan. SECTION 4. The City of Palm Springs hereby vacates, rescinds, and otherwise sets aside approval of Resolution No. 20996 approving Preliminary Plan Development District 258, Tentative Parcel Map No. 29100, and Tentative Tract map No. 29101. PASSED, APPROVED, AND ADOPTED THIS DAY OF 2008. STEVE POUGNET, MAYOR 568803 1 City of Palm Springs Resolution No. March 26, 2008 Page 4 ATTEST: James Thompson, City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, do hereby certify that Resolution No. is a full, true and correct copy, and was adopted at a regular meeting of the Palm Springs City Council on the day of , 2008, by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California sEesn3.1 PROOF OF PUBLICATION This is space for Counry Clerk's Filing Scamp (2015.S.C.C.P) STATE OF CALIFORNIA County of Riverside 1 am a citizen of the United States and a resident of Proof"of Publication of the County aforesaid;I am over the age of eighteen years,and not a parry to or interested in the above-entitled matter. 1 am the principal clerk of a printer of the,DESERT SUN PUBLISITING COMPANY a newspaper of general circulation, printed and published in the city of Palm Springs, No.1194 CIry of PSIM Vrlllg4 County of Riverside,and which newspaper has been SUMMARY OF ORDINANCE N0.1741 adjudged a newspaper of general circulation by the AN ORDINANCE OF THE CITY OF PALM SPRINGS, Superior Court of the County of Riverside,State of CALIFORNIA VACATING RESCINDING, P tY REPEALING AND dTNERWISE SETTING ASIDE AP- California under the date of March 24, 1988.Case PRE TO THE PALM HILLS PROJECT.B RE- LATING Number 191236; that the notice,of which the City Aflpmees Summary annexed i5 x printed copy(set in type not smaller �Thiswise setsordenaremsid vecetei rescinds, repeals and other land than non ariel,has been published in each regular 1 SB misting ing to the Palm Or omsect, NOS 1657 and p p g 1658 relating Po the Palm Hdls pmlect. and entire issue of said newspaper and not in any I JAMES THOMPSON City Clerk of the City of Palm supplement thereof on the following dates,to wit: Sprmge,do hereby certify that Ordinance,No 1741 Is a toll,IruB and correct copy,end was Bdoptad al a rB99u• lar maehnpp of the Palm Spdnpps City Council on the April 1 Zd',2009 end day orAprll,2006,by the fdldwing vote: AYES: Councilenember Hutcheson,Counclimember MIAs lmembar Weigel, Mayor Pm Tam OB and Mayorayor Pougnet, NOES: None. ABSENT!None. All in the year2008 ABSTAIN :None. JameaThompsonCiNClark city of Palen Spnngs,Ca dorma I certify(or declare)under penalty of perjury that the Published!4112/0 _"— foregoing is true and correct. Dated at Palm Springs,California this----i5`I',--day - - - of------ April ------------.----,2008 _ G"1 Signature O� LL [C Ln o � �, N City of Palm Springs SUMMARY OF ORDINANCE NO. 1741 AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, VACATING, RESCINDING, REPEALING AND OTHERWISE SETTING ASIDE APPROVAL OF ORDINANCE NOS. 1657 AND 1658 RELATING TO THE PALM HILLS PROJECT. City Attorney's Summary This ordinance vacates, rescinds, repeals and otherwise sets aside approval of Ordinance Nos. 1657 and 1658 relating to the Palm Hills project. I, JAMES THOMPSON, City Clerk of the City of Palm Springs, do hereby certify that Ordinance No. 1741 is a full, true and correct copy, and was adopted at a regular meeting of the Palm Springs City Council on the 2Id day of April, 2008, by the following vote.- AYES: Councilmember Hutcheson, Councilmember Mills, Councilmember Weigel, Mayor Pro Tern Foat and Mayor Pougnet. NOES: None. ABSENT: None. ABSTAIN: None. - 'Fnes Thompson, City Cler< ty of Palm Springs, California HAUSERS%C-CLK\KathieH\Ord Summary\Ord 1741 - Summary doc