HomeMy WebLinkAbout1/21/2004 - STAFF REPORTS (5) Date: January 21, 2004
To: City Council
From: Director of Planning & Zoning
SETTLEMENT AGREEMENT: SIERRA CLUB / CENTER FOR BIOLOGICAL DIVERSITY AND
PALM SPRINGS INVESTMENT COMPANY / CITY OF PALM SPRINGS FOR PALM SPRINGS
CLASSIC PROJECT. (5.0666-PDD-231)
RECOMMENDATION:
Approval of settlement agreement between Sierra Club / Center for Biological Diversity and Palm
Springs Investment Company/ City of Palm Springs.
BACKGROUND:
This Settlement Agreement fully resolves claims by the Sierra Club/Center for Biological Diversity
(Petitioners)regarding the Palm Springs Classic project. The project entails a 1,450-unit mixed-use
development on 460 acres of land located on Vista Chino and Gene Autry Trail, east of the Palm
Springs International Airport. The project was approved by the City Council on July 16, 2003 at
which time the City Council adopted a Mitigated Negative Declaration.
Subsequent to project approval, the petitioners filed a lawsuit alleging that mitigation measures
regarding Coachella Valley Milk Vetch(CVMV)and Coachella Valley Fringe-Toed Lizard challenging
the project approval and environmental documents.
Palm Springs Investment Company has been working with U.S. Fish and Wildlife Service and
petitioners to resolve concerns about project mitigation. Based upon these negotiations, all parties
have agreed to a settlement which will mitigate potential adverse impacts by providing mitigation
funding or by purchasing mitigation lands or a combination thereof. Mitigation can be accomplished
per the schedule in the Agreement but must be accomplished in full prior to issuance of a grading
permit or any other development activity. This Settlement Agreement has no financial effect upon
the City. All mitigation shall be paid by Palm Springs Investment Company or its assigns or
successors.
The Settlement Agreement, duly executed, is on file in the office of the City Clerk.
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DOUGLASA. EVANS
Director of Planning & Zoning
City Manager
Attachments:
1. Minute Order
t Jan .21 . 2004 3:40PM No .7743 P . I
SETTLEMENT AGREEMENT
This Settlement Agreement("Agreement") is made and entered into by and
between the SIERRA CLUB and CENTER FOR BIOLOGICAL DIVERSITY
(collectively "Petitioners") on the one hand, and P.S. INVESTMENT
COMPANY, LCC, the CITY OF PALM SPRINGS, the CITY COUNCIL OF
THE CITY OF PALM SPRINGS, and D.T. PALM SPRINGS
INTERCONTINENTAL GOLF CENTER ENTERPRISES, LTD., a California
limited partnership (collectively "Respondents"), on the other hand, with respect
to the following facts;
A. This Agreement concerns a project commonly known, as The Palm
Springs Classic, a mixed-use development, consisting of, among other things,
residential units, hotel/time share units, golf course, clubhouse, and practice range,
Case No. 5,0666-B-PD-231 (hereafter the "Project"). The Project site consists of
approximately 400 acres located within the eastern portion of the City of Palm
Springs bounded by Vista Chino to the north, the City limits to the east, the Dream
Homes in Cathedral City to the southeast, Gene Autry Trail (Highway 111) and
the Palm Springs International Airport to the west and vacant'land to the south,
and is shown on the Exhibit A, attached hereto and incorporated herein (hereafter
the "Property„
B. The Project was approved by the City Council for the City of Palm
Springs ("Council") on July 16, 2003. At that time, the Council adopted a
Mitigated Negative Declaration and approved a Tentative Map and General Plan
Amendment for the Project(collectively the "Project Approvals").
C. Petitioners objected to approval of the Project during the
administrative proceedings because of concerns regarding environmental impacts,
particularly the level of mitigation proposed to address adverse impacts to the
endangered Coachella Valley milk vetch Astragalus lentiginosus coachellae
("Milk-vetch") and Coachella Valley fringe-toed lizard, Uma inornata, ("Fringe-
toed Lizard"), and subsequently filed a Petition for Writ of Administrative
Mandamus challenging the Project Approvals, Case No. INC037564, Center for
Biological Diversity and Sierra Club v. City of Palm Springs. ct al., Case No. INC
037564 (the "Lawsuit").
D. P.S. Investment Company, LLC ("PSIC")has been working with the
U.S. Fish and Wildlife Service ("Service") and Petitioners to resolve concerns
regarding environmental impacts.
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F, The parties now wish to enter into a settlement agreement that will
provide for funding to mitigate Project impacts, funding for the purchase and
preservation of off-site Milk-vetch habitat, funding for mitigation of Fringe-toed
Lizard impacts and dismissal of the Lawsuit.
NOW, THEREFORE,the parties hereto agree as follows:
I. PSIC shall mitigate potentially adverse impacts to Milk-vetch and
the Fringe-toed Lizard by either (a)providing mitigation funds in accordance with
the "Funding Option" described below in Section 2 or (b) by purchasing Milk-
vetch habitat, and providing a reduced amount of mitigation funds in accordance
with the "Habitat Option" described below in Section 3.
2, Funding Option.
PSIC shall fully satisfy the Fringe-toed Lizard and Milk-vetch mitigation
requirements for the Project by payment of funds ("Mitigation Funds")pursuant to
the following conditions:
(a) The Mitigation Funds shall be paid in accordance with the
following schedule:
(i) $1,100,000 paid in two installments as follows:
$550,000 on or before 2/16/2004, and another $550,000 on or before
12/31/2004; or
(ii) $1,150,000 if paid in full on or before 12/31/2004; or
(iii) $1,200,000 if paid in full on or before 12/31/2005; or
(iv) $1,250,000 if paid in full on or before 12/31/2006, or
(v) $1,300,000 shall be paid in full on or before
12/51/2007,without any grace period or further extension of time,
(b) Not rithstanding the payment schedule set forth in Section
2(a) above, payment of all Mitigation Funds must be made prior to issuance of a
grading permit or any development activity that results in physical disturbance of
Property or vegetation thereon. The amount due and payable shall be in
accordance with the schedule set forth in Section 2(a).
(c) The first $240,000 of Mitigation Funds paid shall be used to
satisfy mitigation requirements for Fringe-toed Lizard impacts, and shall be paid
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to the Center for Natural Lands Management ("CNLM") (current San Diego
County address: 425 E. Alvarado Street, Suite H,Fallbrook, CA 92028).
(d) The balance of Mitigation Funds shall be paid to CNLM,
provided it accepts, in writing, the following conditions (collectively "Mitigation
Fund Conditions"):
(i) At least 80% of the funds shall be used to fund the cost
of preserving , by way of acquisition, conservation easement, or other
legally binding method,Milk-vetch habitat("Mitigation Property");
(ii) The Mitigation Property and acquisition costs shall be
approved by the Service;
(iii) Ownership of the Mitigation Property shall be vested
in a non-profit or public entity, subject to conditions, recorded in the chain
of title, which require that it be maintained as permanently protected,
natural habitat and open space for plant and wildlife purposes;
(iv) The balance of funding shall be set aside in an
endowment account approved by the Service and shall be used to fund the
ongoing management and preservation of the Mitigation Property;
(e) PSIC shall have fully satisfied its Funding Option obligations
upon payment of the Mitigation Funds in accordance with Section 2 and delivery
of a written document evidencing the CNLM's acceptance of the mitigation fund
conditions to Petitioners. Thereafter, PSIC shall have no obligation or liability
with respect to use of the Mitigation Funds.
(f) Should CNLM be unwilling or unable to accept its portion of
the Mitigation Funds in accordance with the Mitigation Fund Conditions set forth
in Section 2, PSIC shall deposit the Mitigation Funds into an account designated
and/or approved by Petitioners and the Service. Deposit of the Mitigation Funds
into the designated account shall fully satisfy the Funding Obligations herein.
Thereafter, PSIC shall have no obligation or liability with respect to use of the
Mitigation Funds.
(g) PSIC shall provide Petitioners written notice of any payment
of Mitigation Funds in accordance with Section 2 within.14 days of its having
been made and shall provide Petitioners with a copy of the written document
evidencing CNLM's acceptance of the Mitigation Fund Conditions within 14 days
of its execution.
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Jao , 21 . 2004 3:41PM No -7743 P - 4
3. Habitat Option.
As an alternative to the,Funding Option, PSIC shall have the option of
purchasing the Mitigation Property and providing a reduced level of Mitigation
Funds in accordance with the following conditions;
(a) The Mitigation Property shall be approved by the Service as Milk-
vetch habitat and appropriate off-site mitigation habitat for the Project;
(b) Ownership of the Mitigation Property shall vest in a non-profit or
public entity, subject to conditions that require it be maintained as permanently
protected, natural habitat and open space;
(e) A minimum of 400 acres of Milk-vetch habitat shall be purchased,
provided a lesser amount of acreage may be purchased if approved by the Service
based on its determination that the habitat value of the acreage proposed to be
purchased off-sets the reduction in total acreage;
(d) Ownership of the Mitigation Property shall vest in the designated
public or private entity prior to issuance of a grading permit for the Project or any
development activity that results in physical disturbance of the Property or
vegetation thereon;
(e) PSIC shall fund an endowment for management of.the Mitigation
Property in an amount approved by the Service. The endowment funding shall be
paid to the non-profit or public entity designated by the Service. The endowment
shall be funded by PSIC no later than thirty(30) days from the close of escrow for
the Mitigation Property, or the time period designated by the Service, whichever is
shorter;
(f) PSIC shall prepare a management plan for the Mitigation Property if
requested by the Service. If the Service does not request preparation of a
management plan, Petitioners shall have no right to compel PSIC to prepare a
plan.
(g) In addition to the Milk-vetch habitat requirements described in
Section 3(a) through 3(0 above, PSIC shall satisfy mitigation requirements for
Fringe-toed Lizard impacts by paying $240,000 to CNLM prior to issuance of a
grading permit for the Project or any development activity that results in physical
disturbance of the Property or vegetation thereon;
(h) PSIC shall complete the purchase of Milk-vetch habitat and fund the
endowment for management of the habitat no later than December 31, 2007. If
PSIC fails to complete the purchase of Milk-vetch habitat by December 31, 2007,
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this Habitat Option shall expire and PSIC shall be obligated to comply with the
Funding Option;
(i) PSIC shall provide Petitioners with written notice of its intent to
purchase Milk-vetch habitat at least 30 days prior to the close of escrow for the
habitat, and the written notice shall include a description of the property size and
location, information regarding the physical characteristics of the property which
qualify it as Milk-vetch habitat and contact information for the Service
representative that has approved or has asked to approve the purchase. In
addition, PSIC shall provide Petitioners with written notice of its payment of
Fringe-toed Lizard mitigation funds and payment of endowment funds within 14
days of their having been made.
4. The Milk-vetch and Fringc-toed Lizard mitigation obligations herein
shall be binding on PSIC, and any successors or assigns to existing or future
permits and entitlements constituting all or a portion of the Project Approvals
and/or the Project which is the subject of this action. PSIC shall provide a copy of
this Agreement to all successors and assigns. The Milk-vetch and Fringe-toed
Lizard mitigation obligations herein shall be mandatory conditions of proceeding
forward with any portion of the approved Project as currently approved or as may
be amended in the future and shall be made fully enforceable by way of either (a)
adoption by the City of Palm Springs as Project conditions and/or (b) recordation
of a Memorandum of Agreement or other document reflecting the mitigation terms
of this Agreement in the chain of title for the Property.
5. Prior to or no later than January 30 , 2004 or seven days from the
date this Agreement is executed by all parties, whichever occurs later, PSIC shall
pay Petitioners' attorney's fees and costs in the total amount of$37,832.
6, Within seven (7) days of receipt of confirmation that the mitigation
conditions of this Agreement have been adopted by the City as conditions of
Project approval or that a Memorandum of Agreement or other document reflecting,
the terms of this Agreement has been recorded in the chain of title for the Property,
Petitioners shall file a dismissal of the Lawsuit with prejudice, Thereafter,
Petitioners shall not seek judicial review of the July 16, 2003 Project.
7, Provided that Respondents, their heirs or assigns are not in default of
the terms of this Agreement and provided that the Milk-vetch and Fringe-toed
Lizard mitigation obligations of this Agreement are not altered, Petitioners shall
not seek judicial review of additional permits or authorizations which may be
required to develop the Project, including, but not limited to, permits required by
the federal Clean Water Act and the California Fish and Game Code.
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Jan -21 . 2004 3:42PM No -7743 P- 6
8. Petitioners agree that the purpose of their challenge to the Project
Approvals is to secure additional mitigation for the disturbance of habitat and the
effect upon species located on the Property which goal has been accomplished as a
result of this Agreement. Therefore, in the event Respondents, their heirs or
assigns modify or change the Project, Petitioners agree to not file suit challenging
the modification or change, including any additional approvals that may be
required, based upon direct, indirect or cumulative effects on species or their
habitats, provided that: (i)Respondents, their heirs and assigns are not in default of
the terms of this Agreement, (ii) Milk-vetch and Fringe-toed Lizard mitigation
obligations of-this Agreement are not altered, (iii) the total development acreage
does not increase and (iv) the modified or changed uses remain residential and/or
resort recreational . The provisions of this Section 8 shall expire after the passage
of ten years from the date this Agreement is executed by all parties.
9. PSIC's compliance with the Funding Option or Habitat Option shall
be in lieu of the $31,200.00 mitigation fee for Milk vetch impacts imposed as a
condition of the July 16, 2003 Project Approvals, and shall also fully satisfy PSIC's
obligations with respect to mitigation of Fringe-toed Lizard impacts. However, this
Agreement does not alter or relieve PSIC of responsibility for all other mitigation
measures imposed as a condition of the Project Approvals.
10. All notices to be given under this Agreement shall be in writing and
either:
(a) Sent by certified mail, return receipt requested, in which case notice
shall be deemed delivered three (3)business days after deposit, postage prepaid in
the United States Mail;
(b) Sent by a nationally recognized overnight courier, in which case
notice shall be deemed delivered one (1) business day after deposit with this
courier; or
(c) By telecopy or similar means, if a copy of the notice is also sent by
United States Certified Mail, in which case notice shall be deemed delivered on
transmittal by telecopier or other similar means provided that a transmission
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Jan.21 . 2004 3:42PM No •7743 P- 7
report is generated by reflecting the accurate transmission of the notices, as
follows:
If to the Center For Biological Diversity and Sierra Club!
Kassie Siegel, Gsq,
Center For Biological Diversity
P.O. Box 493
Idyllwild, CA 92549
(909) 659-6053 (Phone)
(909) 659-2484 (Fax)
Sierra Club
c/o Joan Taylor
1800 S. Sunrise Way
Palm Springs, CA 92264
(760) 778-1101 (Phone)
(760) 323-3624 (Fax)
With a copy to:
D. Wayne Brechtel, Esq.
Worden, Williams,Richmond,Brechtel & Kilpatrick,APC
462 Stevens Avenue, Suite 102
Solana Beach, CA 92075
(858)755.6604 (Phone)
(858) 755-5198 (Fax)
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Jan - 21 . 2004 3:42PM No 7743 P • B
If to P.S. Investment Company, LLC:
P,S. Investment Company, LLC
c/o Pat Blew
1804 The Strand
Manhattan Beach, CA 90226
410-991-6326
410-757.5841
410-757-8952 (Tax)
With a copy to:
Paul T. Selzer,Esq.
Selzer, Ealy,Hemphill &Blasdel,LLP
777 E. Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92260
(760)320-5977 (Phone)
(760)320-9507 (Fax)
If to the City of Palm Springs:
City of Palm Springs
3200 Tahquitz Canyon Way
Palm Springs, CA 92262
(760)323-8204 (Phone)
(760)322-$332 (Fax)
These addresses may be changed by written notice to the other party,
provided that no notice of a change of address shall be effective until actual
receipt by the parties of the notice. Copies of notices are for informational
purposes only, and a failure to give or receive copies of any notice shall not be
deemed a failure to give notice,
11, Respondents and Petitioners have cooperated in the drafting of this
Agreement and any vale of construction based on the drafter's identity shall not be
applied to any ambiguity in this Agreement.
12. Respondents and Petitioners shall act in good faith and shall tape all
further actions reasonably necessary to effectuate the letter and the spirit of this
Agreement.
13, This Agreement and all rights and obligations arising out of it shall
be construed in accordance with the laws of the State of California. The parties to
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Jan.21 . 2004 3:OPM No•1143 P - 9
this Agreement shall have the right to seek specific performance in addition to any
other remedies allowed by law.
14. Any litigation arising out of this Agreement shall be conducted only
in Riverside County, California.
15. The prevailing party in any litigation brought to enforce or interpret
this Agreement shall be entitled to recover its attorneys' fees and all costs of
litigation including, but not limited to, expert witness fees, in addition to any other
relief to which it may be entitled
16. This Agreement contains the entire agreement and understanding
concerning the Palm Springs Classic Project and Palm Springs Classic Approvals
described herein and supercedes and replaces all prior negotiations or proposed
agreements, written or oral. Each of the parties hereto acknowledges that no other
party, nor the agents nor the attorneys for any party, has made any promise,
representation or warranty whatsoever, express or implied, not contained herein, to
induce the execution of this Agreement and acknowledges that this Agreement has
not been executed in reliance upon any promise; representation or warranty not
contained herein.
17. This Agreement may not be amended except in a writing signed by
all of the parties hereto.
IS. Except as set forth above, all parties shall each bear their respective
costs and attorney's fees incurred in all of the legal proceedings between them
including the finalization of this Agreement and of the future actions required by
this Agreement,
19, Respondents and the Petitioners hereby acknowledge that they have
jointly negotiated the terms of this Agreement with assistance of legal counsel and
are executing this Agreement with the consent, and upon the advice, of their own
counsel.
20. Except as to the express terms herein, this Agreement shall in no
way limit the discretion of the City of Palm Springs or the City Council of Palm
Springs as to any future determinations or approvals concerning the Project or the
Property.
21. Each individual signing this Agreement represents and warrants that
he or she has been authorized to do so by proper action of the party on whose
behalf he or she has signed. PSIC, through its designated representative, further
represents that it has authority to carry out the terms and conditions of this
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Jao ,21 . 2004 0:43PM No ,7743 P . 10
Agreement and that there are no other entities or individuals required to ensure
compliance with the terms of this Agreement.
22. This Agreement may be signed in one or more counterparts and,
when all parties have signed the original or a counterpart, such counterparts
together shall constitute one original document.
23, This Agreement is executed by way of a compromise of disputed
claims and does not constitute and is not to be construed as an admission of fault
by any party.
Dated: THE SIERRA CLUB
By
Its
SIGNATURES CONTINUED ON NEXT PAGE
SenlemeMAgrammt(FR9AI.) 10
ent:by: Worden,Williams,Richmond 1 858 755 5198; 01 /21 /2004 9:52; #443; Page 2/3
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Dated: CENTER FOR$tOLOGTC 4L DIVERSITY
BY �,� /��
Its
SIGNATURES CON rNUED ON NEXT PAGE
Smlammt.a��ccri}enr(FI�nLl.doc I I
Received Tlme Jan 21 • 9 38A1M
Dated: CITY OF PALM SPRINGS
Attest:
By
City Clerk Its City Manager
SIGNATURES CONTINUED ON NEXT PAGE
SettlementAgreementUM TAL) 12
JRN 14 2004 2: 45PM HP LRSERJET 3200 p. 2
DI-14-04 11:47 From-SMER,EALYJEMPHILI L BLASDEL,LLP +M-M-0507 T-005 P.02/02 F-022
Dated: Y P.S. INVESTMENT COMPANY, LLC
ay
SIGNATURES CONTINUED ON NEXT PAGE
SenlemenlAgreemenl(Fp7A1,) I3
Received Time Jao , 14, 1 : 08PM
Dated: D.T. PALM SPRINGS
INTERCONTINENTAL GOLF CENTER
ENTERPRISES, LTD., a California Limited
Partnership
By D.T. PALM SPRINGS
INTERCONTINENTAL GOLF CENTER,
INC., a Florida Corporation
By
ephen Mitchell
Its (/ ( Co_�JA•�r✓) � 4
SIGNATURES CONTINUED ON NEXT PAGE
SettlementAgeement(FINAL).doc 14
;ant by: Worden,Williams,Richmond 1 858 755 5198; 01 /21 /2004 9:52; 4443; Page 3/3
APPROVED AS TO FORM:
Dated: 1� / 9 `/ WORDEN, WILLIAMS, RTCHMOND,
BRECHTEL & KILPATRTCK, APC
By
D. Wayne Errerlatel.
Attorneys for The Center For Biological
Diversity and The Sierra Club
SIGNATURES CONTINUED ON NEXT PAGE
seitieFnencAy�.etncn[(FINAL)I rlrc l5
Received Time Jan • 21 . 9: 38RM
APPROVED AS TO FORM:
Dated: SELZER,EALY, HEMPMLL
&BLASDEL, LLP
By
Paul T.
Attorneys for Respondents
END OF SIGNATURE PAGES
SettlementAgreement(FINAL) 16
MINUTE ORDER NO.
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, APPROVING A SETTLEMENT AGREEMENT BY AND
BETWEEN THE SIERRA CLUB, CENTER FOR BIOLOGICAL
DIVERSITY,PALM SPRINGS INVESTMENT COMPANY,AND CITY OF
PALM SPRINGS RELATED TO CLAIMS REGARDING THE PALM
SPRINGS CLASSIC PROJECT (CASE 5.0666-PDD-231)
I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement by and
between the Sierra Club / Center for Biological Diversity, and Palm Springs Investment
Company / City of Palm Springs related to claims regarding the Palm Springs Classic
Project was adopted by the City Council of the City of Palm Springs, California, in a meeting
thereof held on January 21, 2004.
PATRICIA A. SANDERS
City Clerk