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Tradition Club Assoc, Winchester Dev Co & State Fish & Game/Settlement Agr 1998This SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made this day of July, 1998 by and among THE TRADITION CLUB ASSOCIATES, LLC ("Tradition"), WINCHESTER DEVELOPMENT COMPANY, LLC ("Winchester"), STATE OF 1111-0-1 1, 1 111, 1111, wo 11 � 11 1 ii , I I , III I I ill I 1 11 11 '1111' QUINTA and the CITY COUNCIL OFT CITY OF LA QUINTA (collectively, the "City"). INKINKA11 1. On or about July 23, 1997, Tradition filed an action against the Department entitled Tradition Club Associates, LLC v. The California Department of Fish and Game, Riverside County Superior Court, Case No. INC 002964. Tradition seeks declaratory and injunctive relief and has alleged that an application to the Department pursuant to California Fish and Game Code section 1603 is not required for Tradition to proceed with its project in the City (the "Project"). The Department has denied each of the foregoing allegations, and has asserted affirmative defenses to the complaint. On or about August 29, 1997, the Department filed a cross -complaint in this action against Tradition and Winchester. The Department has alleged that Tradition and Winchester have violated Fish and Game Code section 1603 in connection with the Project, and seeks civil penalties and injunctive relief Tradition and Winchester have denied each of the foregoing allegations, and have asserted affirmative defenses to the cross -complaint. The complaint and the cross -complaint in Case No. INC 002964 are collectively referred to herein as the "Civil Action." 2. On or about July 30, 1997, the Department filed an action against the City entitled State of California Department of Fish and Game v. City of La Quinta, California, et. al., Riverside 6085291.8 Department named Tradition as a Real Party in Interest in the CEQA Action. On or about August 26, 1997, the Department filed a First Amended Petition for Writ of Mandate. In the CEQA Action, the Department has alleged that the City, in approving a Mitigated Negative Declaration ("MND") for the Project and approving the Project, violated the California Environmental Quality Act, Public Resources Code section 21000 et. seq. ("CEQA") by failing to prepare an EIR, failing to adopt revisions to the Project that would mitigate the environmental impacts of the Project to the point of insignificance, failing to circulate the MND, failing to consult with the Department concerning the Initial Study, and failing to adequately evaluate the effect of the Project on wildlife resources in the Initial Study. The City and Tradition have denied each of the foregoing allegations, and have asserted affirmative defenses to these claims. The Riverside County District Attorney's Office filed the following actions ("Criminal R%%Wlrf- • • (a) People of the State of California v. Craig C. Bly , Case No. INM 071016, filed M (b) People of the State of California v. Michael S. Roe, Case No. INM 071041, filed (c) People of the State of California v. David M. Allen, Case No. INM 071020, filed on or about May 28, 1997. 6085291.9 2 (d) People of the State of California v. David M. Allen, Case No. ESTM 073220, filed (e) People of the, State of California v. Lane Stave, Case No. INM 073220, filed on or 33�*A ��� The complaints allege violations of certain sections of the Fish and Game Code and/or the Penal Code. Each defendant has denied each of the allegations. 4. The parties believe that it would be in their respective best interests to settle their differences on the terms specified in this Agreement. �=JKU NOW, THEREFORE, in consideration of the above Recitals and the agreements contained herein, it is mutually agreed upon by and among the parties hereto as follows: The Fence and Conservation Land. The parties agree as follows: (a) As described herein, at the behest of the Department, Tradition shall diligently pursue all necessary City permits and other approvals to build a steel, 8 foot tall, chain link fence as generally depicted at a location identified in Exhibit A, attached hereto and incorporated by reference into this Agreement (the "Fence"). Nothing in this provision shall prevent the City in its approval process from altering the location of the Fence to below the elevation shown in Exhibit A; provided, however, that if any such alteration of the location of the Fence is not approved by Tradition and the Department, the City may deny the applications. If 6085291.8 3 Tradition obtains the necessary permits, Tradition shall build the Fence at its sole � Department as a joint beneficiary. The parties acknowledge that (1) the dedication is valid and (2) the ®pen Space Area remains subject to the City's land (c) If the City issues all necessary permits and approvals for construction of the Fence, the City and the Department shall grant to Tradition an encroachment permit over such land that is necessary for construction and maintenance of the Fence. (d) The Department agrees that each acre of revegetation of desert woodland within the Project shall constitute half an acre of mitigation for desert woodland. The area of revegetation within the Project that constitutes mitigation is identified in the map attached hereto as Exhibit E and incorporated herein by this reference. 2. Permit Processing. (a) Within ten (10) days after the execution date of this Agreement or the dismissal of the Criminal Actions, whichever is later, Tradition shall apply to the City for City permits to implement the construction and maintenance of the Fence. The 6085291.8 4 Department shall cooperate with and support any Tradition applications consistent with this Agreement. (b) The following City approvals would be necessary in order to implement the construction and maintenance of the Fence: (i) amendment of the Hillside Conservation Ordinance; (ii) a conditional use permit; (iii) amendment of Conditions Nos. 73-74 of the tract map and the conditions of approval of Conditional Use Permit 96-031 to modify the open space dedication; and (iv) a building permit. The parties acknowledge that the conditional use permit and the amendment to the conditions of approval of Conditional Use Permit 96-031 must be considered by the Planning Commission and City Council at public hearings. No public hearing is required for issuance of the building permit. (c) The City and Tradition are not conceding a fence is necessary for this or any other project in the City, and all parties agree that each project has to be evaluated on its own merits. The Department agrees to not argue in future projects that the City or Tradition have conceded that a fence is necessary. Further, the Department agrees that it will not refer to the fencing done pursuant to this Agreement, if any, in any written comments or oral testimony in any hearing before a City body related to any other project; provided, however, that nothing in this provision prohibits the Department from referring to the fence in a good faith response to a question by any City council member or planning commissioner. Nothing in this paragraph 6085291.8 shall prevent the Department from recommending a fence as a mitigation measure in any other project. (d) By entering into this Agreement, the parties acknowledge that the City has not waived or limited its discretionary powers or committed to approving the Fence. Nor has the City granted any entitlement to Tradition, Winchester, the DeDartment. or to any other Darty. to construct the DroDosed fencine. (e) The parties acknowledge that: (1) the dedication described in Paragraph 1 (b) grants property rights to the Department; and (2) the City reserves its full land use regulatory powers, including but not limited to its powers to apply and enforce its I M1 3. Final Permit Action: If any of the applications for the Fence are denied, for any reason, the Department agrees that it will not pursue any legal action at law or equity to reverse the City's action. Regardless of whether the City approves construction of the Fence, the obligation of Tradition and the City as set forth in Paragraph I (b) nonetheless shall remain and the dedication of the Open Space Area shall be modified as set forth in NME-M-9 11 on 4. Letter of Credit: In the event that the City for any reason does not approve the applications for the Fence, then Tradition shall pay to the Department Four Hundred Fifty Thousand Dollars ($450,000) to be used as set forth herein. This amount is an estimate of the reasonable cost of constructing the Fence, plus ten (10) percent of this cost. Within ten (10) days after execution of this Agreement, Tradition shall issue a letter of credit for 6095291.8 6 that amount to the Department. Upon completion of the construction of the Fence and Tradition. In the event that the applications for the Fence are not approved, Tradition shall promptly notify the Department of such event and the letter of credit shall become due and payable within thirty (30) days after the date the applications for the Fence are not approved. The Department shall deposit the money in an interest bearing Special Deposit Account in the Fish and Game Preservation Fund ("Account") to be used as set forth herein. In the event that the letter of credit is paid to the Department and any government agency requires a fence or other avoidance barrier for the Project, then the Department shall pay to Tradition an amount equal to the actual cost of implementing such fence or barrier, up to but not exceeding the Four Hundred Fifty Thousand Dollars ($450,000) plus interest in the Account. The Department shall maintain the Account for five (5) years after the Account is established. At the end of five years, the Department shall transfer any remaining money including interest in the Account to the Wildlife Conservation Board Fund. The Department agrees to accept as mitigation for the Project the obligations of Tradition under this Agreement, and further agrees that it will not advocate or recommend any other mitigation for the Project to any other government agency or other entity. 5. Condition Precedent: This Agreement is contingent upon and shall become operative only after the Riverside County District Attorney dismisses the Criminal Actions in their entirety, with prejudice. 6085291.8 7 6. Further Acts: Upon happening of the condition precedent in Paragraph 5, the parties • (a) Within thirty (30) days after the City takes all necessary actions to approve the fencing, including the issuance of all necessary permits, or the dismissal of the Criminal Actions, whichever is later, Tradition shall begin construction of the Fence and shall diligently pursue construction to completion. Thereafter, Tradition will attempt to make maintenance of the Fence a permanent obligation of the homeowner association. In the event the homeowner association will not take responsibility for the Fence, the City, Tradition and the Department will hold good faith negotiations to arrange for Tradition to permanently maintain the Fence. Such arrangements shall include a reasonable maintenance fund that Tradition shall establish. (b) Within thirty (30) days after the execution of this Agreement or the dismissal of the Criminal Actions, whichever is later, Tradition and the City shall modify the dedication of the Open Space Area referenced in paragraph 1, by recording an amendment to the tract map. (c) Within ten (10) days after the execution of this Agreement or the dismissal of the Criminal Actions, whichever is later, Tradition and the Department shall direct their attorneys to execute and file a Request for Dismissal of the complaint and cross -complaint, with prejudice, in the Civil Action. Tradition shall provide a conformed copy of this Request for Dismissal to counsel for the Department. 6085291.8 8 (d) Within ten (10) days after the execution of this Agreement or the dismissal of the Criminal Actions, whichever is later, the Department shall direct its attorney to execute and file a Request for Dismissal of the CEQA Action, in its entirety, with • • •I Pill 1111111111111111111111• Attorney's dismissal of the Criminal Actions in their entirety, with prejudice. In the event that the Riverside County District Attorney refuses for whatever reason to dismiss the Criminal Actions in their entirety with prejudice, this Agreement (f) From and after the date of the execution of this Agreement or the dismissal of the Criminal Actions, whichever is later, the Department, Tradition and Winchester shall instruct each of their respective and appropriate personnel that they shall not disparage, directly or indirectly, Tradition, Winchester or the Department or any of their employees and agents, for any matter relating to the Tradition Golf Course Project, however nothing in this section shall prevent any employee or agent of the Department from carrying out his or her lawful duties or any owner or employee of Tradition and Winchester from exercising their First Amendment rights to comment on actions of the Department as a public agency. Within ten (10) days after the execution of this Agreement or the dismissal of the Criminal Actions, whichever is later, Tradition and Winchester shall send to their employees and agents and the Department shall send to its employees and agents 6085291.8 9 ME -1MFINTE1! 11 1111111I111I11 111111 1 MORS lip111111 •1. 1 - I 11111111111111111 dismissal of all lawsuits referred to in paragraph 6. Upon satisfaction of these conditions, (a) Release by Tradition: In consideration for the agreements as set forth herein, Tradition, on behalf of itself, and its principals, officers, directors, agents, representatives, attorneys, successors, assigns, parent corporations, subsidiaries and all related entities, does hereby release the Department, its officials, employees, agents, attorneys, and other representatives, of any and all claims, actions, obligations and liabilities, of any nature whatsoever, known or unknown, arising out of, based upon, or relating to the Civil Action, the CEQA Action, and the Criminal Actions. (b) Release by Winchester: In consideration for the agreements as set forth herein, Winchester, on behalf of itself, and its principals, officers, directors, agents, representatives, attorneys, successors, assigns, parent corporations, subsidiaries and all related entities, does hereby release the Department, its officials, employees, agents, attorneys, and other representatives, of any and all claims, actions, obligations and liabilities, of any nature whatsoever, known or unknown, arising out of, based upon, or relating to the Civil Action, the CEQA Action, and the Criminal Actions. 6085291.8 10 I I III I I � 11 1 -MI R 11 N I ME TOM IMMMM I V -3 M-4 Man t F, ff MITO M., Winchester, and their principals, officers, directors, agents, representatives, attorneys, successors, assigns, parent corporations, subsidiaries and all related entities, of any and all claims, actions, obligations and liabilities, of any nature whatsoever, known or unknown, arising out of, based upon, or relating to the (d) Mutual Release by the Department and the City: In consideration for the agreements as set forth herein, the Department, on behalf of itself, its officials, employees, agents, attorneys, and other representatives, and the City, on behalf of its council members, directors, mayors, managers, city managers, officials, boards, employees, agents, attorneys, and other representatives, do hereby mutually release each other of any and all claims, actions, obligations and liabilities, of any nature whatsoever, known or unknown, arising out of, based upon, or relating to the CEQA Action. (e) Waiver of Civil Code Section 1542: By releasing and forever discharging claims both known and unknown as above provided, the Department, Tradition and Winchester expressly waive as to the Civil Action, the CEQA Action and the Criminal Actions any rights under California Civil Code Section 1542, which 6085291.8 11 The Department, "Tradition and Winchester each waive and relinquish any rights and benefits which it has or may have under Section 1542 of the Civil Code of the State of California as to the Civil Action, the CEQA Action and the Criminal Actions. The Department, "Tradition and Winchester each have performed a full and complete investigation of the facts pertaining to the settlement. Nevertheless, each acknowledges that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this Agreement, but it is its intention hereby to fully and finally forever settle and release any and all matters, disputes and differences, known or unknown, suspected and unsuspected, which now exist, may exist or heretofore have existed, as against the other parties to this Agreement relating in any way to the Civil Action, the CEQA Action or the Criminal Actions and, in furtherance of this intention, the release herein given shall be and remain in effect as a full and complete general release notwithstanding discovery or existence of any such additional or different facts. 6085291.8 12 (i) Consultation with Counsel: By initialing below, the Department, Tradition and Winchester each acknowledge that it has specifically reviewed with its attorney the meaning and effect of the releases set forth in subparagraph (a) and (b), the language in Civil Code Section 1542 quoted in subparagraph (c), and the waiver contained in subparagraph (c), its attorney has fully explained the impact of these provisions, and it kno `ngly accepts the risks associated with these provisions., T ITI®N WINCHESTER Execution Not an Admission: By entering into this Agreement, no party hereto admits that the claims or contentions of the other were or are valid or meritorious. Each party hereto has in the past denied and continues to deny the claims, assertions, allegations, and contentions of the others and this Agreement and the underlying settlement are strictly for the purposes of compromising a dispute. 6085291.8 13 (f) Consultation with Counsel: By initialing below, the Department, Tradition and Winchester each acknowledge that it has specifically reviewed with its attomey the meaning and effect of the releases set forth in subparagraph (a) and (b), the language in Civil Code Section 1542 quoted in subparagraph (c), and the waiver contained in subparagraph (c), its attorney has fully explained the impact of these provisions, and it knowingly accepts the risks associated Yn'th these provisions. TRADITION WINCHESTER DEPARTMENT Execution Not an Admissi By entering into this Agreement, no party hereto admits that the claims or contentions of the other were or are valid or meritorious. Each party hereto has in the past denied and continues to deny the claims, assertions, allegations, and contentions of the others and this Agreement and the underlying settlement are strictly for the purposes of 6085291.8 13 Consultation with Counsel-• below,Department,.• • Winchester each acknowledge that it has specifically reviewed with its attorney the meaning and effect of the releases set forth in subparagraph (a) and (b), the language in Civil Code Section 1542 quoted in subparagraph (c), and the waiver contained in subparagraph (c), its attorney has fully explained the impact of these provisions, and it knowingly accepts the risks associated with these provisions. • DEPARTMENT By entering into this Agreement, no party hereto admits that the claims or contentions of the other were or are valid or meritorious. Each party hereto has in the past denied and continues to deny the claims, assertions, allegations, and contentions of the others and this Agreement and the underlying settlement are strictly for the purposes of 6085291.8 13 Tradition shall indemnify, defend and hold harmless the City, its officers, employees, representatives, and agents, from and against any losses, claims, demands, actions, or causes of action of any nature whatsoever, arising out of or in any way connected with the Fence, including costs of suit and reasonable attorneys' fees. 10. Advice of Counsel: The undersigned and each of them hereby declare and represent that in effecting this Agreement, each has received full legal advice as to their respective legal rights and each hereby certifies that he, she, or it has read all of this Agreement and fully understands the same. 11. Applicable Law: The parties hereby agree that this Agreement is made, executed and entered into and is intended to be performed within the State of California and that this is a California agreement and is to be construed as such. 12. Integratio : This Agreement contains the entire agreement and understanding concerning the subject matter herein and supersedes and replaces prior negotiations and agreements between the parties, whether oral or written. Each of the parties acknowledge representation by counsel throughout all negotiations which preceded the execution of this document, and the document has been executed with the consent and upon the advice of counsel. Each 6085291.8 14 qIM TI-JTrd U-S "wr1rom -me , "��* g I , I I promise, representation or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument. 13. Warranty of No Undue Influence: The parties hereby warrant and represent that they are not aware of any duress, menace, fraud, coercion, or undue influence which has caused any party to enter into this Agreement. Each of the parties hereby warrants and represents that it is not aware of any acts or conduct by which, in executing this Agreement, the mind of any parties hereto has Each party shall be responsible for its own costs, attorneys' fees, and expert witness fees, incurred in connection with each of the above -referenced actions, and in any proceeding at law or in equity to enforce any of the provisions or rights under this Agreement. Nothing in this paragraph shall alter the indemnification/defense obligation 15. Authorization: Each person executing this Agreement warrants that he or she has full authorization to execute this Agreement on behalf of the entity he or she is signing on behalf of. 6085291.8 15 •, • !' • [MMOMM �.. • .• •' '• 1, f� LG• •.:''. This Agreement may be executed in one or more counterparts, each of which shall be •.. • • r' r This Agreement shall bind and inure to the benefit of the parties' successors, assigns, and transferees. 19. Time Is of The Essence: Time is of the essence in the performance of this Agreement. 6085291.8 16 IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement and w EA a 2111TONTA a 0M. IM 132 K61 " I I • A. TOSTA JULIA L. • 0 •• 1111 11111 1 Is M Timothy A. Tosta. Attorneys for The Tradition Club Associates ROEMER, HARNIK & NETHERY, LLP BRIAN S. HARNIK By: Brian S. Harnik Attorneys for The Tradition Club Associates [SIGNATURES CONTINUED ON NEXT PAGE] 6085291.8 17 IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement and DATED: , 19SE DATED: '19SE TIMOTHY A. TOSTA 1L14 L. BOVi/r- 0 -0 THE TRADITION CLUB ASSOCIATES, a limited liability company By: WINCHES am Timothy A. Tosta Attorneys for The Tradition Club Associates Brian S. Harnik Attorneys for The Tradition Club Associates IRWIN "S r_1 COMPANY, LLC [SIGNATURES CONTINUED ON NEXT PAGE] 6085291.8 17 IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement and 1711-0 =0 THE TRADITION CLUB ASSOCIATES, a limited liability company 0 WINCHESTER DEVELOPMENT COMPANY, LLC IN FEW, 2 TIMOTHY A. TOSTA JULIA L. BOND ROEMER, HARNIK & NETHERY, LLP BRIAN S. HARNIK By: Brian S. Harnik Attorneys for The Tradition Club Associates [SIGNATURES CONTINUED ON NEXT PAGE] 608529L8 17 IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement and Release. DATED: 1998 F-1129.1MUTAMI I I I BAKER & McKENZIE TIMOTHY A. TOSTA JULIA L. BOND THE TRADITION CLUB ASSOCIATES, a limited liability company In MITHOUN *"IW'v I ate 13 IMA a 911,11111 if q! � 1 iiil1iil � 1 M By: Timothy A. Tosta Attorneys for The Tradition Club Associates ROEMER, HARNIK & NETHERY. LLP BRIAN S.-HARNIK By: Brian S. Harnik Attorneys for The Tradition Club Associates [SIGNATURES CONTINUED ON NEXT PAGE] 6085291.8 17 DATED: �' , 1998 I_�»Z�]�f�•7-� • • ' It DANIEL E. LtNGREN, Attorney StateGeneral of the of California RODERICK E. WALSTON, Chief Assistant Attorney THEODORA i ' Assistant Attorney BRIAN HEMBACHER Deputy Dy: Brian W. Iiembacher of Fish and Game [SIGNA'TURES CONTINUED ON NEXT PAGE] 6085291.8 18 DATED: 1998 CITY OF LA QUINTA AND CITY COUNCIL OF THE TY OF LA QUINTA By: KayoV U APPROVED AS TO FORM: ATTE RUTAN & TUCKER, LLP M. KATHERINE JENSON AUNDRA L. JUHOLA, City Clerk By: A katherile Jenson Attorneys for City of a Quinta and City Council of the City of La Quinta By: &�— d�2�zz—td Dawn Honeywell ' City Attorney, City of La Quinta 6085291.8 19 -!� /., .� k, I I \ - . �' -'/', /' tf — , r,\ / , I ��- a`, i / i �� �na> , �_� 1 A - i— ' I t; � , i I - : - ': - 1•z' - — _ ___ - - _ F�---��._ f/ _` _" i / %---"�O r r �� �' h / O� / \\ j 1 ''� r /�L - / - �6�� ,�� `.,r !!'-/� ! �"'_�� Off!\�__ \ 1 /IJ __�`` _ `f,�\ \W �i� 1 %/f //�I j/I. i i ?�'� ij oJ, ..`-1 `� l ` / �J / .�_. "/,�o� .%/ `'-_"\,\`\_ / r '-,'�.` 1 ��\ `�I, `1 �-'y; �/1f 1{ I r/rJr i 1 ^`J i pr C" /Jj - �! f �� g _��c{ �� ��� - l �� °�v r f i It 1 1' °r f� / �/ r //�� ��•� // `� I �_ �>!f r/ _ ,y1 1 e g __r` \ter j// ,;� t I� _ , : - � ,` . �- /, , 7" CC /J ! ! `�. a`\\•� ��`_i/ �/ I s I rf `'\ �.�—_-,., ' t�09. 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DATE 12µAR98 66d_� - i 0 100 200 400 600 PWnn+ng July___, 1998 Employees and Agents Department of Fish & Game State of California Re: Tradition Golf Course Project Dear [Employee]: This letter is to notify you that the Department of Fish & Game ("Department") has reached a settlement with the Tradition Club Associates, LLC ("Tradition") and Winchester Development Company ("Winchester") regarding the litigation over the Tradition Golf Course Project in the City of La Quinta. As part of that settlement, the Department has agreed to not disparage Tradition or Winchester for any matter relating to this Project. Accordingly, you are hereby instructed to not disparage, directly or indirectly, Tradition, Winchester, or any of Tradition or Winchester's employees or agents, for any matter relating to the Tradition Golf Course Project; however, nothing shall prevent you from carrying out your lawful duties. Sincerely, Department of Fish & Game State of California 6085324.1 July---, 1998 Employees and Agents Tradition Club Associates, LLC [Winchester Development Company] Re: Tradition Golf Course Project Dear [Employee]: This letter is to notify you that Tradition [Winchester] has reached a settlement with the Department of Fish and Game ("Department") regarding the litigation over the Tradition Golf Course Project in the City of La Quinta. As part of that settlement, Tradition [Winchester] has agreed to not disparage the Department for any matter relating to this Project. Accordingly, you are hereby instructed to not disparage, directly or indirectly, the Department, or any of the Department's employees or agents, for any matter relating to the Tradition Golf Course Project; however, nothing shall prevent you from exercising your First Amendment rights to comment on actions of the Department as a public agency. Sincerely, Tradition Club Associates, LLC [Winchester Development Company] 6082830.1