2017 Alvariz-Barton - Appurtenance Agr - Lower CoveAPPURTENANCE AGREEMENT
LOWER COVE
This Appurtenance Agreement — Lower Cove ("Agreement') is entered into by and
between Waldorf-Astoria Management LLC, 90210 DesertResorts Management Co., LLC, LQR
Golf LLC ("LQR Golf'), LQR Property LLC and KSLR Asset Management, LLC (collectively,
"LQR Parties"), Coachella Valley Water District ("CVWD"), and City of La Quinta ("City")
(individually, "Party'; collectively, "Parties"),
RECITALS
A. Two actions were filed in the Riverside Superior Court against "La Quinta
Resort", the Haciendas at La Quinta Homeowners Association ("BOA"), CVWD, and City
resulting from damages allegedly caused by a large monsoonal storm occurring on or about
September 8, 2014 (the "Storm"), Alveriz, et al, v, City of La Quinta, et al„ PSC 1503161
("Alveriz"), and Barton, et al. v. City of La Quinta, et al., PSC 1505200 ("Barton") (together, the
"Actions"), The Alveriz action, filed on July 10, 2015, is brought by Plaintiffs Guadalupe
Alveriz/Elsa Diaz; Maria Barba/Carlos Lopez; Maria and Steven Cardinal; Kasia and Steven
Gardner; Ted Hammam/Joyce Litch; Gabriella Monplaisir; Donna and James Nowlin; Diane
Scurlock; Richard and Kristen Simons; Terry Tryon; Ana and Guillermo Vargas; Gabriella and
Ricardo Vega; and Dale and Linda Wissman (collectively, "Alveriz Plaintiffs"). The Barton
action, filed on November 6, 2015, is brought by Tim and Jamie Barton; Gene Bordeleau/Angela
Kelly; David Bulechek, David W. Bulechek, as Trustee of Trust B, created under the Bulechek
Family Trust Agreement dated May 21, 1993 and David W. Bulechek, as Trustee of Trust C,
created under the Bulechek Family Trust agreement dated May 21, 1993 (David W. Bulechek
Trustee of Trusts B and C jointly, "Bulechek Trustee"), Bulechek Trustee erroneously named as
Plaintiff Bulechek Family Trust Under Trust Agreement Dated 5/21/1993; Jean and Paul
Forchelli; Al and Rose Garcia; Don Gilmore/Barbara Stroh; Glenn Lemer/MJP GAL Properties,
LLC; James C. Lewis; Debby Kennedy and Paul Lorensini; Jeannette Mendoza; Ron and Jan
Olson; Christopher and Shirley Painter; Michael and Lucinda Robson; Luis Sato/Elaine
Valencia; Harry and Ann Schaffner; Monica and Roger Vaughn; Leonard and Phyllis Webster;
and Jeff and Lisa Zella (collectively, "Barton Plaintiffs") (the Alveriz and Barton Plaintiffs,
collectively, "Plaintiffs"), The LQR Parties were later named in amended complaints, although
the "La Quinta Resort" remained as an erroneously named Defendant.
B. Alveriz Plaintiffs Guadalupe AlverizBlsa Diaz; Maria Barba/Carlos Lopez; Maria
and Steven Cardinal; Kasia and Steven Gardner; Ted Hammam/Joyce Litch; Gabriella
Monplaisir; Donna and James Nowlin; Diane Scurlock; Terry Tryon; Ana and Guillermo Vargas;
Gabriella and Ricardo Vega; and Dale and Linda Wissman and Barton Plaintiffs Al and Rose
Garcia; Christopher and Shirley Painter; Michael and Lucinda Robson; Luis Sato/Elaine
Valencia; and Monica and Roger Vaughn claim, among other things, that certain flood control
management systems in and near the Lower Cove caused or contributed to the damage to their
properties ("Contested Lower Cove Flood Control Appurtenances").
C. The Contested Lower Cove Flood Control Appurtenances include a berm; a
Swale, a dual pipe inlet, dual 30-inch High -Density Polyethylene pipes ("HOPE Pipes") that
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extend between the inlet and dual 364nch Corrugated Metal Pipes ("Dual 364nch CMPs"), and
the Dual 36-Incb CMPs, located northwesterly of the Avenida Carranza cul-de-sac and, in part,
within the Oleander Reservoir, and a 604nch Reinforced Concrete Pipe that conveys surface
water from the Cove area to the La Quinta Evacuation Channel ("60-Inch RCP"). The swale
("Swale"), inlet ("Inlet"), HDPE Pipes and Dual 36AInch CMPs are depicted in the Avenida
Carranza Drainage Improvements Overside Drain and Headwall Plan, Sheet 2 of 2, attached as
Exhibit "A" hereto.
D, Each o£ the Parties deny liability for any and all of Plaintiffs' alleged damages
arising from or caused by the September 8, 2014 storm ("Storm"), Nothing in this Agreement
shall be construed as an admission of liability or responsibility at any time or for any purpose.
E.
Plaintffs and the
Parties entered into
a Settlement
Agreement and Mutual
Release ("Settlement
Agreement')
made and entered into
as of May 1,
2017, which sets forth the
terms and
conditions of settlement
of the Actions against
LQR Parties,
HOA, CVWD, and City.
F. Notwithstanding that the Parties deny liability for any and all damages claimed by
Plaintiffs in the Actions, in consideration of the releases set forth in the Settlement Agreement,
which Settlement Agreement is incorporated herein by this reference,, each Party agrees that
certain of its ongoing practices will continue and it will undertake, but only to the extent the
Party agrees hereunder, certain modified practices going forward with regard to the Contested
Lower Cove Flood Control Appurtenances as follows;
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and conditions contained herein,
the Parties agree as follows;
1. City's Resnonsibilities re Swale Inlet HDPE Pipes and Dual 36-Inch CMPs.
City, as it has been doing since approximately July 2015, will continue to perform routine
maintenance to clear debris from the Swale, Inlet, and HDPE Pipes, and will undertake
performance of routine maintenance to clear debris from the Dual 36-Inch CMPs, to keep the
Swale, Inlet, HDPE Pipes, and, Dual 36-Inch CMPs operational. In the event the Swale, Inlet,
HDPE Pipes, or Dual 364nch CMPs require repair or replacement, City shall be responsible for
same. City, in its sole discretion, may redesign, modify or close and abandon operation of the
Swale, Inlet, HDPE Pipes and Dual 364nch CMPs, or any portion or part thereof, so long as
local storm water protection in this area does not fall below the standard 100-year storm
protection by doing so; City's responsibilities under this paragraph 1 shall cease upon closure of
the subject storm drain facility, or that portion or part closed. Unless the need for maintenance,
repair or replacement is caused by CVWD's discharge, or failure to discharge, its responsibilities
under paragraph 7 herein, CVWD shall have no obligations or responsibilities whatsoever under
this Agreement with regard to the Swale, Inlet, HDPE Pipes, and Dual 36which CMPs, or any
parts or segments thereof.
2. CVWD Encroachment Permit, City will apply for a CVWD encroachment permit
granting City the right to enter upon CVWD's real property or real property interest to, as
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1231 A21,1
described in paragraph I above, maintain, repair, replace, and/or modify or close operation of the
subject storm drain facility, or a portion or part thereof, located within the boundaries of
underlying real property owned by CVWD, identified as APN 773-021-019 and APN 773-21-
009 on Exhibit "A" hereto, and any other real property owned by CVWD within which the
subject storm drain facility is located The southern boundary of APN 773-021-019 is depicted
as the faint horizontal broken line that begins, as indicated on the document, 30' feet north of the
bold horizontal broken line marked "R/W -- Ex. C/L of Tampico," CVWD will expedite the
City's application for an encroachment permit and will not unreasonably withhold approval.
CVWD shall waive any and all fees associated with City's application for the encroachment
permit described in this paragraph 2,
3, LQR Golfs Responsibilities to Outlets and Flap Gates to the Dual 36-inch CMPs.
LQR Golf, as it has been doing as part of its routine maintenance, will continue to clear debris
from the outlet and flap gates to the Dual 36-Inch CMPs located on the side of the Oleander
Reservoir to keep the outlet and flap gates and Dual 36-hrch CMPs operational, LQR Golf shall
be responsible for repairing and replacing the flap gates and outlets to the Dual 36-Inch CMPs,
when the need for such repairs results from actions of LQR Golf, its agents, contractors,
employees and invitees.
4. LQR Golfs Responsibilities to Dual 364neh CMPs, LQR Golf will provide the
City reasonable access to the Dual 36-Inch CMPs and the outlet and flap gates on the Oleander
Reservoir side of said CMPs in order for the City to keep them clean of debris and maintain,
repair, replace and/or modify or close the Dual 36-Inch CMPs as described in paragraph 1.
5, LOR Golf s Responsibilities re 60-Inch RCP, LQR Golf will keep clear of debris
the outlet of the 604nch RCP that drains surface water from the Cove area to the La Quinta
Evacuation Channel and refrain from taking any action, including building golf course
improvements or stockpiling materials, that would impede or divert the path of surface water that
flows from the 60-Inch RCA outlet north and east to the low water crossing at Avenue 50,
located proximate and north of the 51h hole of the Dunes Golf Course.
6, LQR Golfs Responslbilities re Berm. LQR Golf, as it has been doing, will
continue to add rock to the berm above and to the north of the HDPE Pipes and Dual 364nch
CMPs if LQR GOLF's recycling haulers/vendors continue to pass over that berm to retrieve
recycling containers where currently located by LQR Golf, which containers City requires LQR
Golf have for its operations.
7, CVWD's Responsibilities re Berm. With the exception of LQR Golf s
responsibilities set forth in paragraph 6 above, CVWD will otherwise be responsible for
maintaining the structural integrity of the berm that passes over the HDPE Pipes and Dual 36-
Inch CMPs. Aside from the responsibilities set forth in this paragraph 7 and paragraph 2 above,
CVWD shall have no other obligations or responsibilities whatsoever under this Agreement;
City shall have no responsibilities or obligations whatsoever under this Agreement with regard to
the berm, unless the need for maintenance work is caused by City's discharge, or failure.to
discharge, its obligations concerning the Swale, Inlet, HDPE Pipes, and Dual 364nch CMPs as
described in paragraph I above.
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1231821.1
8, Effective Date, This Agreement shall become effective upon execution by all
Parties,
9, Entire Agreement, This Agreement contains the entire Agreement of the Parties
with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or
agreements.
10, Amendment of Agreement. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by all Parties.
11. Mutual Indemnification, Each Party ("Indemnitor") agrees to defend, at its own
expense including payment of reasonable attorneys' fees, indemnify and hold harmless every
other Party, its Board of Directors, directors, City Council, commissions, council members,
agents, officers and employees ("Indemnitee"), sued by a third party in connection with or
related to the Indemnitor's performance of its responsibilities under this Agreement, from all
costs, penalties, damages, liability and claims of any nature whatsoever, including but not limited
to liability for bodily injury, sickness, disease, death, or property damage (including loss of use),
caused by or arising out of or relating to any negligent act, or error or omission of the
Indemnitor, its officers or employees, or any other agent acting pursuant to Indemnitor's control
and performing under this Agreement. To the extent that more than one Party is determined to
have been negligent or at fault, the Parties agree that each Party shall bear its own portion or
percentage of liability and proportionate share of attorney's fees and indemnify and hold
harmless the other party from the Indemnitor's share of liability, Notwithstanding the foregoing,
nothing herein shall be construed to require the Indemnitor to defend, indemnify or hold
harmless the Indemnitee from any claims arising from the sole negligence or willful misconduct
of the Indemnitee, The Indemnitee shall promptly, after becoming aware of any threatened, or
actual lawsuit, notify the Indemnitor of any claims it determines are within the scope of this
indemnity provision, and if the defense is provided by Indemnitor on a tendered claim, cooperate
with the defense of that claim.
12, No Third Party Beneficiaries. Nothing in this Agreement is intended to create
duties or obligations to, or rights in, third parties not parties to this Agreement.
13, Successors and Assigns. This Agreement shall bind and inure to the benefit of the
Parties hereto and their respective governing bodies and their individual board members, heirs,
executors, administrators, legal representatives, successors, subsidiaries, parent corporations, and
assigns,
14. Construction of Agreement, No provision of this Agreement shall be construed
against any of the Parties based upon any of the Parties drafting any portion of this Agreement,
15. Authority to Enter Agreement. Each Party signing this Agreement represents and
warrants that the individual signing this Agreement on a Party's behalf is fully authorized to do
so and has obtained all necessary approvals to bind that Party to the terms of this Agreement.
16, Governing Law. This Agreement shall be deemed to have been entered into in
the State of California, and governed and interpreted by the laws of the State of California.
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1237821.1
7. Waiver. No waiver or any default shall constitute a waiver of any other, default or
breach, whether of the sarne or other covenant or condition, No waiver, benefit, privilege, or
service voluntarily given or perforated by a Party shall give the other Party anv contractual rights
by custom, estoppel or otherwise.
18, Cooperation and Further Acts- The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement.
19. Confidentiality. There shall be no publicity initiated in any form by any Party or
Party Representative regarding this Agreement, and no Party or Party Representative shall
tutiate contact with any media person or media concern in any way regarding this Agreement or
is terms, If a Party or Parry Representative receives any inquiry from the media regarding this
Agreement, then such Part\� or Party Representative shall state only that ,fhe matter has been
amicably resolved." In the event that a Public Records Act request is made to CV\VD or City for
any documents related to this Agreement, they shall respond only as is necessary to comply with
the Public Records Act and may answer questions from the public, including the media, relevant
o their response to the Public: Records Act request, but shall not disclose the contents of the
QR Parties Side Loner Agreement, The Parries acknowledge that the terms of this Agreement
ere Public Records subject to disclosure under California's Public Records Act.
20. Couniz s. This Agreement may be signed in enunterparts, and any facsimile,
e-mail or other copies of this Agreement or any counterparts, shall be deemed an oripdnal.
21, Nothing in this Agreement shalI alter or affect the rights held by or the obligations
owed under any easement by or hettveen CV WD, the City, HOA.. and/or the LQR Panics.
Dated: May jcj_, 2017 WALDORP=ASTORIA MANAGENIEN7
LLC'
By: -'
(Siprreture)
(Print Name)
P,r_ec 5 nt8
1271 ri71.1
Dated: Mey e , 2017 902I0 DESERT RESORTS MANAGEMENT
CO., LLC
(Signature)
(Phut Nanic)
(Iltl�) I
ated: Ma2017 I.�
y_ RGOLF 'LLC
D
MICHAEL JORDAN HRIS FRAIOLI
AUTHORIZED SIGNATORY __.. _ CR AInZED SIGNATORY
PrFM—
int NnmeT
Its'.
Page fi of N
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Dated. May_, 2017 LQR PROPERTY LLC
1
By'-- —
n'e)
C:HRIS FRAIOLI
(Print Name)gUTHORIZF_D SIGNATORY
lts'.
Datcd: May __, 2077 KSLR ASSET MANAOEMP.NT, LLi�
(Signature)
(Print Name)
(Title)
Inge 7 of tl
1331821.1
Dated: May �, 20I LQR PROPERTY LLC
(Signature)
(Pr nt Name)
(Title) --
Dated: May _, 2017 KSLR ASSET MANAGEMENT, LLC
By: ('f —
(Signature
(Print Name)
(Title)
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I2)13'_1.1
Dated; May 2017 GOACHELLA VALLEY WATER DTSTRTCT
By:
signature)
J. M. Barrett
(Print Name)
Its: General Manager
(Title)
Dated; May_, 2017 CITY OF LA QUINTA
sy:
(Signature)
(Print Name)
(Title)
Pagc g of 8
1271621.1
Dated: May , 20I7
Dated: May �$ , 2017
COACHELLA VALLEY WATER DISTRICT
By:
(Signature)
Name)
(Title)
CITY OP LA QUINTA
T
Rv: )
Dlgltallysigned by Ftankl, Spevacek
ON: cn=Frankly Manacek, o=Clryof La
eulnla, ou=ary @la qu r,
email=fspeva<e817:24:41 07'00 c=115
Dace: zm v,os,Ja n�,za:aJ -oroo'
(Signature)
FRANKJ.SPEVACEK
(Print Name)
Its; CITY MANAGER
(Title)
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