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2024 Troutdale Village, LLC - Indemnification & Release Agrmt - LQ Village Apts; SP, Exhibit D, COA 1INDEMNIFICATION AND RELEASE AGREEMENT LA QUINTA VILLAGE APARTMENTS THIS INDEMNIFICATION AND RELEASE AGREEMENT ("Agreement") is hereby entered into by the City of La Quinta, a California municipal corporation and charter city ("City"), and Troutdale Village, LLC a California limited liability company ("Developer"), entered into and effective as of November 21, 2023 ("Effective Date"). City and Developer may each individually be referred to as a "Party" and collectively as the "Parties." RECITALS A. WHEREAS, on November 21, 2023, the City Council of the City of La Quinta adopted Resolution No. 2023-039, approving General Plan Amendment 2022-0002, conditionally approving Specific Plan 2022-0001 (SP 2004-071, Amendment 2), and conditionally approving Site Development Permit 2022-0001, and conditions of approval ("COAs") attached thereto (collectively the "Approvals") related to the development of a 252 -unit apartment project located on the northeast corner of Washington Street and Avenue 50 in the City of La Quinta ("City"), referred to as the La Quinta Village Apartments Project, as more specifically described, approved, and conditioned as set forth in said Resolution (the "Project"); and B. WHEREAS, Government Code Section 65863 (the "No Net Loss Law") requires public entities like the City to maintain adequate sites in their Housing Element to accommodate their regional housing need allocation ("RHNA") at all income levels, at all times, including designating alternate sites where a project would develop a previously designated site without providing the requisite units at the requisite affordability levels; and C. WHEREAS, Resolution No. 2023-039 sets forth in part the actions necessary for the Project to comply with the No Net Loss Law, including the redesignation of two hundred eighty (280) low or very low income affordable units in City's Housing Element from the Project site to alternate locations in the City, and the requirement to seek approval or certification of City's Housing Element as modified by the Approvals from the California Department of Housing and Community Development ("HCD"); and D. WHEREAS, by letter dated February 5, 2024, HCD delivered notice to the City that the Revised Draft Housing Element, which was modified by the Approvals, was found to "not adversely impact the current compliance status of the housing element once adopted[] [and as] a result, the revised [Housing Element] will continue to comply with state housing element law (Gov. Code, § 65580 [et seq.]) when these revisions are adopted and submitted to HCD, pursuant to [Government] Code Section 65585(g)"; and E. WHEREAS, the City has submitted to HCD, pursuant to Government Code Section 65585(g), the final copy of the Housing Element as modified by the Approvals; and 698/015610-0203 20259635.3 a03/06/24 -1- F. WHEREAS, the California Environmental Quality Act ("CEQA") (Pub. Res. Code, §§ 21000 et seq.) requires public entities like the City to make certain findings and follow certain procedures in connection with development approvals, including the Approvals for the Project; and G. WHEREAS, pursuant to the conditions of approval (COAs) for each and every of the Approvals for the Project, Developer has the obligation to enter into this Agreement whereby Developer shall indemnify, defend, and hold City, its officials, agents, officers, and employees harmless in connection with the Approvals and the Project, including but not limited to compliance with the No Net Loss Law and CEQA, and whereby Developer shall provide a release of all claims and liabilities encompassed by its indemnification obligations hereunder. NOW, THEREFORE, in consideration of performance by the Parties of the mutual promises, covenants, and conditions herein contained, the Parties agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are hereby incorporated herein by this reference and are expressly made a part of this Agreement. 2. Indemnification. Developer shall defend (with counsel selected by the City), indemnify, and hold harmless City and its officials, agents, officers, and employees (collectively, "Indemnified Parties") from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses) incurred in connection with and/or arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the Approvals and/or the Project (collectively "Claims"), which includes but is not limited to Claims brought against the City for alleged or actual violations of the No Net Loss Law or CEQA. Without limiting the foregoing, in the event the Indemnified Parties are made a party to any action, lawsuit, or other adversarial proceeding alleging the Project and/or Developer has violated any law or regulation, or otherwise alleging negligent or wrongful conduct (or material omissions) on the part of Developer, Developer shall provide, at its cost, a defense (with counsel selected by the City) to the Indemnified Parties, or at the City's option, reimburse the Indemnified Parties on an ongoing monthly basis their costs of defense, including attorneys' fees, incurred in defense of such Claims. In addition, Developer shall be obligated to promptly pay any final judgment or portion thereof rendered against the Indemnified Parties. The obligations set forth in this Section 2 include, but are not limited to, sums paid or liability incurred in settlement of and expenses paid or incurred in connection with any administrative and/or judicial claims, suits or judgments under any litigation and/or arbitration expenses and/or awards paid or incurred in attempting to settle litigation or in recovering or in attempting to recover losses or expenses paid or incurred thereby, including but not limited to incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation. 3. Release. Developer, on behalf of itself and its heirs, successors, assigns, insurers, lenders, lien holders, attorneys, agents, and other representatives hereby releases the 698/015610-0203 20259635.3 a03/06/24 -2- Indemnified Parties from any and all Claims covered under the obligations set forth in Section 2 of this Agreement (the "Release"). By releasing and forever discharging Claims both known and unknown as above provided, Developer expressly waives any rights under California Civil Code section 1542, which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Developer, for itself and for any and all successors -in -interest, expressly accepts any and all risk of loss and thereby waives and relinquishes any rights and benefits that it has or may have under Section 1542 of the Civil Code of the State of California. Developer's initials 4. Notice. Except as otherwise expressly provided by law, all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Party by the other Party shall be in writing and shall be deemed received on: (i) the day of delivery if delivered by hand, e-mail (with confirmation of receiving party), or overnight courier service, during regular business hours; or (ii) on the third business day following deposit, with postage prepaid, in the United States Postal Service and addressed to the receiving Party. Contact information of the Parties is as follows: To City: To Developer: CITY OF LA QUINTA Name: Troutdale Village, LLC Attention: Director, Design & Development Attention: Jeff Parker Department Address: 1800 Blankenship Rd, 78495 Calle Tampico Suite 325 La Quinta, California 92253 City, State, ZIP: West Linn, OR, Email: dcastro@laquintaca.gov 97068 clflores@laquintaca.gov Email: jeff@blackhawkd.com With Copy to RUTAN & TUCKER, LLP Attention: William H. lhrke, Esq. 18575 Jamboree Road, 9th Floor Irvine, California 92612 Email: bihrke@rutan.com Either Party may change its contact information for the purpose of this Section by giving written notice of the change to the other Party. 698/015610-0203 20259635.3 a03/06/24 -3- 5. Termination and Amendment. This Agreement may be terminated only by written notice from City to Developer, which City may provide in its sole discretion and must be based upon, at a minimum, a determination that (a) all No Net Loss Law and CEQA compliance matters for the Project and Approvals have concluded, (b) the Project has been completed and all conditions of approval have been satisfied, (c) the statute of limitations for any person to bring any Claims encompassed by this Agreement has lapsed, and (d) no other valid reason exists to maintain this Agreement. This Agreement may be modified solely by written amendment signed by both City and Developer. City's City Manager, or designee, may execute any such amendment or other document or instrument implementing this Agreement or the purpose hereof on behalf of City without further authorization by the City Council unless such amendment or other document would result in material expense to City or increase the risks or liabilities to City associated with this Agreement. 6. Attorneys' Fees. If City incurs attorneys' fees in order to enforce, defend or interpret any of the terms, provisions or conditions of this Agreement or because of a breach of this Agreement by Developer, and the City is the prevailing Party, whether by suit, negotiation, arbitration or settlement, City shall be entitled to recover from Developer reasonable attorneys' fees for said attorneys' fees. 7. Authority. Each Party represents and warrants that all necessary action has been taken by such Party to authorize the undersigned to execute this Agreement. 8. City Officers and Employees. No officer or employee of City shall be personally liable to Developer or any successor in interest in the event of any default or breach by City or for any amount which may become due to Developer or to its successor or for breach of any obligation of the terms of this Agreement. 9. Construction and Interpretation. The language of each part of this Agreement shall be construed simply and according to its fair meaning and the applicable rules of interpretation of contracts under the law of the State of California, and this Agreement shall not be construed either for or against either Party, whether or not that Party drafted all or a portion hereof. 10. Covenant against Discrimination. Developer covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification under federal, state, or local law, including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry in the performance of this Agreement. Developer shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, or any other protected classification under federal, state, or local law. 11. Governing Law, Venue. This Agreement has been made in and shall be construed in accordance with the laws of the State of California without regard to conflict of law principles, and exclusive venue for any dispute or judicial action involving this Agreement shall be in Riverside County, California in any federal or state tribunal in said county. 698/015610-0203 20259635.3 a03/06/24 -4- 12. Integration. This agreement between City and Developer expressly integrates and incorporates by reference the Approvals (including COAs) respecting Developer's indemnification obligations in addition to the above-described obligations in this Agreement. Any agreements or representations of City and Developer with respect to the subject matter of this Agreement not expressly set forth in this Agreement or incorporated herein are superseded by the terms of this Agreement. Additionally, the Parties hereto are parties to that certain "Reimbursement Agreement" with the same date as the Effective Date of this Agreement, related to the Project and Approvals, and nothing contained in this Agreement shall supersede, modify, or invalidate any provision of the Reimbursement Agreement, nor shall any provision of the Reimbursement Agreement supersede, modify, or invalidate any provision of this Agreement. 13. No Third -Party Beneficiaries. There are no third -party beneficiaries under this Agreement and no such third parties shall have any rights or obligations hereunder. 14. Remedies Not Excusive. No remedy conferred by any of the specific provision of this Agreement is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies shall not constitute a waiver of the right to pursue other available remedies. 15. Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement. 16. Severability. If any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreement did not contain the particular part, term, or provision held to be invalid. 17. Successors. This Agreement shall be binding on and inure to the benefit of the successors and assigns of the respective Parties hereto. However, this Agreement shall not be assigned by Developer in whole or in part without the prior written consent of City, which shall not be unreasonably withheld, conditioned, or delayed. Developer is solely responsible to ensure that any and all successors in interest to the Project, Approvals, or the real property on which the Project is proposed acknowledges and accepts all requirements of this Agreement, and that any such successor in interest executes an assignment and assumption agreement assuming all obligations herein, in a form acceptable to City, to which City shall be either an express third -party beneficiary or signatory to said assignment and assumption agreement. 18. Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between the Parties shall survive the expiration or termination of this Agreement. 19. Timing Matters. Time is of the essence for performance of this Agreement. The term "days" as used herein refers to calendar days. 698/015610-0203 20259635.3 a03/06/24 -5- 20. Waiver of Breach; Form of Approvals. Any waiver of a breach of any term of this Agreement shall not constitute a waiver of any further breach of the same or any other term of this Agreement. All approvals, waivers, or consents required or contemplated by this Agreement shall be in writing, and references to any approvals, waivers or consents shall be deemed to refer to written approvals, waivers, or consents. 21. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument executed on the same date. Electronic or facsimile signatures on this Agreement shall be treated as original signatures and shall have the same binding affect upon the party delivering that signature as an original document. IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the day and year first hereinabove written. 698/015610-0203 20259635.3 a03/06/24 [Signatures on Following Page] -6- CITY DEVELOPER City of La Quinta, a California Troutdale Village, LLC, a California municipal corporation and charter city limited liability company Attest: illen, City anager neff Parker Title: Managing Member vv I/ April 5, 2024 Monika Radeva, City Clerk Approved as to Form: William H. Ihrke, City Attorney 698/015610-0203 20259635.3 a03/06/24 -7- Name: Title: