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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 Page 1 of izsiszt.i 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 Page 2 of 8 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. Page 3 of 6 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. Page 4 of 8 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 I tJIF?l.l 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) Page i of 8 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) Page 8 of 8 iz3tazt.t �r�€a P> Mybmvavau+antl - d� i