2019 Swenson Family Trust - Indemnification Agrmt; CUP 2013-152DEFENSE AND INDEMNITY AGREEMENT
Potential Challenge to Issuance of Swenson Project Permit
This Indemnity Agreement ("Agreement") is made and entered into by and between the
City of La Quinta ("La Quinta") on the one hand, and Case and Lisa Swenson (collectively,
"Swenson") on the other hand (collectively referred to as "Parties").
A. On or about January 24, 2019, counsel for Joseph McVeigh and AJA Investments
L.P. ("AJA") submitted to La Quinta a letter objecting to the issuance of any permit for the
residential project ("Project") being undertaken by the Swensons. A copy of the letter is
attached to this Agreement as Exhibit A.
B. On January 30, 2019, counsel for the Swensons provided a letter to La Quinta,
responding to and refuting the claims in Exhibit A, a copy of which is attached to this
Agreement as Exhibit B.
C. The objections set forth in Exhibit A and responded to in Exhibit B are
referred to as the "Dispute."
D. The Swensons have requested that the City proceed with the issuance of permits
for the Project notwithstanding the Dispute.
Therefore, the Parties hereto, agree as follows:
1. Swenson agrees to defend, indemnify and hold harmless La Quinta from any costs
or expenses resulting from issuance of any permit for the Project relating to the Dispute,
including the City's attorneys' fees and litigation costs, as well as any damages, attorneys' fees
or litigation costs the City would be required by final judgment to pay to any person or entity. If
litigation is commenced against La Quinta as a result of the Dispute, the Swenson$ agree to
deposit the sum of $10,000 with City's Finance Department to fund City's defense by counsel of
its choosing. Thereafter, the Swensons shall be required to replenish the account on 15-days'
notice so as to maintain a minimum balance of $5,000 in the account, until such time as the
litigation is completed and all obligations are satisfied.
2. This Agreement may be executed in counterparts by counsel for the Parties and
will become effective and binding upon the Parties at such time as all of the signatories have
executed a counterpart hereof.
(Signatures on following page)
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DEFENSE AND INDEMNITY AGREEMENT
L�
IN WITNESS WHEREOF, the parties have executed this Agreement as of the respective
dates set forth below.
"SWENSONS"
"CITY"
By:
By:
age enso
�"'a
Its: - L T� I
By:
Title:
Lisa Swenson
Date: a °� % 9
Date:
APPROVED A&TO FORM:
APPROVED AS TO FORM:
c
By:
By; �
M. Katherine Jenson
1 i er Ta�
Taggart
nse[ fbr Case an isa Swenson
Counsel for the City of La Quinta
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JOINT DEFENSE AND INDEMNITY AGREEMENT
EXHIBIT A
Hermosa Beach Office Chatten-Brown, Carstens & Minteer LLP Douglas Carstens
Phone: 1310) 798-2400 Email Address:
San Diego Office 2200 Pacific Coast Highway, Suite 318 dpc@c6cearth1aw.com
Phone: (856) 999-0070 Hermosa Beach, CA 90254
Direct Dial:
Phone: (619) 940-4522 www.cbcearthlaw.com
310-798-2400 Ext. 1
January 23, 2019
RECEIVED
City of La Quinta
Department of Building and Safety
JAN 2 tl 2019
78495 Calle Tampico,
La Quinta, CA 92253
CM OF LAQUWA
Phone: (760) 777-70 l2
DESIGN AND DEVE:IOPMEHT DEpAMENf
Re: Objection to Issuance of Any Permit for Project Relying on
Encroaclunent in Drainage Easement for Construction Related to
Swenson Residence at 77210 Loma Vista, La Quinta Cal Lot #55
and #56; Conditional Use Permit 2013-152 Adopted March 8, 2016
To Whom It May Concern:
On behalf of our client, AJA Investments L.P. (AJA), we object to issuance of a
building permit or any other types of permits for proposed construction of a residence at
77210 Loma Vista pursuant to CUP 2013-152 approved by the City of La Quinta (City).
The proposed Project relies upon planned encroachments into AJA's drainage easement
by Mr, and Mrs. Swenson without having obtained AJA's approval as required by the
City's CUP. AJA owns an interest in this drainage easement, along with all other lot
owners in the Enclave Mountain Estates. The encroachments proposed as part of the
project for which CUP was obtained include (1) a rockfall wall, (2) an underground
retention system, (3) a gate for proposed flood control access, and (4) a depressed planter
area; (5) relocation of the Imperial Irrigation District (IID) switch vault; and (6)
relocation of the WM structure. These encroachments would be placed on the surface or
beneath the surface of the storm channel casement that AJA owns as an easement holder.
The potential encroachments are substantial and could cause physical damage to the
drainage easement.
The City's grant of Conditional Use Permit (CUP) 2013-152 includes condition 9.
Condition 9 requires obtaining approvals of affected property owners as it states the
following requirement:
Prior to issuance of any permit(s), the applicant shall acquire ... easements and
property rights necessary for the construction or proper functioning of the
proposed development.
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JOINT DEFENSE AND INDEMNITY AGREEMENT
Department of Building and Safety
City of La Quinta
January 23, 2019
Page 2
(CUP 2013-152, p. 3.)
AJA is an easement holder because it is the owner of Lot # 21 of Tract no. 25237
and is an intended third party beneficiary of an agreement creating the drainage easement
for all lot owners in the tract. In a written agreement dated July 1, 1996 between Enclave
Mountain Estates Homeowners Association and Robert R. Taylor and Mary K. Taylor,
the Taylors who were then owners of Lots 1, 2, and "A" of Tract 26251 agreed to
"Reserve the easements denoted as Delta i and Delta 2 (the drainage easement] on
Tentative Tract Map 28335-R not only to the homeowners association, but to the owners
of Lots I through 54, inclusive." (Emphasis added.) This agreement creating AJA's
easement runs with the land and was recorded on January 28, 1997.
While the Swensons have an agreement dated December 10, 2015 with the
Enclave Mountain Estates Homeowners Association in which they agreed to indemnify
the Association, they have not agreed to indemnify AJA or protect its interest in the
drainage easement. AJA has communicated these objections to the Swensons but they
have disputed the need to obtain permission to encroach on AJA's easement.
If the City grants the Swensons a permit and then damage subsequently occurs to
AJA's easement, including without limitation any structure, culvert, pipes, etc. and AJA's
contiguous property, the City could be Iiable for damages jointly with the Swensons
because of its approval of a permit. (Yue v. City of Auburn (1992) 3 Ca1,App.4"' 751,
763.)
Therefore, AJA objects to an issuance of any permit to the Swensons when
Condition 9 has not yet been cleared.
Sincerely,
Douglas P. Carstens
Cc: William H. Ihrke
Kathy Jenson
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J01NT DEFENSE AND INDEMNITY AGREEMENT
EXHIBIT R
DEMETRIOU, DEL GUERCIO, SPRINGER &
ATTORNEYS AT LAW
915 WILSHIRE BLVD. SU7E 2000
LOS ANGELES, CALIFORNIA 90017
JEFFREY 2 S. SPRINGER
(2 ) 3) 624-8407
STEFHEN A. DEL GOERCIO
FAX (213) 624-0174
MICHAEL A_ FAANCIS
BRIAN D. LANGA
WKNV.DDSFFIRM.GOM
JENNIFER T. TAGGART
LESLIE M. DEL GVERCID
TAMMYM. J. HONG
January 30, 2019
FRANCIS, LLP
Via_Email fiwiatrak0aaulntaca.aov) and Federal Express
James Wiatrak,
Building Official and ADA Coordinator
Department of Design and Development
CITY OF LA QUINTA
78-495 Calle Tampico
La Quinta, CA 92253
CHRIS G. DEMETRIOU (1915� 1989)
RONALD J. DEL GDERCIO(R-...)
RICHARD A. DEL GUERCIO (RETIRED)
SENDER'S EMAIL ADDRESS
JSPRINGEAU0DSFFI R M.COM
SENDER'S DIRECT LINE
(213) 624-8407 E'J(T, 1 4
8
Re: Permits for Swenson Residence at 77210 Loma Vista, La Quinta, 92253
Dear Mr. Wiatrak:
This letter is sent on behalf of this firm's clients, Mr. and Mrs. Swenson, the
owners of the property located at 77210 Loma Vista, La Quinta, California (the
"Property"), This letter is sent in response to correspondence dated January 23, 2019
addressed to the City of La Quinta Department of Building and Safety by Douglas P.
Carstens on behalf of AJA Investments, LP ("AJA"). A copy of Mr. Carstens'
correspondence was forwarded to me by M, Katherine Jenson.
According to Mr. Carstens' correspondence, the following planned improvements
to be placed upon the Swensons' property constitute "encroachments" upon a drainage
easement in which AJA claims to own an interest: (1) a rockfall wall, (2) an underground
retention system, (3) a gate for proposed flood control access, and (4) a depressed
planter area.
The easement in question was identified in Tract Nos. 26251 and 28335-R as "an
easement for drainage and incidental purposes." The noted easement does not purport
to be exclusive. Indeed, both maps show a private street for residential use that goes
over the drainage easement area, thereby expressly denoting the intended residential
uses of the Property.
Settled California law provides that "[e]very incident of ownership that is not
inconsistent with the use and enjoyment of the easement is reserved to the owner [of
the land]." (E.g., Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702.)
And the owner of the land "may use the easement area as long as the use does not
unreasonably interfere with the purpose of the easement." (Eg., Camp Meeker Water
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JOINT DEFENSE AND INDEMNITY AGREEMENT
James Wiatrak
CITY OF LA QUINTA
January 30, 2019
Page 2
System, Inc. v. Public Utility Comm. (1990) 51 Cal.3d 845, 867.)
Here, both the Swensons' and the Homeowners Association's engineers have
determined that the proposed improvements do not interfere with the drainage
easement. Indeed, the retention system and the rocktall wall will reduce the chance of
future flooding of the neighbors' properties. Since the proposed development does not
interfere with the easement, there is simply no factual or legal basis for AJA's claim of
"encroachment."
AJA's claim is also barred by the rule prohibiting the relitigation of claims, known
as "res judicata." In the action entitled, Joseph McVeigh v. City of La Quinta, Riverside
Superior Court Case No. RIC 1606159, Mr. McVeigh alleged that he was the general
partner of AJA, the owner of the property located at 77220 Loma Vista. (Petition for
Writ of Mandate, ¶ 11.) In his Opening Brief, McVeigh argued that the Swensons'
proposed project would encroach into the drainage easement. (Op. Br. p. 9 — 10.) In
the court's tentative ruling, the court rejected the argument. (Tent. Rul., p. 5.) Such
tentative ruling became the ruling of the court. (Minute Order dated May 17, 2016.)
Judgment was entered thereon on June 13, 2017.
Accordingly, any further action would be barred under the rule of "res judlcata."
This rule prevents multiple lawsuits where a party has been exonerated in an earlier suit
brought by the same plaintiff or a party in privity with the plaintiff in the prior lawsuit.
(Bernhard v. Bank of America (1942) 19 Cal.2d 807, 811 — 812.) Because AJA and
McVeigh are in "privity," AJA is barred from raising the same claim as that which was
raised by McVeigh in the previous action. (1d.)
Accordingly, this letter shall confirm that, pursuant to CUP 2013-152, Mr. and
Mrs. Swenson own all of the property rights necessary for the construction and
operation of the proposed development.
Please contact us at your earliest convenience if you should have any questions
regarding this matter.
Si cerel ,
r y . B. S ger
JZBSIIp
cc, M. Katherine Jenson (via email)
Douglas P. Carstens (via email)
Client (via email)
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JOINT DEFENSE AND INDEMNITY AGREEMENT