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AvantStay, Inc, Daniel Callister, & LQ - 53055 Juarez - 2023 Settlement AgrmtSETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (hereinafter the "Agreement") is entered by and between the CITY OF LA QUINTA, a California municipal corporation ("City"), AVANTSTAY, INC. the short term rental agent ("Agent"), and DANIEL CALLISTER, the homeowner ("Callister") and is binding and effective as of the Effective Date (defined below). The City, the Agent and Callister are referred to jointly hereinafter individually as a "Party" and collectively as the "Parties." The Parties enter into this Agreement with reference to the following: RECITALS A. WHEREAS, on May 2, 2020, the City received a report that the property located at 53055 Avenida Juarez, La Quinta, California (the "Property") was potentially operating as a short- term rental in violation of both the City's Executive Order Number 7 ("Executive Order No. 7") and the La Quinta Municipal Code, section 3.25.050; B. WHEREAS, the City reviewed the report and determined that Mr. Callister was in violation of Executive Order No. 7 and the La Quinta Municipal Code, and the City subsequently issued citations for fines totaling $6,500 as well as a Notice of Suspension suspending any use of the Property as a short-term vacation rental for 365 days; C. WHEREAS, after settlement discussions regarding the terms of agreement, the Parties were able to come to a mutually agreeable agreement, as reflected in the terms herein; and D. WHEREAS Agent and Callister represent that their relationship is not an agent - principal relationship, and that Agent is a long term lessee pursuant to a separate agreement between Callister and Agent. The use of the term "Agent" in this Agreement is for convenience only and is not intended by anyone to identify, limit, expand, create, modify or alter in any way whatever legal relationship that exists between Callister and Agent. NOW THEREFORE, in consideration of the Recitals above, which are a substantive part of this Agreement and incorporated by this reference, and the mutual covenants set forth herein, the Parties agree as follows: 1. Obligations of the City. In consideration of the terms and conditions set forth in this Agreement, and full compliance thereof by both Agent and Callister, the City agrees to the following: A. The City shall lift the suspension on the Property as of September 18, 2020. B. The balance of the 365-day suspension will be stayed and held by the City through May 11, 2021 (the "Abeyance Period"), pending no further violations occur on the Property during the Abeyance Period. C. Should there be a verified complaint about noise, amplified noise, over -occupancy, non -response to the Short -Term Vacation Rental (STVR) Hotline, and/or other violation of Chapter 3.25 or the La Quinta Municipal Code during the Abeyance Period, the abeyance of the -1- suspension of the permit may be lifted. Any administrative appeal of the reinstatement of the suspension shall be brought for hearing before the La Quinta City Manager pursuant to Section 1(D) below. D. In the event the City of La Quinta determines that there has been a violation during the Abeyance Period such that the abeyance is to be lifted, the reinstatement of the suspension shall be postponed upon the request of the Agent, who shall, on the first business day following such request for postponement, submit to the La Quinta City Clerk's Office, for eventual review and consideration by the City Manager as an administrative appeal, the reason(s) why the Agent disputes the reinstatement of the suspension. The City Manager shall schedule a hearing on the administrative appeal using the process set forth in La Quinta Municipal Code section 2.08.180 as promptly as possible, and no later than 10 days after the submission by the Agent (unless the City Manager requires a longer time period for such hearing). The decision of the City Manager shall be binding and the final decision by the City on any such administrative appeal, such that no subsequent administrative appeal to the La Quinta City Council or any other City board or commission may be taken by either the Agent or Callister. The City Manager shall have the discretion to confirm or overrule the lifting of the abeyance, or impose any lesser sanction that he or she deems appropriate based on all the circumstances presented. E. The City has or shall take off -calendar the administrative appeals relating to the Property for the citations and suspension referenced above that occurred prior to the Effective Date. 2. Obligations of Agent and Callister. In consideration of the terms and conditions set forth in this Agreement, and full compliance thereof by the City, the Agent and Callister agree to the following: A. Agent and Callister, jointly and severally, agree to pay all outstanding fines related to the violation detailed herein, totaling $6,500.00, which the City hereby acknowledges has been paid in full. B. Agent and Callister hereby provide full waivers and releases of any and all claims and disputes against the City relating to the violations referenced in the Recitals above resulting in the citations and suspension, including a waiver and release of any administrative appeals and a waiver and release of any and all claims and disputes that may be adjudicated in any state or federal court, agency, or other dispute resolution tribunal. C. The Agent shall periodically contact the City in at least sixty day time increments from and after the Effective Date, to confer with the appropriate staff to make sure that there are no specific concerns or issues concerning the use of the Property. This obligation shall be in place until the end of the Abeyance Period unless the abeyance is earlier lifted by the City Manager. Any violation of this requirement shall not result in the lifting of the abeyance or monetary fine. This requirement is intended to foster good communications with the City concerning the use of the Property pursuant to the City's STVR requirements. -2- 3. No Admission of Fault. Upon full performance by the Parties to this Agreement of their respective obligations set forth in Sections 1 and 2 above, this Agreement is intended to be and is a compromise between the Parties, and nothing in this Agreement shall be interpreted, used, or construed as an admission of fault or wrongful conduct of any kind by any of the Parties. 4. Release. a. Full and General Release. In consideration for the agreements as set forth herein, and except for the administrative appeals and respective rights of the Parties expressly retained under this Agreement, the Agent, Callister and City, on behalf of themselves and their respective successors, assigns, officials, directors, officers, employees, insurers, lenders, lien holders, attorneys, agents, and other representatives, do hereby release the other Parties from any and all claims, actions and causes of action, obligations, liabilities, indebtedness, breaches of duty, claims for injunctive and other equitable relief, suits, liens, losses, costs or expenses, including attorney's fees, of any nature whatsoever, known or unknown, fixed or contingent as of the date of execution of this Agreement relating to the use of the Property as a STVR prior to and during the Abeyance Period (the "Release"). The Release expressly does not include, and nothing in this Agreement does or shall be deemed as, a release by the City of any claims, actions and causes of action, obligations, liabilities, indebtedness, breaches of duty, claims for injunctive and other equitable relief, suits, liens, losses, costs or expenses, against either the Agent or Callister, or both, relating to any alleged or actual violation(s) (including a citation(s) and/or suspension(s)) that (i) do not involve the Property, (ii) involve a use(s) of the Property other than as a STVR, and/or (iii) occur after the end of the Abeyance Period (or earlier termination of the Abeyance Period as may be determined by the City Manager). b. Waiver of Civil Code Section 1542: By releasing and forever discharging claims both known and unknown as above provided, the Parties expressly waive 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." Except for the administrative appeals and respective rights of the Parties expressly retained under this Agreement, the Agent, Callister and City waive and relinquish any rights and benefits that they have or may have under section 1542 of the Civil Code of the State of California. The Agent, Callister and City have performed a full and complete investigation of the facts pertaining to this Agreement, and the Agent, Callister and City acknowledge and agree that they are aware that they may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to the subject matter of the Release, but it is their 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 -3- against each other, relating to the use of the Property as a STVR prior to and during the Abeyance Period. 5. Effective Date of Agreement. This Agreement shall be binding and effective as of the latest date on the signature page of this Agreement, which date shall be the "Effective Date" of this Agreement. 6. Entire Agreement. This Agreement form the entire agreement of the Parties and supersedes any and all prior agreements or understandings, if any, between them pertaining to the subject matter hereof, and shall not be modified or altered except by a subsequent written agreement signed pursuant to Section 13 below. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their respective successors, assigns, officials, directors, officers, employees, insurers, lenders, lien holders, attorneys, agents, and other representatives. 7. Representations and Warranties. The Agent and Callister, jointly and severally, hereby expressly represent and warrant that they have not transferred or assigned or attempted to transfer or assign any of the released claims that are subject to this Agreement. No claim of subrogation may be brought against the City under any of the other released claims, and the Agent and Callister expressly agree to waive any subrogation rights against the City related to any of the released claims. The persons signing this Agreement hereby represent and warrant that they have the power and authority to bind any Party on whose behalf this Agreement is signed. The Agent and Callister acknowledges and agrees that the City is materially relying upon the representations and warranties of the Agent and Callister set forth in this Agreement. If any of the Agent's or Callister's representations and warranties as set forth herein are found to be untrue or inaccurate either at the signing of this Agreement or with the passage of time, or both, then such untrue or inaccurate representation and warranty shall be a material default and the basis for a breach of this Agreement. 8. Controlling Law. This Agreement shall be interpreted and construed in accordance with the laws of the State of California without regard to conflict of law principles. 9. Attorneys' Fees and Costs. The Parties shall bear all of their own respective costs and attorneys' fees incurred relating to this Agreement. In the event that a Party is required to initiate or defend any litigation relating to or arising out of this Agreement, the prevailing Party shall be entitled to recover from the other Party(ies) its reasonable attorneys' fees in addition to any costs to which such prevailing Party shall be entitled to recover pursuant to applicable law. -4- 10. Severability If any provision or part of this Agreement is held, determined, or adjudicated to be invalid, unenforceable or void for any reason, each such provision shall be severed from the remaining provisions of the Agreement and shall not affect the validity and enforceability of such remaining provisions. 11. Review of Agreement. The Parties each acknowledge and represent that they have read this Agreement, that they have had the opportunity to consult with their respective attorneys concerning its contents, that the Agreement is being executed solely in reliance on their respective judgment, belief, and knowledge of the matters set forth herein and on the advice of their respective attorneys (if any), and that they enter this Agreement freely and voluntarily. 12. Neutral Interpretation. The Parties agree that all parts of this Agreement shall in all cases be construed as a whole according to their fair meaning and shall not be construed strictly for or against any Party hereto. 13. Modification. This Agreement shall not be modified, amended or supplemented unless such modifications, amendments or supplements are in writing and signed by the Party to be charged. 14. Counterparts. This Agreement may be executed in counterparts and by facsimile or other electronic delivery, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [signatures on next page] -5- IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth below. Date: September , 2020 "AGENT" AVANTSTAY, INC. By: SIGNED IN COUNTERPART Its: Title: Date: September , 2020 "CALLISTER" Date: September L , 2020 ATTEST: Monika Radeva City Clerk APPROVED AS TO FORM By: Al. gi;4•.--e— William H. Ihrke City Attorney By: SIGNED IN COUNTERPART Print Name: Owner of Property/Holder of STVR Permit CITY OF LA QUINTA By: Jon McMille It ' ■ anager -6- IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth below. Date: September Date: September Date: September ATTEST: , 2020 "AGENT" AVANTSTAY, INC. By: i Its: Title: , 2020 "CALLISTER" By: Print Name: Owner of Property/Holder of STVR Permit , 2020 CITY OF LA QUINTA Monika Radeva City Clerk APPROVED AS TO FORM By: William H. Ihrke City Attorney By: Jon McMillen Its: City Manager -6- IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth below. Date: September , 2020 "AGENT" AVANTSTAY, INC. Date: September , 2020 Date: September , 2020 ATTEST: Monika Radeva City Clerk APPROVED AS TO FORM By: William H. Ihrke City Attorney By: Its: Title: "CALT JSTER" By: q Print Name: ))f W1(L. c_ 14 Owner of Property/Holder of STVR Permit CITY OF LA QUINTA By: Jon McMillen Its: City Manager -6-