A Settlement is Near... Read the MOU
MEMORANDUM OF UNDERSTANDING (MOU) REACHED AT MEDIATION
HELD IN SAN LUIS OBISPO, CALIFORNIA ON NOV. 9, 2019 AND MARCH 2/3, 2020
1. The matter of the dispute between Avila Village II, LLC, et al, and San Luis Bay
Estates Homeowners Association and ABR Property LP which matter was mediated on Saturday,
November 9, 2019 and resumed on March 2 & 3, 2020, before M. Scott Radovich, in San Luis
Obispo, California pursuant to agreement among the parties hereto.
2. Appearing in this mediation were representatives of Avila Village II, LLC, Robin
L. Rossi (individually and as Trustee), Once Upon A Time, LP; Lexington Real Property Partners,
LLC and Covelop Holdings, LLC (hereafter collectively “Avila Village”); ABR Property, LP
(hereafter “ABR”); Steven J. Adamski and Thomas D. Green representing: Steven J. Adamski,
Martin P. Moroski; Diane W. Moroski; Thomas J. Madden; Thomas D. Green and Deborah H.
Green, Trustees of the Green Family Trust u/d/t dated June 29, 2004; Linda Somers Smith and
Scott Alan Smith, Trustees of the Somers Smith Trust u/d/t April 20, 2016; and Adamski Moroski
Madden Cumberland & Green, LLP, a California Limited Liability Partnership (hereafter
“AMMCG”); All of whom are referred to as “Plaintiffs”. Steven J. Adamski and Thomas D. Green
also represented NFD Tamarack LLC a non-party to the actions referenced below and which holds
an interest in the AMMCG Avila Village parcel.
3. Also appearing were San Luis Bay Estates Homeowners Association (hereafter
“SLBE” or “HOA”) and their respective counsel. All the above are referred to herein collectively
as “the parties.”
4. The parties through this mediation have reached a tentative agreement as to certain
terms and conditions in order to resolve disputed matters between and among them as set forth in
two pending civil actions filed in San Luis Obispo County Superior Court: case nos. 18CV-0184
and 19CV-0116. These agreed terms and conditions are intended to be outlined as follows but
will be recited in a comprehensive settlement agreement for each pending action, with the
agreement to include mutual releases, as well as other documentation to allow various rights and
obligations to be further negotiated, drafted, executed and recorded. All recorded documents shall
be processed through an escrow, whereby title issues and use rights are insured by title insurance.
Plaintiffs shall pay all title insurance fees and premiums. The parties shall share escrow fees and
costs 50% to Plaintiffs and 50% to HOA. The rights granted herein shall run with the land.
No Public Access
5. All parties agree that except for Secondary Emergency Access (see below) there
shall be no public access through any of the gates which provide either vehicular or
pedestrian access into the HOA gated community.
Lupine Canyon Parking Access for Avila Village.
6. The owners, tenants of Avila Village, Parcels 3-11, and their employees shall
have the non-exclusive access to fifty (50) parking spaces along Lupine Canyon
Road (Parcel 16), between the gatehouse and Firehouse Canyon Road, subject to
reasonable rules and regulations established by HOA and as modified in the future
which will not unreasonably impact such access and use. There will be no
overnight parking. The 50 spaces allocated to Parcel 12 (the Avila Bay Club) shall
not be counted as part of the 50 parking spaces available to Avila Village.
7. The owner of Lupine Canyon Road adjacent to Avila Village on which the
parking will be located (Parcel 16) will grant an easement to Avila Village Parcels
3-11 to implement the above-mentioned parking and access to parking rights in a
form to be approved by and signed off by the HOA. The HOA needs to be ba be a
party per the November 1987 easement. This shall modify be consistent with the
1987 easement.
8. The HOA shall issue passes (not including or permitting automatic, uncontrolled
access, e.g., RFID tags) to the owners and tenants of Parcels 3-11 of Avila Village
which will allow up to fifty (50) owners, tenants and/or their employees at any one
time, from time to time, to access through the main gate between the hours of 7
a.m. and 7 p.m. and park along this portion of Lupine Canyon Road. The foregoing
hours are within the current operating hours and are subject to change within the
reasonable discretion of the HOA. However, in the event operating hours are
reduced to less than this or gatehouse becomes automatic (i.e., unmanned), the
HOA shall ensure that the foregoing access and hours ares not restricted.
Avila Village shall designate in writing the 50 authorized users and their vehicles,
with proof of insurance. No more than 50 vehicles from Parcels 3-11 may park
along Lupine Canyon Road at one time. Access shall be on a non-exclusive first
come, first served basis. If no space is available to an authorized user, then access
shall be denied. The HOA does not guarantee available spaces. Except for residents
of San Luis Bay Estates, there shall be no customer or other user parking for Avila
Village along Lupine Canyon Road. No vendor, commercial or overnight parking
shall be allowed by either party. The HOA may impose reasonable rules and
regulations on the parking. Users shall comply with all rules and regulations and all
governing documents of the HOA.
9. All four (4) of the pedestrian gates currently located between Avila Village and
Lupine Canyon Road shall be open with controlled access as reasonably determined
by the HOA, and at the cost and expense the HOA. The HOA shall reasonably
control, operate and maintain the four pedestrian gates. Owners and tenants of
Parcels 3 through 11 shall be provided with a gate code or other means of access
and shall ensure that each of the gates remain passable by those authorized to park
within SLBE at all hours when parking is allowed.
10. Vehicular access to post office boxes shall be limited to those owners and
tenants of Avila Village who have (i) a post office box located within San Luis Bay
Estates; and (ii) are authorized to park along Lupine Canyon Road. HOA parking
rules will limit parking for PO Box access to 15 minutes.
Secondary Emergency Access
11. The loop roads and related access points (Bay Laurel, Lupine Canyon, Blue
Heron, Harford, Sparrow and Coffeeberry) may be used for secondary emergency
ingress and egress for the benefit of the Avila Beach Golf Resort Property.
An emergency is defined as either an emergency situation declared by the Office
of Emergency Services or other governmental emergency services agency or an
imminent threat to life, safety, or property. The HOA has no obligation to improve,
upgrade, or otherwise modify the roadways behind the gates and within SLBE in
connection with providing this Secondary Emergency Access. Access to and use of
the HOA roadways and gates (notwithstanding paragraph 12) are on an “as-is” basis
(i.e., the condition as of March 1, 2020) and as may be maintained and modified by
the HOA, within the discretion provided for in the governing documents of the
HOA. In addition, the HOA shall maintain at least the existing widths for the lanes
of travel along the loop roads within the HOA’s control and will not actively
diminish such widths by, for example only, installing new parking, bike paths or
walking lanes nor take other active steps to diminish such access by, for example
installing changing two lane roads to one lane roads.
12. Not later than October 1, 2021, ABR at its sole cost and expense shall increase
the opening of the Coffeeberry Gate up to 24’. Plans and specifications shall be
subject to review and approval of the HOA, which approval shall not be
unreasonably withheld. Plaintiffs can do what they want on Coffeeberry (where it
becomes Blue Heron Drive) outside the gate; provided there is no adverse impact
to the HOA. Should a public safety government agency, now or in the future,
require a technological modification to the Coffeeberry Gate (not a structural
modification) related to the access rights of ABR, ABR shall install the
technological modification at its sole cost and expense, with the plans and
specifications being subject to review and approval of the HOA, which approval
shall not be unreasonably withheld; provided the HOA shall have complete control
of the Coffeeberry Gate.
13. Upon execution of the settlement documents in this matter, and no later than
October 1, 2021, ABR, at its sole cost and expense, will replace the existing Harford
Gate with a new, automated controlled gate, and the gate shall meet the Secondary
Emergency Access requirements provided for herein. Should a public safety
government agency, now or in the future, require a technological modification to
the Harford Gate (not a structural modification) related to the access rights of ABR,
ABR shall install the technological modification at its sole cost and expense, with
the plans and specifications being subject to review and approval of the HOA,
which approval shall not be unreasonably withheld.
14. The HOA may participate in the Harford gate design, which will be compatible
with Gatehouse operations, and which participation shall not unreasonably delay or
otherwise impact the project. The new Harford gate will be designed and
constructed in such a manner as is required to regulate access rights as set forth
herein and to meet Secondary Emergency Access requirements. Upon completion
of the construction of the Harford gate, ABR shall transfer ownership and control
to the HOA of the new Harford gate and the HOA will accept the responsibility of
maintenance and control consistent with these rights. Specifically, the HOA, at its
sole cost and expense, shall be responsible for the operation and maintenance of the
Harford Gate subject to the rights of the parties as set forth herein.
15. Nothing in this MOU or the finalized settlement documents shall be
construed as the acquiescence or approval by the HOA of any current or future use
or development of the golf resort property.
Access for ABR owners and employees.
16. ABR shall have 24/7 access at the Harford and Sparrows gate for
installation, repair, replacement or maintenance of the East Harford Canyon water
wells, facilities and related work. ABR will identify designate in writing to HOA
the persons and vehicles authorized for access on a timely basis. The Sparrow gate
may be used for such access only when reasonably necessary for access to large
equipment necessary to perform maintenance, repair and replacement work on the
East Harford Canyon water wells, facilities and access thereto for access for large
equipment when necessary and when cannot be brought through the Harford gate.
There shall be no access through the Sparrow gate for equipment used on the golf
resort property.
17. The HOA will also allow access from 7:00 AM to 12:00 AM for up to
fifteen (15) ABR owners and employees, as designated in writing from time-totime,
for use at the Bay Laurel Coffeeberry gate only, for reasons related to ABR
business. Of the foregoing 15 passes, no van or other multi-passenger transport
vehicle shall be of a size that exceeds 12 persons. Access is for passenger vehicles
(including small trucks and vans) only. No commercial or construction vehicles
shall be permitted to have passes or access.
18. The passes set forth in Paragraph 17 shall be used for ingress and egress to
SLBE only for reasons related to ABR’s business operations on the golf resort
property but shall not include construction purposes except as necessary to
improve, maintain, repair and replace the East Harford Canyon water wells,
facilities, access and related work. The foregoing passes may not be used for any
other purposes, including without limitation, non-business or recreational purposes,
such as hiking, biking, sight-seeing or for ABR employees taking a “short cut” to
work. Nothing in this section shall be construed to prevent an authorized vehicle
from access to and use of the Loop Road for the purpose of transporting proceeds
from ABR property after an event for security purposes.
Rossi Parcels
19. Deleted
Misc.
20. Settlement documents will include provisions such that new and restated use
rights are covered by these documents and supersede all other use rights and claims.
Existing utility easements shall remain in place.
21. Assessments: HOA needs new assessment calculations based on new burdens
and impacts. The HOA shall propose such new assessment calculations within
30days of full execution of this MOU. If the parties are unable to agree to such
assessments within 30 days thereafter, the parties shall submit the matter to a one
day binding mediation with Scott Radovich.
22. Each party shall bear their own costs and attorney fees in connection with
the prosecution, defense, and settlement of the pending litigation.
23. The mutual release or releases contemplated shall include officers, agents,
representatives, members, employees, attorneys, successors and assigns and shall
contain the following recital of California Civil Code sec. 1542, with possible
exceptions or “carve outs” as needed: “A general release does not extend to claims
that the creditor or releasing party does not know or suspect to exist in his or her
favor at the time of executing the release, and that, if known by him or her, would
have materially affected his or her settlement with the debtor or released party.”
(Carve outs referenced are such things as non-access easement obligations,
assessments, shared maintenance costs, contractual obligations, Rossi/Harford
Parcels 1 and 2, etc.)
24. The parties will incorporate the terms of the final settlement documentation
in a master settlement agreement, so that the terms and conditions of the settlement
agreement (not this MOU) may be enforced by either party under Code of Civil
Procedure Section 664.6. The real property use and rights per cases #1 and #2,
respectively, shall be set forth in recordable documents as provided for above. In
the event of any action or proceeding to enforce the terms of the final settlement
documents, either under Section 664.6 or otherwise, the prevailing party shall be
entitled to an award of costs and reasonable attorneys’ fees. Both lawsuits shall
dismissed in their entirety, with prejudice, with the court reserving jurisdiction for
enforcement purposes as stated above.
25. Each of the individuals whose signature appears below represents and
warrants that he or she has full authority to execute this Agreement on behalf of the
party on whose behalf he or she has affixed his or her signature to this Agreement.
26. The parties agree to sign this MOU to reflect the tentative agreements
reached through mediation, and with the intent to jointly represent to the court in
the litigation that a tentative settlement of the entire litigation has been reached
through mediation. The final enforceable settlement shall be reflected in the
settlement agreement documents, as is set forth in this MOU. Plaintiffs shall
provide the court with a Notice of Settlement on the tentative basis provided for in
this MOU.
27. This MOU may be executed in one or more counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same instrument.
In addition, this MOU may contain more than one counterpart of the signature page
and may be executed by the affixing of the signatures of each of the parties to any
one of such counterpart signature pages.; all of such counterpart signature pages
shall read as though one and they shall have the same force and effect as though all
of the signers had signed a single signature page.