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PW Construction/Settlement on Vista Dunes & City Hall 10SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (hereinafter the "Agreement") is entered by and between the CITY OF LA QUINTA, a public entity ("City") and PW CONSTRUCTION, INC., a California Corporation ("PW") (collectively referred to as the "Parties") with reference to the following facts: Recitals A. The Ci[y and PW are parties to that certain lawsuit known as PW Construction, Inc. vs. City of La Ouinta, Riverside County Superior Court Case No. INC 018454 ([he "Action"). The Action arose out of three professional service agreements ("PSAs") between the City and PW relating [o three public works projects with the City. These projects included the construction of affordable housing units ("Vista Dunes Project"), the expansion and improvement of La Quinta City Hall ("City Hall Project"), and improvements to the City's Museum ("Museum Project'). These projects are collectively referred to as [he "Projects." B. By this Agreement, City and PW intend and desire to avoid the expense and uncertainty of litigation relating to PW's claims and to settle al] claims arising from the PSAs and the Action. Terms of Settlement NOW THEREFORE, in consideration of the mutual covenants set forth herein, the Paz[ies agree as follows: 1. Obligations of City. Within seven (7) business days after execution of this Agreement by all parties, City shall pay a total of $295,000 to PW by a check made payable to "PW Construction, Inc:' and delivered to PW's counsel of record. This sum constitutes payment in full for all claims by PW arising out of the Action, and the Projects. 2. Obligations of PW. Upon receipt of the payment referenced in Section 1 of this Agreement, PW shall immediately file a dismissal of [he entire Action, with prejudice. 3. Allocation of Settlement. The Parties agree that $170,000 of the sum payable under this Agreement is allocated solely to PW's claims relating to the Vista Dunes Project, and [hat $125,000 of the sum payable ender this Agreement is allocated solely to PW's claims relating [o the City Hall Project. 290IO15610-0117 IOA9967.01 a0fi/O8/10 4. No Admission of Fault. This Agreement is a compromise and settlement of disputed claims. Nothing in [his Agreement shall be interpreted, used, or construed as an admission of fault or wrongful conduct of any kind by any of [he Parties. 5. Release. In consideration for the agreements as set forth herein, PW and [he City, on behalf of themselves and their owners, heirs, successors, assigns, insurers, lenders, lien holders, attomeys, agents, and other representatives do hereby release each other, and [heir councilmembers, mayors, officials, boards, commissions, managers, employees, attorneys, insurance companies, agents, and other representatives, 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 attomeys' fees, of any nature whatsoever, known or unknown, fixed or contingent, arising out of, based upon or relating to the Projects and the PSAs. (b) Waiver of Civil Code Section 1542: By releasing and forever dischazging claims both known and unknown as above provided, PW and the City 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 FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." The Parties waive and relinquish any rights and benefits which they have or may have under section 1542 of the Civil Code of the State of California. The Parties have performed a full and complete investigation of the facts pertaining to the settlement. Nevertheless, the Parties acknowledge that they aze 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 this 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 against each other, arising out of [he Projects, and [he PSAs and, in furtherance of this intention, the release herein given shall be and remain in effect as a full and complete general release notwithstanding discovery or existence of any such additional or different facts. 6. Entire Agreement. This Agreement sets forth the entire agreement of the Forties 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 by the parties. This Agreement shall be binding upon and inure [o the benefit of the Pazties, their 29NOISfi10-0113 108996].01 a06/08/IO _2_ respective representatives, shazeholders, officers, directors, employees, affiliates, successors, heirs and assigns. 7. Warranty. The Parties hereby expressly warrant and represent that [hey have no[ transferred or assigned or attempted to transfer or assign any of the claims released hereunder. The persons signing this Agreement hereby warrant that they have the power and authority to bind any party on whose behalf this Agreement is signed. 8. Controlling Law. This Agreement shall be interpreted and construed in accordance with the law of [he State of California. 9. Attorneys' Fees and Costs. The Parties shall bear all of their own respective costs and attorneys' fees incurred relating to the Action. 10. Severability If any provision and/or par[ 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. ]]. Counterparts. This Agreement may be executed in counterparts and by facsimile or other electronic delivery. 12. Review of Agreement. The Parties each acknowledge and represent that they have read [his Agreement, have had the opportunity [o consult with their respective attorneys concerning its contents and consequences, [hat the Agreement is being executed solely in reliance on [heir respective judgment, belief and knowledge of the matters set forth herein and on the advice of their respective attorneys. 13. Neutral Interpretation. The Parties agree that all parts of this Agreement shall in all cases be construed as a whole according [o their fair meaning and shall no[ be construed strictly for or against any pazty hereto. 290PoISfi10-0113 10899fir.01 a06/OB/10 _3_ 14. Modification. This Agreement shall not be modified, amended or supplemented unless such modifications, amendments or supplements are in writing and signed by each pazty to this Agreement. below. IN WITNESS WHEREOF, the pazties have executed this Agreement on the date set forth PW CONSTRUCTION, INC. By: Its: