SDCo Escrow Disbursement Request 33 (2018-08-30)August 30, 2018
Frank Spevacek
CITY OF LA QUINTA
78495 Calle Tampico
La Quinta, CA 92253
THE
ROBERT GREEN
COMPANY
via ema i l
SUBJECT: SILVERROCK GOLF COURSE REALIGNMENT PROJECT-Request #33 for Escrow Disbursement
Dear Mr. Spevacek,
As required by PSDA Amendment #2 and the attendant "Golf Course Realignment Funds Disbursement
Agreement" executed on May 10, 2017, Si lverRock Development Company, LLC respectfully requests a
disbursement from escrowed proceeds per the attached request.
This request is to compensate Urban Habitat Environmental Landscape for general contractor services billed i n
association with the golf realignment. Payment constitutes the first is in accordance with the enclosed
executed SETILEMENT AGREEMENT & MUTUAL GENERAL RELEASE" executed by and between SilverRock
Development Company and Urban Habitat effective July 24, 2018. It is our understanding that a partial release
of the Stop Payment Notice filed by Urban Habitat on March 2, 2018 was delivered by The r esa Brennan
yesterday.
This disbursement will zero the balance in the golf realignment escrow account and it will be closed .
Sincerely,
0
A Delaware imited Liability company
By: RGC La Quinta LLC
A Delaware Limited Liability company
Its Managing member
By: The Robert Green Company
A California Corporation
Its: Project Executive, on behalf of Robert S. Green, President
cc : Robert S. Green
Attachments;
Ed Boyd Sonya Murillo Greg Markow
Settlement Agreement: Urban Habitat v. Silver Rock Development Company, LLC Page 1
SETTLEMENT AGREEMENT & MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release (the “Agreement”) is entered into
effective as of the 24th day of July 2018 by and between Plaintiff Urban Habitat Environmental
Landscapes, California Contractors License #963744 (“Plaintiff” or “UHEL”), on the one hand, and
Defendant Silver Rock Development Company, LLC, a Delaware limited liability company (“SDC” or
“Defendant”), on the other hand. Plaintiff and Defendant are individually referred to as a “Party” and
collectively referred to as the “Parties.”
R E C I T A L S
This Agreement is made with respect to the following recitals of fact:
A. SDC is the developer of real property at Arnold Palmer Golf Course at the Silver Rock
Resort, on land owned by the City of La Quinta (the “City”) in the County of Riverside, State of California
(the “Property”). SDC is performing a development project associated with the Arnold Palmer Golf Course
at the Silver Rock Resort (the “Project”). UHEL and SDC entered into a written contract entitled “Standard
Form of Agreement Between Owner and Contractor for a Project of Limited Scope” dated May 9, 2017, and
executed on or about May 21, 2017 (the “Contract”) for hole realignment, landscaping, irrigation and
related construction work as a part of the Project (the “Work”). The original contract price was
$1,799,049.00 (the “Original Contract Price”).
B. Plaintiff commenced and performed Work required by the Contract.. By the conclusion of
the Work, the Original Contract Price had increased, although the Parties disagreed as to the amount of the
“Final Contract Price.” SDC has to date paid UHEL a total of $1,459,760. SDC disputed its obligation to
pay the total amount demanded by UHEL. As a result, on March 2, 2018 Plaintiff served a stop notice on
the City in the amount of $663,678.57 (the “Stop Notice”). The total amount claimed by Plaintiff is called
the “Unpaid Balance.” SDC denies and disputes that it owes UHEL the Unpaid Balance.
C. On May 31, 2018, UHEL filed a Complaint against SDC, the City and certain Doe
Defendants (the “Complaint”) in the Superior Court of the State of California in the County of Riverside, to
commence that action with Case No. PSC 1803155 (the “Action”) seeking to recover the Unpaid Balance
as well as unpaid interest, costs and attorneys’ fees. The Complaint has not yet been served.
D. The Parties discussed settlement and went to a mediation before Stacy LaScala at JAMS
on July 24, 2018, and to avoid the uncertainties and expense of further litigation have agreed to resolve all
their disputes and dismiss the Action and release the Stop Notice and release each other, as set forth in
this Agreement, on the terms and conditions set forth below.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual promises and covenants in this Agreement, the
Parties agree as follows:
1. PAYMENT TO UHEL:
Settlement Agreement: Urban Habitat v. Silver Rock Development Company, LLC Page 2
(a) The Parties agree that the Final Contract Price is $1,960,000. SDC shall pay UHEL the
Unpaid Balance which is the total sum of five-hundred thousand, two-hundred forty dollars ($500,240.00)
(the “Settlement Amount”). The Settlement Amount will be paid in two installments, as follows:
(b) The first installment shall be the sum of $243,000 and is payable on or before September
4, 2018, subject to the provisions of Paragraph 4 below.
(c) The second installment shall be the sum of $257,240.00, which must be paid on the
earlier of (i) the next business day after the Loan Funding Date, as defined, below, or (ii) March 31, 2019.
2. REPRESENTATIONS & WARRANTIES BY SDC: SDC represents and warrants that it is
applying for a commercial development loan in connection with the Project and that it expects to fund the
loan in late 2018 (the “Loan Funding Date”).
3. DISMISSAL OF ACTION: Upon (a) execution of this Agreement by all Parties, and (b)
Plaintiff’s receipt of the full Settlement Amount, counsel for Plaintiff shall promptly execute a Request for
Dismissal of the Complaint with prejudice (the “Request for Dismissal”) and shall promptly file the same
with the Court. The Request for Dismissal shall indicate that the Court retains jurisdiction under Section
664.6 to enforce this settlement as applicable. Plaintiff shall file a Notice of Settlement with the Court within
three (3) business days after execution of this Agreement.
4. RELEASE OF STOP NOTICE: The first installment payment of $243,000 will be paid in
part from the proceeds of an escrow account held by the City of La Quinta. The City of La Quinta will not
release the funds to SDC to allow SDC to pay the entire first installment until the City of La Quinta receives
from Plaintiff a partial release of its stop notice. Plaintiff shall satisfy the City of La Quinta regarding the
stop notice, including signing and delivering a partial release of the stop notice, sufficient so that the City of
La Quinta releases the funds in the escrow to SDC. Within one business day of the City of La Quinta
releasing the escrow sum to SDC, SDC shall pay such released escrow sum to Plaintiff, up to the entire
remaining amount due on the first installment. Plaintiff shall sign and deliver a notarized release of the
Stop Notice to the City the next business day after its receipt of the full Settlement Amount.
5. INDEMNIFICATION. UHEL shall defend, indemnify and hold harmless SDC from and
against any damages, costs or attorneys’ fees paid or incurred as a result of any third-party claims, suits,
liens, or judgments against SDC brought by any of UHEL’s suppliers, vendors, subcontractors, material
suppliers, or others who worked on behalf of or provided materials to UHEL in performing the Work under
the Contract at the Project. For the avoidance of doubt, this indemnification expressly excludes any claims
against SDC based separate agreements with SDC for work outside the scope of the Contract, such as
Granite Construction Company. In the event a third-party claim is made against SDC for which it claims
indemnity under this provision, SDC shall tender it to UHEL at the first opportunity, and SDC shall be
defended by counsel of UHEL’s choice and UHEL shall have the right to control such defense, and UHEL
shall defend such claims so that they do not affect title to the Project or otherwise materially interfere with
SDC’s ability to obtain financing for the Project. SDC represents and warrants that at this time it is not
aware of any claims or potential claims for which it may seek indemnity under this provision.
6 GENERAL RELEASE BY DEFENDANT: In consideration for the releases made pursuant
to this Agreement, the release of the Stop Notice, the dismissal of the Action and other promises and
consideration set forth in this Agreement, and effective upon its payment of all of the Settlement Payment
Settlement Agreement: Urban Habitat v. Silver Rock Development Company, LLC Page 3
to UHEL, SDC, on its own behalf and also on behalf of all of its employees, officers, directors,
shareholders, members, managers, interest holders, representatives, agents, insurers, and any parent,
subsidiary, division, affiliated or related companies, as well as on behalf of any and all successors, assigns,
predecessors and/or successors-in-interest regarding the subject matter of this Agreement (collectively the
“Defendant Releasors”) do by this instrument fully and forever remise, release and discharge UHEL and
its principals, agents, officers, directors, shareholders, members, managers, interest holders, attorneys,
employees, representatives, subcontractors, suppliers, insurers, successors and assigns, and, if applicable,
their partners, beneficiaries, and any parent, subsidiary, division, affiliated or related companies and their
respective predecessors, successors and assigns (collectively the “Defendant Releasees”) from ANY
AND ALL sums of money, accounts, claims, demands, contracts, actions, debts, defects, delays, acts of
negligence, violations of law or good construction practice, controversies, agreements, liabilities,
obligations, warranties, damages and causes of action whatsoever, of whatever kind or nature, whether
known or unknown, fixed or contingent, or suspected or unsuspected by them which any of them now
owns, holds, has or claims to have, or at any prior time owned, held, had or claimed to have against any of
the Defendant Releasees up to and including the date of execution of this Agreement, including but not
limited to claims arising out of and/or relating to the Contract, the Work, the Project, the Property, the Stop
Notice, the Complaint and/or the Action (collectively, the "Defendant Claims"). The Defendant Releasors
understand, acknowledge and agree that this Release may be pleaded as a full and complete defense to
any claim, demand, action, or other proceeding which may be brought by or on behalf of any Defendant
Releasor relating to the Defendant Claims released in this Agreement. Notwithstanding anything to the
contrary in this Paragraph or this Agreement:
(a) This Release does not apply to any obligations expressly created or affirmed pursuant to this
Settlement Agreement.
7. GENERAL RELEASE BY UHEL: In consideration for the releases made pursuant to this
Agreement and other promises and consideration set forth in this Agreement, and effective upon receipt of
all of the Settlement Payment and clearance at UHEL’s Bank, UHEL on its own behalf and also on behalf of
all of its employees, officers, directors, shareholders, members, managers, interest holders,
representatives, agents, insurers, and any parent, subsidiary, division, affiliated or related companies, as
well as on behalf of any and all successors, assigns, predecessors and/or successors-in-interest regarding
the subject matter of this Agreement (collectively the “UHEL Releasors”) does by this instrument fully and
forever remise, release and discharge SDC and its principals, agents, officers, directors, shareholders,
members, managers, interest holders, attorneys, employees, representatives, insurers, successors and
assigns, and, if applicable, their partners, beneficiaries, and any parent, subsidiary, division, affiliated or
related companies and their respective predecessors, successors and assigns (collectively the “UHEL
Releasees”) from ANY AND ALL sums of money, accounts, claims, demands, contracts, actions, debts,
defects, delays, acts of negligence, violations of law or good construction practice, controversies,
agreements, liabilities, obligations, warranties, damages and causes of action whatsoever, of whatever kind
or nature, whether known or unknown, fixed or contingent, or suspected or unsuspected by them which any
of them now owns, holds, has or claims to have, or at any prior time owned, held, had or claimed to have
against any of the Defendant Releasees up to and including the date of execution of this Agreement,
including but not limited to claims arising out of and/or relating to the Contract, the Work, the Project, the
Property, the Stop Notice, the Complaint and/or the Action (collectively, the "UHEL Claims"). The UHEL
Releasors understand, acknowledge and agree that this Release may be pleaded as a full and complete
defense to any claim, demand, action, or other proceeding which may be brought by or on behalf of any
Settlement Agreement: Urban Habitat v. Silver Rock Development Company, LLC Page 4
UHEL Releasor relating to the UHEL Claims released in this Agreement. Notwithstanding anything to the
contrary in this Paragraph or this Agreement:
(a) This Release does not apply to any obligations expressly created or affirmed pursuant to this
Settlement Agreement.
8. UNKNOWN CLAIMS: The Defendant Releasors and the UHEL Releasors (collectively the
“Releasors”) acknowledge that there is a risk that subsequent to the execution of this Agreement, one or
more of them will discover facts or will discover, suffer or incur actions, claims, debts, liabilities, demands,
obligations, costs, expenses, attorney's fees, actions or causes of action which were unknown or
unanticipated at the time of this Agreement which may have materially affected their respective decisions to
give the Releases contained in this Agreement (collectively the "Unknown Claims"). Despite this
knowledge and understanding, the Releasors understand and agree: (1) that he, she and/or it is assuming
the risk of each and every Unknown Claim, and (2) that, except as set forth in subparagraphs (a) in the two
preceding paragraphs, he, she and/or it is releasing all claims of every kind or nature whatsoever, known or
unknown, suspected or unsuspected, and each expressly waives all rights under Section 1542 of the Civil
Code of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS, HER OR ITS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM, HER OR IT MUST HAVE MATERIALLY AFFECTED HIS, HER OR ITS
SETTLEMENT WITH THE DEBTOR.
9. NOTICES: Any notice permitted or required under this Agreement may be given by
facsimile or electronic mail, so long as the transmittal record shows that the transmission was complete and
a backup copy is sent by U.S. Mail. If to Plaintiff, the notice shall be to Theresa Gilmore, P.O. Box 1177, La
Quinta, CA 92247, e-mail: Theresa@myurbanhabitat.com and its counsel: Thomas N. FitzGibbon, Apex
Law, APC, 233 Wilshire Blvd., Suite 400, Santa Monica, California 90401, Fax (310) 496-3175 and e-mail:
tom@apexlaw.com. If to Defendant, it shall be sent to: John Gamlin, Silver Rock Development Company,
LLC, 3551 Fortuna Ranch Road, Encinitas, CA 92024 and email John Gamlin
John@therobertgreencompany.com with a copy to its counsel: Gregory Markow, Crosbie Gliner Schiffman
Southard & Swanson LLP LLP, 12750 High Bluff Drive, Suite 250, San Diego, California 921320, CA
92262, Fax (858)345-1991 and e-mail gmarkow@cgs3.com.
10. COSTS AND ATTORNEYS FEES: Each Party to this Agreement waives any costs,
attorneys’ fees and/or claims against any other Party and/or its counsel based on the Contract, the Work,
the Stop Notice, the filing of the Complaint and/or prosecution or defense of the Action. Each party shall
bear its own costs and attorneys’ fees in connection with the settlement of the Action and the negotiation
and drafting of this Agreement. In the event that any Party breaches this Agreement, the non-breaching
Party shall be entitled to all reasonable attorneys’ fees and costs incurred to enforce this Agreement.
11. ENFORCEMENT OF AGREEMENT: This Settlement Agreement may be enforced in any
appropriate or applicable manner, including but not limited to as provided for under Code of Civil Procedure
Section 664.6 by Motion to Enforce Settlement and the Parties expressly agree and consent that the
Superior Court of the State of California, County of Riverside, Palm Springs Branch, shall retain jurisdiction
Settlement Agreement: Urban Habitat v. Silver Rock Development Company, LLC Page 5
over this action and each of the Parties for the purposes of enforcing this Settlement Agreement, if
necessary.
12. SUBJECT HEADINGS: The subject headings of the paragraphs of this Agreement are
included solely for purposes of convenience and reference only, and shall not be deemed to explain,
modify, limit, amplify or aid in the meaning, construction or interpretation of any of the provisions of this
Agreement.
13. AMENDMENTS: Unless expressly permitted by this Agreement, no supplement,
modification or amendment of any term, provision or condition of this Agreement (including this Paragraph)
shall be binding or enforceable unless evidenced in a writing executed by all of the Parties to this
Agreement.
14. ENTIRE AGREEMENT AND WAIVER: This Agreement contains the entire agreement
between its Parties and supersedes all prior and contemporaneous agreements, arrangements,
negotiations and understandings between such Parties, relating to the subject matter of this Agreement.
There are no other agreements, understandings, statements, promises or inducements, oral or otherwise,
contrary to the terms of this Agreement between the Parties. No representations, warranties, covenants or
conditions, express or implied, whether by statute or otherwise, other than as set forth in this Agreement,
have been made by any Party to this Agreement. No waiver of any term, provision, or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall
constitute, a waiver of any other provision of this Agreement, whether or not similar, nor shall such waiver
constitute a continuing waiver, and no waiver shall be binding unless executed in writing by the Party
making the waiver.
15. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective representatives, successors and permitted assigns.
16. NO ASSIGNMENT: Neither this Agreement nor any of the rights or obligations under it
shall be assignable by any Party without the written consent of each and every one of the other Parties
(which consent shall not be unreasonably withheld) and any attempted assignment without such written
consent shall be void and confer no rights upon any third party. The Parties represent that none of them
have assigned any claims held by them against any other Party to any entity or person.
17. APPLICABLE LAW: This Agreement shall be governed exclusively by and construed and
enforced exclusively in accordance with and subject to the law of the State of California without regard to its
choice of law provisions, except in the event of bankruptcy by any Party, in which event the laws of the
United States shall also apply, where appropriate.
18. REPRESENTATION BY COUNSEL: Each Party has had the opportunity to be
represented by counsel of its choice with regard to the negotiation of this Agreement. Each Party is
entering into this Agreement deliberately, advisedly, and of its own free will and volition. The Parties agree
that each Party and its counsel, if any, have reviewed this Agreement and that any rule of construction to
the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation
of this Agreement. In this Agreement the neuter gender includes the feminine and masculine and the
singular includes the plural (and vice versa), and the words "person" and "Party" include corporation,
partnership, firm, trust or association wherever the context so requires.
Settlement Agreement: Urban Habitat v. Silver Rock Development Company, LLC Page 6
19.. AUTHORITY TO ENTER INTO AGREEMENT: The Parties and the undersigned represent
and warrant that they have reviewed this Agreement with their respective attorneys, if any, and that they
have authority to enter into and to sign this Agreement on behalf of the Parties for which they are signing.
20. FURTHER ASSURANCES: The Parties shall provide such further assurances as may be
reasonably necessary to implement this Settlement Agreement, and to execute any and all additional and
supplementary documents which may be necessary and appropriate to do the same.
21. SEVERABILITY: In the event that any condition, term or covenant is held to be invalid or
void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this
Agreement and shall in no way affect any other covenant, term or condition. If such condition, term,
covenant or other provision shall be deemed invalid due to its scope or breadth, such provisions shall be
deemed valid to the fullest extent permitted by law.
22, NO ACTIONS PENDING: The Parties represent that they have not commenced or
prosecuted and will not commence or prosecute any action or proceeding, other than the Action which is
the subject of the Complaint, against any other Party to this Agreement or any person whatsoever with
respect to the matters released in this Agreement.
23. COUNTERPARTS: The Agreement may be executed in counterparts, each of which shall
be deemed an original, and each of which shall constitute together one and the same instrument. The
counterparts will be binding on each of the Parties, even though the various Parties may have executed
separate counterparts. The counterparts may be transmitted to the other Party via facsimile or via
electronic mail transfer of an attachment containing an electronic scanned image, if such counterpart is
sent to all other Parties to this Agreement or their respective counsel. In the event facsimile or electronic
counterparts are used, they shall have the same force and effect as an original signature, as provided in
the California Evidence Code.
24 EFFECTIVE DATE: The Effective Date of this Agreement shall be July 24, 2018.
Date: July 24, 2018 Urban Habitat Environmental Landscapes
By: ______________________________
Theresa Brennan
Its: President
Settlement Agreement: Urban Habitat v. Silver Rock Development Company, LLC Page 7
Date: July 24, 2018 Silver Rock Development Company, LLC
A Delaware limited liability company
By: The Robert Green Company, Inc.
Its: Manager
By: ______________________________
Robert Green
Its: President
APPROVED AS TO FORM:
Date: July 24, 2018 Apex Law, APC
By: ______________________________
Thomas N. FitzGibbon
Attorneys for Plaintiff
Urban Habitat Environmental Landscapes
Date: July 24, 2018 Crosbie Gliner Schiffman Southard & Swanson LLP
By: ______________________________
Gregory Markow
Attorneys for Defendant
Silver Rock Development Company, LLC
No default by Developer remains uncured, and no event has occurred which, with
the giving of notice or the passage of time or both, would constitute a default by
Developer.
Date: ________________________________ ________________________________________
Developer
Designated Representative
PAYMENT APPROVED:
__________________________________________________________
Frank Spevacek, City Manager, City of La Quinta
8/30/2018
WIRE INSTRUCTIONS
In Reference To: SR/Golf Realignment Project/Escrow# 2500656A
Entity: URBAN HABITAT ENVIRONMENTAL LANDSCAPE
Bank Name: US Bank
Routing Number: 122235821
Account Number: 153497609260