Weitz Golf/Settlement Agreement 06SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreemenn, is entered into on December
1, 2006, ("Effective Date'l in La Quinta, California by and among the La Quinta
Redevelopment Agency and the City of La Quinta (collectively "La Quinta") and Weitz Golf
Construction, Inc. ("Weitz"). In this Agreement, La Quinta and Weitz are sometimes referred
to collectively as the "Parties" and individually as a "Party.'."
RECITALS
A. In March 2004, La Quinta and Weitz entered into a contract for Weitz to
construct certain improvements to the Silver Rock Ranch Golf Course (the "Project"), a
public work of improvement, in exchange for a fixed price payment from La Quints (the
"Contract'.
B. During the Project, Weitz claimed La Quints breached the contract by failing
to provide access to the site as represented in the Contract, by providing inadequate plans and
specifications, ordering extra work for which it failed to pay and failing to timely release
retention payment to Weitz.
C. La Quints denied Weitz' contentions and made claims that Weitz failed to
honor warranty claims and timely complete obligations of the Contract.
D. Weitz filed claims pursuant to the procedures set forth in the Contract,
California Public Contract Code and California Government Code. After the claims remained
unresolved, Weitz filed Riverside Superior Court Case No. INC057961 (the "Action") against
La Quinta.
E. The Parties wish to settle the Action and release certain claims and/or
liabilities pursuant to the terms of this Agreement.
TERMS AND CONDITIONS
For good and valuable consideration, the receipt of which is acknowledged, the Parties
agree as follows:
1.0 PAYMENT AND RELATED PROVISIONS
1.1 moment By La Quints To Weitz
Within fourteen (14) business days after execution of this Agreement by all parties La
Quints will pay Six Hundred Twenty -Five Thousand Dollars and No Cents ($625,000.00) (the
"Settlement Sum") by a single check payable to "Weitz Golf Construction, Inc." and
delivered to Weitz Golf Construction, Inc., 43525 Ridge Park Drive, Suite 200, Temecula,
California, 92590. Upon payment of the Settlement Sum, Weitz shall file a dismissal with
prejudice of the Action.
Initials:
La Quinta Weitz
1.2 No Admission of Fault
This Agreement is a compromise and settlement of disputed claims. 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.
1.3 Attorneys Fees and Costs
Each Party shall bear their own attorneys' fees and costs incurred relating to the
Action.
2.0 RELEASE
2.1 Release Of Claims By Weitz
Except as reserved in section 2.4 below, Weitz releases and discharges all claims of
every kind whatsoever (including without limitation claims for fraud, breach of contract,
breach of fiduciary duty, negligence, breach of statutory duties, compensatory damages,
penalties, punitive damages, specific performance, injunctive or declaratory relief, costs,
attorneys' fees and/or expert fees) whether known or unknown, which Weitz or any of its
agents, shareholders, representatives or employees, asserts or could assert against La Quints,
or its councihnembers, mayors, officials, boards, commissions, managers, insurers, agents,
shareholders, representatives, or employees based upon or arising out of the Project and the
Action or any other matter or event occurring on or prior to the Effective Date and relating to
the Project ("Weitz Releases").
2.2 Release Of Claims By La Quints
Except as reserved in section 2.4 below, La Quinta releases and discharges all claims
of every kind whatsoever (including without limitation claims for fraud, breach of contract,
breach of fiduciary duty, negligence, breach of statutory duties, violation of Contractors State
License laws, surety bond claims, compensatory damages, penalties, punitive damages,
specific performance, injunctive or declaratory relief,, costs, attorneys' fees and/or expert fees)
whether known or unknown, which La Quints or any of its councilmembers, mayors,
officials, boards, commissions, managers, insurers, agents, shareholders, representatives, or
employees, asserts or could assert against Weitz, or its agents, shareholders, representatives,
sureties, insurers or employees based upon or arising out ofthe Project and the Action or any
other matter or event occurring on or prior to the Effective Date and relating to the Project
("La Quints. Releases").
2.3 Released Matters
The Weitz Releases and the La Quinta Releases are collectively referred to as the
"Released Matters."
Initials:l a
La Quints Mitz
2.4 Matters Not Included In The Released Matters
2.4.1. The Released Matters do not include any liability or obligation created by this
Agreement.
2.4.2. The Released Matters do not'include and the Parties retain all rights and
obligations with respect to one another for any unasserted or unknown claims by any third
party for death or bodily injury to persons, for injury or damage to property, and such claims
are not included in the Released Matters. Those rights and obligations shall survive as they
would have existed in the absence of this Agreement.
2.4.3. The Released Matters do not discharge or waive rights or obligations of the
Parties relating to presently unknown deficiencies in the work performed or materials or
equipment supplied to the Project. All defenses of Weitz to claims relating to any defects are
expressly reserved. As of the date of the execution of this Agreement, the City is unaware of
any defect claims arising out of the work performed or materials or equipment supplied to the
Project, except for a possibly malfunctioning 18-inch overflow line running from the Hole
No. 2 Lake to the Hole No. 7 Lake. The defect relating to this 18-inch line is not included in
the Released Matters. The term "deficiencies" does not included warranty claims. The
parties agree the warranty period of the Contract has expired and such claims are included in
the Released Matters.
2.5 Waiver Of Rights Pursuant To Civil Code Section 1542
With respect to the Released Matters, each Party expressly waives any and all rights
which it may have under the provisions of section 1542 of the California Civil Code, which
section reads as follows:
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.
Thus, with knowledge of the provisions of section 1542, and for the purpose of
implementing a full and complete release of the Released Matters, each Party acknowledges
this Agreement is intended to include in its effect, without .limitation, all of the claims that
were or could have been raised, even those which a Party did not know of or suspect to exist
in its favor at the time of execution of this Agreement and that this Agreement contemplates
extinguishment of all such claims that were or could have been raised, even those which
would have materially affected the releasing Party's decision to enter into this Agreement.
Initials:✓
La Quinta eitz
3.0 GENERAL PROVISIONS
3.1 - Admissibility Of Release
No evidence of this Agreement or any of its terms, and no evidence of any discussion
or communications made or information or materials ttansm itted in the course of negotiations
for this Agreement, shall be admissible or presented in any action or proceeding before any
court, agency, or other tribunal, as evidence of or relevant to any Released Matters, or as
evidence that a Party or any of their respective agents, shareholders, representatives or
employees have committed any violation of contract or law, or are liable to any person for any
reason other than for the enforcement of this Agreement.
3.2 No Reliance
Each Party acknowledges: (i) this Agreement is the resolution of a fully matured set of
facts and each Party individually declares and represents it is executing this Agreement in
reliance solely on its own judgment, belief, and knowledge of the facts surrounding the
transactions described in this Agreement, (ii) this Agreement is made without reliance upon
any statement or representation not contained in this Agreement of any other Party, or any
representative, agent or attorney of any other Party; (iii) no ,promise,driducement or agreement
not expressed in this Agreement has been made to any Party; and (iv) the recitals, terms and
conditions contained in this Agreement are contractual and not mere recitals.
3.3 Discovery
Each Party acknowledges it may subsequently discover facts different from, or in
addition to, those which it now believes to be true with respect to the Released Matters, and
agree this Agreement shall be and remain effective in all respects notwithstanding such
different or additional facts.
3.4 Opportunity For Advice Of Attorneys
Each Party further represents, warrants and agrees that in executing this Agreement, it
does so with full knowledge of any and all rights which it may have with respect to the other
Party and that each Party has received, or had the opportunity to receive, independent legal,
advice from such Parry's attorneys with respect to the facts involved in the controversy
compromised by this Agreement and with regard to such Parry's rights and asserted rights
arising out of such facts.
3.5 Assignment Of Rights
Each Party represents and warrants it has not assigned its rights in any of its claims
against the other to any other person or entity and each Party has full authority to bind the
Party for which it signs to this Agreement.
Initials:
La Quinta Weitz
3.6 Entire Agreement
The provisions of this Agreement constitute the entire agreement among the Parties
and supersede all prior negotiations, proposals, agreements and understandings regarding the
subject matter of this Agreement.
3.7 Additional Documents
The Parties agree to perform such further acts and to execute and deliver such further
documents as may be reasonably necessary or appropriate to carry out the intent or provisions
of this Agreement.
3.8 Assignees
This Agreement shall bind and inure to the benefit of the successors and assigns of the
Parties, and to all affiliates, dba's or any other associated entities.
3.9 Interpretation Of Agreement
ement
This Agreement and its provisions shall not be construed or interpreted for or against
any Party because that Party drafted or caused the Party's attorney to draft any of its
provisions.
3.10 Execution In Counterparts
This Agreement may be signed by the Parties in multiple counterparts, all of which shall
be taken together as a single document. A facsimile signature: constitutes an original and all
evidentiary objections to same other than for authenticity of signature are waived.
3.11 No Promise Or Warranty
No promise or warranty shall be binding on any Party except as expressly contained in
this Agreement.
3.12 Attorneys' Fees
Should either Party initiate any action at law or in equity to enforce or interpret the
terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable
attorneys' fees, costs and necessary disbursements against the non -prevailing Party, in
addition to any other appropriate relief.
3.13 Modification
No modification of this Agreement shall be valid unless agreed to in writing by the
Parties.
Initials:
La Quints, Weitz
3.14 Choice Of Law
This Agreement shall be construed and enforced in accordance with the laws of the
State of California and the Parties agree the court in the Acti on shall retain jurisdiction for
purposes of enforcing this Agreement.
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS
A GENERAL RELEASE OF CLAIMS KNOWN AND UNKNOWN.
The Parties have executed and delivered this Agreement consisting of six (6) pages.
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Initials: �/
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