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2019 LQ Polo Estates Association - Settlement Agrmt & Mutual ReleaseSETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS This SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS ("Settlement Agreement") is made and entered into as of the AAay of October, 2019 by and between plaintiff La Quinta Polo Estates Association, Inc., a California non-profit mutual benefit corporation ("LQPE") and defendants the City of Indio, a municipal corporation organized and existing under the laws of the State of California ("City"), Coachella Valley Association of Governments, a joint powers authority under the laws of the State of California ("CVAG"), City of La Quinta, a municipal corporation organized and existing under the laws of the State of California, and Granite Construction Company, a California corporation ("Granite") (collectively hereinafter referred to as the "Parties"). The City, CVAG, the City of La Quinta, and Granite are collectively hereinafter referred to as "Defendants." RECITALS A. Granite and The City entered into a written contract pursuant to which Granite agreed to construct the work of improvement described as the Madison Street Improvement Project from Avenue 50 to Avenue 52 (ST503K) (the "Project") in exchange for payment by the City (the "Contract"). B. On or about January 23, 2019, LQPE commenced a civil action entitled La Quinta Polo Estates Association, Inc. v. City ofLa Quinta, et al., Riverside Superior Court Case No. PSC 1900574 ("Action"). In its Complaint, LQPE requests: (1) a temporary restraining order, preliminary injunction, and permanent injunction enjoining Defendants from continuing construction associated with the Madison Street Project on the La Quinta side of Madison Street, (2) declaratory relief that the Madison Street Project violates the Equestrian Overlay regulations per City of La Quinta Municipal Code section 9.110.090, 9.140.060, et seq., that the Madison Street Project has and will continue to cause irreparable harm to the trees located on the City of La Quinta side of Madison Street, that the Madison Street Project is a public nuisance, and that the Madison Street Project is inconsistent with Defendants' project plan, and (3) costs of suit and attorney fees. C. The Parties to the Settlement Agreement, without admission of liability or fault in any way by Defendants, desire to enter into this Settlement Agreement in order to provide for discharge of all claims among the Parties, which are, or might have been, the subject matter of the Complaint upon the terms and conditions set forth below. It is expressly understood, therefore, that the mutual releases contained in this Settlement Agreement are to the fullest extent possible. D. "Released Claims" as referenced in this Settlement Agreement shall collectively mean: (1) all actions, claims, demands, obligations, causes of action, rights, damages, costs, loss of services, expenses and compensation relating to, arising out of, or connected with the Madison Street Project; (2) all actions, claims, demands, obligations, causes of action, rights, damages, costs, loss of services, expenses and compensation relating to rising out of, or connected with the matter that are the subject of the Complaint in Case No. PSC 1900574; and (3) all actions, claims, demands, obligations, causes of action, rights, damages, costs, loss of services, expenses and compensation that were or could have been brought in the Complaint regarding the Madison Street -1- Project and associated trees located on the La Quinta side of Madison Street, including claims that are known or unknown, matured or unmatured, whether at law or in equity, whether for personal injury or property damage, whether before a local, state or federal court, tribunal, administrative agency or commission, and whether now liquidated or unliquidated, whether or not concealed or hidden, asserted or that might have been asserted, including under any federal, state or local consumer protection statute or administrative rules or regulation, or under any other state or federal statutes, or regulations, by the Parties (together with their predecessors, successors, representatives, parents, spouses, siblings, subsidiaries and affiliates, and the heirs, executors, administrators, successors and assignees). E. The Released Claims do not include rights and claims between Granite, CVAG, the City of La Quinta, and the City that do not relate to or arise from the Action. These Parties each reserve any and all rights between or among each other concerning the Contract and the Project. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, the Parties hereby agree as follows: 1.0 Recitals Paragraphs A through E of the preceding Section entitled "RECITALS" are incorporated by this reference and are expressly made as covenants of this Agreement. The foregoing recitals are true and correct. 2.0 Payments and Consideration 2.1 The Cit 's Payment, Within thirty (30) days of receipt by counsel for the City of this fully - executed Agreement, and receipt of the Request for Dismissal described in Paragraph 2.2 below, the City shall cause to be made a payment in the amount of Nineteen Thousand Four Hundred and Forty Dollars ($19,440.00) ("City's Payment") to "La Quinta Polo Estates Association, Inc." and delivered to LQPE's counsel of record in the Action. 2.2 City of La Quinta's Removal of Dead Trees. To the extent trees, as alleged as part of this Action, are located in the City of La Quinta right of way on the La Quinta side of Madison Street, La Quinta will have the obligation to remove any dead trees in accordance with La Quinta's general practices and standards for removing dead vegetation in the right of way within a reasonable time under the circumstances. 2.3 Dismissal of Action with Prejudice; Upon full execution of this Agreement, LQPE shall provide counsel for the City with an executed Request for Dismissal which dismisses the entire action against all Defendants with prejudice. Counsel for the City will not file the Request for Dismissal with the Court until it forwards the settlement check in Paragraph 2.1 to counsel for LQPE. -2- 3.0 Mutual Releases Except for the liabilities and obligations arising out of this Agreement, the Parties, from now and into the future, hereby generally, mutually, fully, finally and forever release, acquit, waive, discharge and exonerate each other and their respective principals, owners, shareholders, partners, attorneys, consultants, experts, guarantors, parent, subsidiaries, affiliates, successors, indemnitors, predecessors, affiliates, assigns, officers, directors, employees, agents, insurance companies, and reinsurance companies from and against any and all existing or past claims, obligations, costs, fees, expenses, damages, compensation, liens, promises, demands, rights, actions, causes of action, litigation and/or liability, of any kind whatsoever, whether known or unknown, contingent or liquidated, relating to or arising from the Action. The Parties represent that they are not presently aware of any existing claims, costs, or obligations against the other, except for what has been alleged by LQPE in the Action. This release shall include all of the Released Claims described in Paragraph D. This release does not include, and Defendants specifically reserve all rights and claims detailed in Paragraph E, above. 4.0 Civil Code Section 1542 Waiver It is understood and agreed that the releases contained herein extend to all claims of every nature and kind whatsoever, known and unknown, and there is expressly released with regard to such claims all rights under California Civil Code section 1542, which provides as follows: 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. The Parties waive any and all rights they may have under Section 1542 as it presently reads or as it shall be amended. In connection with this waiver, the Parties acknowledge that they are aware that they may hereafter discover claims presently unknown or unsuspected or facts in addition to or different from those they now know or believe to be true with respect to the claims released herein. Nevertheless, they intend through this Agreement to release fully, finally, and forever, in the manner described, all claims released. Accordingly, the release shall remain in effect as a full and complete release of the claims released notwithstanding the discovery or existence of any such additional facts or different claims relating thereto. 5.0 Effectiveness This Settlement Agreement shall become effective immediately following execution by the Parties. This Settlement Agreement may be executed in counterparts. 6.0 Construction This Agreement shall be interpreted and governed by the laws of the State of California and shall be construed as if drafted by the Parties, and each of them. %% -3- 7.0 Warranty of Authority Each person who signs on behalf of any party hereto affixing his or her name below thereby warrants and represents that he or she has the full legal authority to bind his or her respective party to all of the terms, conditions, and provisions of this Agreement, that his or her respective party has the full legal right, power, capacity, and authority to enter into this Agreement and perform all of the obligations herein, and that no other approvals or consents are necessary in connection therewith. 8.0 Successors and Assigns This Agreement shall inure to the benefit of, and be binding upon, each of the Parties, and their respective heirs, assigns, and successors in interest. 9.0 Complete Agreement This Agreement is intended by the Parties as a final expression of their agreement and is intended to be a complete and exclusive statement of the agreement and understanding of the Parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the Parties with respect to such subject matter, except between Granite, the City, CVAG, and the City of La Quinta, and the Contract remains in full force and effect and is not superseded by this Agreement. 10.0 Enforcement of Agreement The Parties agree that, in the event of a breach of this Agreement, the aggrieved party shall be entitled to recover from the breaching party, in addition to any other relief provided by law, such costs and expenses as may be incurred by the aggrieved party, including court costs, attorneys' fees, and other costs and expenses reasonably necessary in preparing the defense of, defending against, or seeking or obtaining an abatement of, or injunction against, such action or such proceeding, or enforcing this Agreement, or establishing and maintaining the applicability of, or the validity of this Agreement, or any provision thereof, and in prosecuting any counter -claim or cross -complaint based thereon. The Riverside Superior Court shall have jurisdiction for the enforcement of this Agreement pursuant to California Code of Civil Procedure sections 664.6 and 664.7. 11.0 Amendment This Agreement may not be modified, amended, or altered, except in a writing signed by each of the Parties. 12.0 Severance If any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, that provision shall be deemed to be severed and deleted; and neither that provision, nor its severance and deletion, shall affect the validity of the remaining provisions of this Agreement. -4� 13.0 Counterparts This Agreement may be executed in counterparts and, if so executed, all counterparts shall be deemed to form part of a single integrated document and shall be construed together for all purposes. 14.0 Electronic and Fax Signatures In order to expedite the settlement described and otherwise contemplated herein, faxed, emailed and PDF'd signatures may be used in place of original inked signatures on this Settlement Agreement. Other than those specific instances, the parties hereto agree and intend to be bound by their signatures transmitted or provided by fax, email or PDF; the parties hereto are aware that the other will rely on such signatures, and therefore, the parties hereto waive any defenses to the enforcement of the terms of this Settlement Agreement based on the manner in which signatures were transmitted or provided. 15.0 No Admission of Liability The settlement, releases, and other matters set forth herein are a compromise and settlement of disputed and contested claims between the Parties, and nothing contained herein shall be construed as an admission by any party of any breach of any obligation to any other party hereto and/or of any liability of any kind to any other party hereto. 16.0 Cooperation The Parties agree to execute any other documents, and perform other acts necessary to give effect to the intent and purposes of this Settlement Agreement. 17.0 No Intention to Benefit any Third -Parties The Parties to this Agreement agree that this Agreement and its terms and conditions are not intended to, and do not, give any right or rights to any third party whatsoever, nor do they create any duty by the Parties to this Agreement to third parties who are not a party to this Agreement. 18.0 Each of the Parties is Represented by Counsel Each of the Parties to this Agreement hereto are represented by counsel, and each represent that their respective counsel has read this Agreement, and that each party hereto has had the meaning and effect of this document explained fully by legal counsel, or has affirmatively waived any such counsel, that each party has read and understood the contents of this Agreement, and that each party executes this document voluntarily, knowingly and without duress or undue influence. -5- 19.0 Attorneys lees and Costs Each party hereto shall bear all of its attorneys' fees and costs arising from the actions of their respective counsel in connection with this Action, this Settlement Agreement and the matters and documents referred to herein. [Continued on Next Page] IM IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above. DATED: 10/09/19 LA QUINTA POLO ESTATES ASSOCIATION, INC. By: ZZ77 a41-qzl Axl) Name: De a T. DeAztlan Title: President, La Quinta Polo Estates CITY OF LA QUINTA, a California Municipal Corporation DATED: By: Name: Title: CITY OF INDIO, a California Municipal Corporation DATED: By: Name: Title: COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, a Joint Powers Authority DATED: By: Name: Title: -7- IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above. DATED: DATED: DATED: DATED: LA QUINTA POLO ESTATES ASSOCIATION, INC. Name: Title: CITY OF LA QUINTA, a California Municipal Corporation By: - I�UL 1AIV - Name: kada Camla0s-l10n7e1•0 Title: Acting City Manager CITY OF INDIO, a California Municipal Corporation Name: Title: COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, a Joint Powers Authority -7- Name: Title: IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above. LA QUINTA POLO ESTATES ASSOCIATION, INC. DATED: _— By: Name: Title: CITY OF LA QUINTA, a California Municipal Corporation DATED: By: Name: Title: CITY OF INDIO, a California Municipal Corporation DATED:_ `D —-/�_ By: `L Name: Mark Scott Title: City Manager COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, a Joint Powers Authority DATED: By Name: Title: -7- IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above. LA QUINTA POLO ESTATES ASSOCIATION, INC. DATED: By: Name: Title: CITY OF LA QUINTA, a California Municipal Corporation DATED: By: Name: Title: CITY OF INDIO, a California Municipal Corporation DATED: _ By: Name: Title: COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, a Joint Powers Authority DATED: I ®1 q By:— Nam,, T em Kirk Title: Executive Director -7- GRANITE CONSTRUCTION COMPANY, a California Corporation r' r� DATED: October 9, 2019 By: — Name: Kenneth Olson Title: Vice -President and Treasurer APPROVED AS TO FORM: GREEN BRYANT & FRENCH LLP DATED: ___ _ _ _ By: Colin Mani, Esq. Attorney for Plaintiff, LA QUINTA POLO ESTATES ASSOCIATION, INC. RICHARD, WATSON & GERSHON, LLP DATED: By:- Robert C. Ceccon, Esq. Attorney for Defendants, CITY OF INDIO and COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS -8- DATED: APPROVED AS TO FORM: DATED: G D— t(`2-0 t k DATED: 0 /d ` �C-) � 6 GRANITE CONSTRUCTION COMPANY, a Califomia Corporation 0 Name: Title: GREEN BRYANT & FRENCH LLP By: -� ~� Colin Mani, Esq. Attorney for Plaintiff, LA QUINTA POLO ESTATES ASSOCIATION, INC. RICHARD, WATSON & GERSHON, LLP By. —I//,/,// � &,,, Robert C. Ceccon, Esq. Attorney for Defendants, CITY OF INDIO and COACHELI.,A VALLEY ASSOCIATION OF' GOVERNMENTS DATED: October 10, 2019 DATED: RUTAN & TUCKER, LLP Robert Owen, Esq. Attorney for Defendant, CITY OF LA QUINTA FINCH, THORNTON & BAIRD, LLP Andrea L. Petray, Esq. Attorney for Defendant, GRANITE CONSTRUCTION COMPANY ME RUTAN & TUCICER, LLP DATED: By: Robert Owen, Esq, Attorney for Defendant, CITY OF LA QUINTA FINCH, THORNTON & BAIRD, LLP DATED: I V j q/lc By: Andrea L. Attorney f COMPANY -9-