SETTLEMENT AND MUTUAL RELEASE AGREEMENT WITH TRES RIOS GOLF LLC.PDF
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Settlement and Mutual Release Agreement Page 1 I:\Agreements_Partners\Agreements\Tres Rios Golf Estrella\Agreement, Amendment, Assignments\Amendments\Settlement Agreement\Settlement and Mutual Release Agreement Final.doc SETTLEMENT AND MUTUAL RELEASE AGREEMENT This SETTLEMENT AND MUTUAL RELEASE AGREEMENT (this “Settlement Agreement”), dated this _____ day of September, 2020 (the “Effective Date”), is entered into by and between Maricopa County, a political subdivision of the State of Arizona (“County”) and Tres Rios Golf, LLC, an Arizona limited liability company (“Concessionaire”). County and Concessionaire are collectively referred to hereinafter as the “Parties.” RECITALS WHEREAS, County entered into Amendment Three to Estrella Mountain Park Golf Course Use and Management Agreement (“Agreement”) for the Management, Operation, Maintenance and Improvement of the Golf Course Concession – Tres Rios Golf Course at Estrella Mountain Park Formerly Known as Estrella Mountain Park Golf Course dated March 16, 2011 (C-30-04-027-1-01), which amended and restated the Use Management Agreement dated March 12, 1997, Amendment One dated January 6, 1999 and Amendment Two dated June 16, 2004; and WHEREAS, on April 25, 2012, County approved the assignment of the Agreement to Concessionaire and on August 17, 2016, County and Concessionaire entered into Amendment Four to the Use Management Agreement (Amendment Four and the Agreement collectively referred to as the “Agreement”); and WHEREAS, County and Concessionaire have determined that it is in the best interest of the parties to allow Concessionaire to be released from its obligations pursuant to the Agreement; and WHEREAS, County and Concessionaire have reached an agreement on the final amounts due pursuant to Agreement, and now wish to document that agreement with this Settlement Agreement and to release any and all claims against each other and resolve any and all obligations to each other regarding the matters addressed herein; NOW THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows. TERMS 1. Final Settlement of Amounts Due Pursuant to the Agreement. The Parties hereby agree, to fully and finally resolve any and all amounts that are or may be due under the Agreement and to fully and finally resolve any and all claims between the Parties regarding the amounts that are or may be due under the Agreement, Concessionaire shall pay to County the sum of Thirty-Three Thousand, Eight Hundred Seventy Dollars and 99/100 ($33,870.99) (the “Settlement Sum”). The Settlement Sum shall be paid in lawful money of the United States to County by a check made payable to County and remitted to the following address: Settlement and Mutual Release Agreement Page 2 I:\Agreements_Partners\Agreements\Tres Rios Golf Estrella\Agreement, Amendment, Assignments\Amendments\Settlement Agreement\Settlement and Mutual Release Agreement Final.doc Maricopa County 41835 N. Castle Hot Springs Road Morristown, Arizona 85342 Attn: Emily Miller 2. Mutual Release. Except as otherwise provided in this Settlement Agreement, in consideration for (i) the Parties fully and finally resolving any and all amounts that are or may be due under the Agreement and fully and finally resolving any and all claims between the Parties regarding the Agreement, (ii) the payment of the Settlement Sum, and (iii) the other promises, covenants and agreements contained in this Settlement Agreement, each of the Parties, for themselves, and on behalf of their respective current and former officers, directors, members, members of members, shareholders, partners, affiliates, subsidiaries, parent companies, agents, attorneys, representatives, predecessors, successors and assigns (each, a “Releasing Party” and collectively, the “Releasing Parties”), absolutely and unconditionally waive, release and forever discharge each of the Parties and their respective current and former officers, directors, members, members of members, shareholders, partners, affiliates, subsidiaries, parent companies, agents, attorneys, representatives, predecessors, successors and assigns (each, a “Released Party” and collectively, the “Released Parties”), from all claims, demands, obligations, liabilities, actions, and causes of actions whatsoever, in law or equity, that any Releasing Party has, ever had, or may in the future have against any of the Released Parties, arising from or in any way relating to (i) the Agreement, and (ii) any and all disputes between the Parties as of the Effective Date of this Settlement Agreement regarding, or in any way relating to the Agreement. Each of the Releasing Parties acknowledge and agree that this is a general release that expressly covers unknown as well as known claims regarding, in any way, amounts due under the Agreement, and each of the Releasing Parties voluntarily waive, release and assume the risk of all claims that exist as of the Effective Date, whether known or unknown to them regarding, in any way, the Agreement. 3. Non-Disparagement. As of the Effective Date of this Settlement Agreement, the Parties respectively agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the reputation, practices or conduct of any Party to this Settlement Agreement, including any Party’s current and former officers, directors, shareholders, partners, affiliates, agents, attorneys, representatives, predecessors, successors and assigns. The Parties acknowledge and agree that this prohibition continues in perpetuity and extends to statements, written or verbal, made to anyone, including but not limited to, the news media. 4. No Admission of Liability. The Parties acknowledge that they are entering into this Settlement Agreement to fully and finally resolve any and all matters under the Agreement, and that nothing contained herein shall be construed to be an admission of liability. Each Party expressly denies any liability to the other Parties. 5. No Reliance; Negotiations and Drafting. This Settlement Agreement is entered into with full awareness and consideration of any and all rights the Parties currently have or may have. Each of the Parties has read this Settlement Agreement and has relied upon their own respective knowledge and independent judgment in executing this Settlement Agreement. None of the Parties are relying upon any representations, promises or statements made by any of the Settlement and Mutual Release Agreement Page 3 I:\Agreements_Partners\Agreements\Tres Rios Golf Estrella\Agreement, Amendment, Assignments\Amendments\Settlement Agreement\Settlement and Mutual Release Agreement Final.doc other Parties or their respective agents, representatives, servants, or employees as having induced it with regard to the subject matter hereof to sign this Settlement Agreement. Each of the Parties has participated in the negotiations and drafting of this Settlement Agreement. None of the Parties shall be deemed the “author” for the purposes of the construction of this Settlement Agreement or any part thereof. 6. Authority. Each signatory to this Settlement Agreement has read and fully understands this Settlement Agreement, is fully authorized and empowered to enter into this Settlement Agreement, is duly authorized to execute this Settlement Agreement and to bind each of the Parties to the terms and conditions herein, and all approvals necessary to enter into this Settlement Agreement have been obtained. 7. No Third Party Consent. Each of the Parties represents and warrants to the other Party that the execution, delivery and performance by the Parties of this Settlement Agreement does not require the consent of any third party. 8. Severability. In the event that any material provision of this Settlement Agreement is held invalid, the remainder of this Settlement Agreement shall remain fully enforceable. Any term or provision of this Settlement Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms and provisions hereto or the validity or enforceability of the offending term or provision in any other jurisdiction. 9. Integration. This Settlement Agreement constitutes the complete and final agreement between the Parties with regard to the subject matter hereof and supersedes and cancels all prior or contemporaneous agreements, understandings, discussions, or representations regarding the subject matter of this Settlement Agreement. 10. Modification. This Settlement Agreement may not be modified or amended, nor any of its terms waived, except by written instrument signed by each of the Parties hereto. 11. Choice of Law; Attorneys’ Fees; Venue. The interpretation and construction of this Settlement Agreement shall be governed by and construed in accordance with the substantive law of the State of Arizona, to the extent the particular subject matter is controlled by state law, and without regard to conflicts of law particular to the subject matter. The prevailing party in any dispute resulting from the interpretation of this Settlement Agreement or breach thereof shall be entitled to be reimbursed from the non-prevailing party for its attorneys’ fees and expenses. Exclusive venue, if a dispute arises out of this Settlement Agreement, shall be in Maricopa County, Arizona. 12. Legal Fees. Each Party agrees to be solely responsible for its legal fees incurred in connection with the negotiation, preparation, review and execution of this Settlement Agreement. In the event that any Party is required to seek judicial intervention in order to enforce this Settlement Agreement, the prevailing Party in such an enforcement action shall be entitled to recover its reasonable attorneys’ fees and costs. 13. Notices. All communications, notices and consents provided for herein (a “Notice”) shall be in writing and be given in person or by means of telex, telecopy, or other wire transmission (with request for assurance of receipt in a manner typical with respect to Settlement and Mutual Release Agreement Page 4 I:\Agreements_Partners\Agreements\Tres Rios Golf Estrella\Agreement, Amendment, Assignments\Amendments\Settlement Agreement\Settlement and Mutual Release Agreement Final.doc communications of that type) or by nationally recognized overnight courier (the “Courier”) for next business day delivery, and shall become effective (i) on delivery if given in person, (ii) on the date of transmission if sent by telex, telecopy, or other wire transmission, or (iii) the business day following delivery of the Notice to the Courier, with proper postage prepaid. Notices shall be addressed as follows: If to County: Maricopa County 41835 N. Castle Hot Springs Road Morristown, Arizona 85342 Attn: Emily Miller If to Concessionaire: Tres Rios Golf, LLC 1245 E. Warner Road, Suite 202 Gilbert, Arizona 85296 With a copy to: Addison Law Firm 5400 LBJ Freeway, Suite 1325 Dallas, Texas 75240 Attn: Timothy J. Clow 14. Counterparts. This Settlement Agreement may be executed in one or more counterparts, each of which, when so executed, shall be deemed to be an original; such counterparts, when so executed together, shall constitute one and the same Settlement Agreement and shall be deemed to be an original. Photographic, faxed or electronic copies of such signed counterparts shall constitute originals for the purpose of this Settlement Agreement and may be used in lieu of the originals for any purpose. 15. Cooperation. The Parties shall each deliver or cause to be delivered to the other on the Effective Date, and at such other times and places as shall be reasonably agreed to, such additional instruments as the other may reasonably request for the purpose of carrying out this Settlement Agreement. The provisions of this Section 16 shall survive the Effective Date. [Signatures on Following Page] Settlement and Mutual Release Agreement Page 5 I:\Agreements_Partners\Agreements\Tres Rios Golf Estrella\Agreement, Amendment, Assignments\Amendments\Settlement Agreement\Settlement and Mutual Release Agreement Final.doc IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be EXECUTED by their duly authorized representatives and to be effective as of the Effective Date of this Settlement Agreement. COUNTY: CONCESSIONAIRE: MARICOPA COUNTY, TRES RIOS GOLF, LLC, a political subdivision of the State of Arizona an Arizona limited liability company By:_______________________________ By:_______________________________ Name:_____________________________ Name:_____________________________ Title:______________________________ Title:______________________________