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Date:05/12/2014 Period: 5/14
1 Journal Entry Information......_._------.._......._...........
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Control Number:'1902
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Tarn]E Number: 8067
` ( p ate i
L. ........
i Description WIRE TO HAGERMAN SETTLEME
... r%. Continuous
......................_....__.._._._.....__......................................._..._.........._................... ,
........_............................. . ......... .......... ......_
r.. .. ....._ _....... ... .......
SUS-DEPARTMENT :Account TASK ;Account Debit Amount Credit Amount Description
902 ;4460807 730,000.002 0.00 WIRE TO HAGERMAN
i . .. ._.. - .. __ .._._ .... ....._. ....... _. ..
':902 1101 0.00 30,000.00 WIRE TO HAGERMAN
902 11 F0
0.00 700,000.00 WIRE TO HAGERMAN
�_.... ._ .. ...._._.... _.,... .._...._ ...._,., _... _ ....
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Tota4'Debits 730 000.00 ;
Total.Credits 730,00b.o0
.Difference' 0.00.
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into by and between
Hagerman Construction Corporation, an Indiana for profit domestic corporation with offices
located at 10315 Allisonville Road, Fishers, IN 46038 ("Hagerman") and the City of Carmel,
Indiana, by and through its Redevelopment Commission("CRC"), and shall be effective on and
after the date on which it is last executed by a party hereto.
WITNESSETH:
WHEREAS, CRC is the owner of the Carmel Performing Arts Center(previously known
as the "Regional Performing Arts Center"), the same being located in Carmel, Indiana (the
"Center");and
WHEREAS, the Center consists of three main performance venues: the "Tarkington
Theater", the "Studio Theater", and the "Palladium", the latter structure being a magnificent
concert hall architecturally highlighted by a classical Palladio dome)(the"Project");and
WHEREAS, on or about December 18, 2007, Crider and Crider, Inc. ("Crider")
submitted a bid to Hagerman to perform certain work related to the Project. Hagerman accepted
Crider's bid.
WHEREAS, on or about January 22, 2008, Hagerman and the CRC entered into an
agreement titled: "Bid Package #3000 — Concrete Agreement #2695-3000" (the "Concrete
Agreement"),whereby Hagerman agreed to perform certain concrete work on the Project;and
WHEREAS, on or about January 30, 2008, Hagerman and the CRC entered into an
agreement titled: "Bid Package #3110 — Limestone Cladding Agreement #2695-3110 (the
"Masonry Agreement") (the Concrete Agreement and the Masonry Agreement collectively are,
the "Hagerman Agreements"), whereby Hagerman agreed to perform certain masonry work on
the Project;and
WHEREAS, on or about October 17, 2011, Crider filed a lawsuit against Hagerman
and the CRC to recover damages Crider alleged it was due from Hagerman and the CRC for
certain work performed on the Project entitled Crider and Crider, Inc. v. Hagerman
Construction Corporation, City of Carmel, through its Redevelopment Commission, and Safeco
Insurance Company of America, was originally filed in Allen County Superior Court, Allen
County, Indiana (Case No. 02C01-1110-PL-55) and subsequently transferred to the Hamilton
County Superior Court, Hamilton County, Indiana (Case No. 29D03-1310-PL-009362) (the
"Litigation"); and
WHEREAS, in the Litigation, Hagerman filed a Cross-Claim and amended Cross-Claim
against the CRC alleging claims for monies allegedly due it under the Hagerman Agreements,
including but not limited to, retainage claims, loss of productivity claims, relief angle claims and
the Crider claims alleged in the Litigation; and the CRC filed a Cross-Claim (denominated
Counterclaim)against Hagerman; and
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WHEREAS, the parties have resolved Crider's claims in the Litigation and have entered
or will enter into Settlement Agreements addressing those claims;and
WHEREAS, the parties hereto now wish to resolve all claims asserted by Hagerman in
the Litigation, as well as all issues raised or capable of being raised by Hagerman therein, claims
for monies due it and related to the Hagerman Agreements(the"Hagerman Claims'),and resolve
all claims asserted by the CRC in the Litigation, as well as all issues raised or capable of being
raised by the CRC therein, claims for money due it and related to the Hagerman Agreements(the
"CRC Claims") and to provide certain releases regarding the same, by and pursuant to the terms
and conditions set forth in this Agreement.
NOW,THEREFORE,it is hereby agreed by the parties hereto as follows:
1. Recitals.The foregoing recitals are incorporated herein by this reference.
2. Consideration.
A. In exchange for the resolution and dismissal,with prejudice, of all claims asserted
by Hagerman and the CRC in the Litigation, as well as the full and complete resolution of these
and all other Hagerman Claims and the CRC Claims, and of the releases contained herein, the
CRC shall pay to Hagerman Seven Hundred Thirty Thousand Dollars($730,000.00)within seven
(7) days or such time as the Clerk-Treasurer may issue the check, from and after the effective
date of this Agreement. The CRC will use its best efforts to have the Clerk-Treasure issue the
check within as soon as possible and within the seven (7) days from the effective date of this
Agreement.
B. In exchange for the resolution of the Litigation and the agreement by the CRC to
pay to Hagerman the monies set forth above, Hagerman and its surety, Safeco Insurance
Company of America("Safeco")shall immediately dismiss all claims asserted by Hagerman and
Safeco against the CRC in the Litigation, with prejudice, and shall not thereafter institute,
prosecute, or in any way encourage or aid in the institution or prosecution of any claim, demand,
lawsuit, action or cause of action against the CRC that Hagerman had, has, or may have in the
future that arises out of or on account of the Hagerman Claims, and shall provide to the CRC
such other consideration as is set forth in this Agreement.
C. - In exchange for the resolution of the Litigation agreement and other consideration
acknowledged by the CRC, the CRC shall immediately dismiss all claims asserted by the CRC
against Hagerman and Safeco in the Litigation,with prejudice,and shall not thereafter institute,
prosecute, or any way encourage or aid in the institutiongpr prosecution of any claim, demand,
lawsuit, action or cause of action against Hagerman that the CRC had, has, or may have in the
future that arises out of or on account of the CRC Claims, and shall provide to Hagerman such
other consideration as set forth in this Agreement.
D. The CRC, Hagerman and Safeco agree to dismiss all its claims asserted in the
Litigation with prejudice.
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3. Hagerman Release. In exchange for the consideration set forth in Paragraph 2
above, and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged,Hagerman, and each and all predecessors, successors, assigns,subsidiaries,parent
corporations, partners, and affiliates, and each and all of the officers, directors, members,
shareholders, employees, attorneys, agents, partners, and representatives of Hagerman
(individually and collectively, the "Hagerman Releasing Parties") release and forever discharge
the CRC and each and all predecessors, successors, assigns, subsidiaries, parent corporations,
partners, and affiliates, and each and all of the officers, directors, members, shareholders,
employees, attorneys, agents, partners, officers, officials, and representatives of the CRC
(individually and collectively, the "CRC Released Parties") from any and all past, present or
future claims, causes of action, suits, debts, accounts, contracts, demands, agreements,
controversies,judgments, obligations, damages and liabilities of any nature whatsoever, whether
or not now known, suspected, or claimed, which the Hagerman Releasing Parties had, now have,
or hereafter may have, or claim to have, against the CRC Released Parties by reason of any act,
transaction, practice, conduct, or omission of any matter, cause, effect, or thing of any kind
whatsoever arising out of,relating to,or based upon,in whole or in part,the matters alleged in the .
Litigation and the Hagerman Claims; provided, however, that the scope of this release shall not
extend to the parties' respective obligations under this Agreement. Hagerman further agrees that
any remaining obligations for warranty and other contractual obligations under the Hagerman
Agreements continue subject to and only to the extent set forth in the Hagerman Agreements.
4. CRC Release. In exchange for the consideration set forth in paragraph 2 above,
and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the CRC, and each and all predecessors, successors, assigns, subsidiaries, parent corporations,
partners,,and affiliates, and each and all of the officers, directors, members, shareholders,
employees, attorneys, agents, partners and representatives of the CRC (individually and
collectively, the "CRC Releasing Parties") release and forever discharge Hagerman, its surety.,
Safeco Insurance Company of America,its subcontractors,suppliers, employees,agents,personal
representatives, predecessors, successors, assigns, subsidiaries, parent corporations,partners, and
affiliates and each and all of the officers, directors,members,shareholders,employees, attorneys,
agents, partners, officers, officials and representatives of Hagerman (individually and
collectively, the "Hagerman Released Parties") from any and all past, present or future claims,
causes of action, suits, debts, accounts, contracts, demands, agreements, controversies,
judgments, obligations, damages and liabilities of any nature whatsoever, whether or not now
known, suspected or claimed which the CRC Releasing Parties had, now have, or hereafter may
have, or claim to have, against the Hagerman Released Parties by reason of any act, transaction,
practice, conduct, or admission of any matter, cause, effect, or thing of any kind whatsoever
arising out of,relating to, or based upon, in whole or in part, the matters alleged in the Litigation
(including the CRC Cross-Claim(denominated as Counterclaim), and the CRC Claims;provided,
however, that the scope of this Release shall not extend to the parties' respective obligations
under this Agreement. Provided further, nothing herein releases any remaining Hagerman
obligations for warranty or other contractual obligations under the Hagerman Agreements which
are subject to the terms, conditions and limitations of the Hagerman Agreements.
5. Unknown Damages/Claims. Hagerman fully understands that the Hagerman
Releasing Parties may have damages or claims that are unknown to them at present and that these
damages or claims may arise, develop, or be discovered in the future. Hagerman acknowledges
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that the consideration received under this Agreement is intended to and does release and
discharge the CRC Released Parties from any claims or consequences arising directly or
indirectly from such unknown damages or claims and Hagerman hereby waives any rights to
assert in the future any claims against the CRC Released Parties not now known or suspected to
have arisen from the allegations made in the Litigation, even though,if such claims were known,
such knowledge would materially affect the terms of this Agreement; provided, however, the
scope of this release shall not extend to the parties' respective obligations under this Agreement.
6. Denial of Fault/Liability. The parties hereto agree and acknowledge that the
execution of this Agreement effects the settlement of contested disputes and differences between
the parties. The execution of this Agreement is not, and shall not be construed as, an admission
of any kind or an implication of any past or present fault or wrongdoing on the part of either
party hereto,which fault or liability is hereby expressly denied.
7. Warranties and Representations. Hagerman warrants and represents that it is
the sole and absolute legal and equitable owner of all claims covered by this Agreement and it
has not assigned,pledged,or otherwise in any manner, sold or transferred,either by instrument in
writing or otherwise, any existing or potential right, title, interest, claim, injuries or damages
regarding or related thereto. Both the CRC and Hagerman warrant and represent that they have
the full right and power to execute this Agreement.
8. Entire Agreement; Advice of Counsel. This Agreement contains the entire
agreement with regard to the matters set forth herein. There are no understandings or
agreements,verbal or otherwise,in relation thereto,except as herein expressly set forth. All prior
negotiations, representations and promises regarding the settlement of the Litigation, the
Hagerman Claims, the CRC Claims and this Agreement are merged into and expressed by this
Agreement. By entering into this Agreement the parties each represent that they have completely
read all the provisions hereof and that such provisions are fully understood and voluntarily
accepted by them,and that they have been adequately represented by legal counsel of their choice
throughout the negotiation and execution of the same.
9. Joint Preparation of Agreement. This Agreement has been negotiated by the
parties through their respective counsel. The parties agree that the normal rule of construction to
the effect that any-ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments hereto.
10. Dismissal of Litigation. Upon the execution and delivery of this Agreement,
Hagerman and the CRC shall immediately effect the dismissal of the Litigation and shall file with
the court having jurisdiction over the same a joint stipulation or motion, if necessary, dismissing
the Litigation with prejudice, and shall tender an appropriate order to such court in conjunction
with the same.
11. The parties herein agree to prepare and release a joint statement and press
release (Exhibit "A") mutually acceptable to the parties, which provides information
concerning the settlement of the Litigation and resolution of matters set forth herein.
12. Indemnification. Hagerman, to the fullest extent permitted by law, hereby
assumes sole responsibility for and hereby unconditionally and irrevocably agrees to protect,
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defend, indemnify, and hold harmless the CRC, from, against, and with respect to any and all
claims, demands,judgments, damages, actions, causes of action, injuries, administrative orders,
consent agreements,liabilities, penalties,costs, and expenses of any kind whatsoever(including,
without limitation, costs of defense, settlement, remediation, and attorneys' fees and expenses),
arising out of or connected in any way with any claims asserted by Purdy Masonry,Inc.,related
to Project back charges for extra work allegedly caused by Hagerman in the amount of
$44,142.32, or claims of any remaining unpaid Hagerman Project subcontractors or suppliers.
Hagerman will provide any lien waivers required by the Hagerman Agreements.
13. Amendment; Waiver. This Agreement may not be amended, changed, waived,
discharged,or terminated without the express written consent of both parties hereto.
14. Severability. If one or more of the provisions of this Agreement shall be
determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions contained therein shall
not in any way be affected or impaired thereby.
15. Costs,Fees, and Taxes. Each party hereto shall pay its own costs,attorneys' fees
and taxes incurred in connection with the Litigation and the completion of any transactions
contemplated by this Agreement. However, in the event litigation is needed to enforce this
Agreement, the prevailing party thereto shall be entitled to recover its costs, expenses, and
reasonable attorneys' fees incurred in such enforcement,including enforcement as a defense.
16. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute one and the
same instrument. The parties hereto agree that this Agreement,and any amendments hereto,may
be transmitted by facsimile or email, and that faxed or emailed signatures constitute original and
binding signatures.
17. Controlling Law; Venue. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Indiana,without reference to its choice of law rules. The
parties acknowledge that all actions or proceedings initiated by the parties and arising directly or
indirectly out of or in any way relating to this Agreement or the Litigation shall be litigated in a
state court located in Hamilton County, Indiana, and they hereby waive their rights to challenge
such jurisdiction.
18. CRC/Governing Body Approval. Notwithstanding any other provision
contained in this Agreement, Hagerman hereby expressly acknowledges and agrees that
this Agreement is subject to the approval of the CRC and of any additional governing body
required or requested by the CRC to effectuate the same, and shall not become effective
unless and until all such approvals are obtained.
19. Signatures. The undersigned individuals have executed this Agreement and by
doing so represent that they are specifically authorized to do so on behalf of the entity they
represent.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each of the
parties,.through their authorized agent,has set their hand and seal to this Agreement as follows:
Dated: A _ ,20.14 Hagerman Construction Corporation
By.
Printed:
Its:
Dated: 2014 City of Carmel,Indiana,by and through its
Redevelopment Commission
By:
Printed:
Its:
INDLibrary2 LR02592.0935950 1298889v2
6
IN WITNESS WHEREOF, and intending to be legally bound hereby, each of the
parties,through their authorized agent,has set their hand and seal to this Agreement as follows:
Dated: ,2014 Hagerman Construction Corporation
By:
Printed:
Its:
Dated: ,2014 City of Carmel,Indiana,by and through its
Redevelopment Commissio
- By: � 1
Printed: YV l 1�-�A M �fz
Its: E2F---�5 `
1NDLibrary2 LR02582.0935950 1298889v2
6
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Dated: c 32014 City of Cannel, Indiana, by and through its
Redevelopment Commission
By: --- --
Printed: Co AA �
Its: Executive Director
7
Joint Press Release
Additional facts/Corrections About Palladium Settlement
May 9,2014(Carmel, Indiana)
Carmel Mayor Jim Brainard and Jeff Hagerman,Chairman of Hagerman Construction
Corporation,provided additional information concerning the resolution of pending litigation
involving the construction of the Palladium Concert Hall which opened in November, 2010.
Both Hagerman and Brainard stressed that the lawsuit was a result of a business disagreement
over what was owed to Hagerman as a result of a large,complicated and complex construction
project. Brainard added that the quality of the work was not at issue but rather the lawsuit was
a business disagreement over contract terms.
Both Mayor Brainard and Jeff Hagerman were actively involved during recent settlement
negotiations and,through their mutual cooperation, resolved the pending disputed issues in a
manner satisfactory to all parties.
EXHIBIT"A"
Prescribed by State Board of Accounts ACCOUNTS PAYABLE VOUCHER
City Forrn No.201(Rev.1999
CITY OF CARMEL
An invoice or bill to-be proper) itemized must show: kind of service, where performed, dates service rendered b
Y p � � Y
whom,'-rates per day, number of hours, rate per,hour, number of units, price per unit, etc.
Payee
Ngerm. n 10'o4me4im Purchase Order No.
jd 31 S All i,S_ 0/)YI��E l tl• Terms
FA TAI 4603S Date Due
Invoice Invoice Description Amount
Date Number (or note attached invoice(s) or bill(s))
- - 1 12 l 56 e rw e 70 0 .0°
Total 730 00A°Q
I hereby certify that the attached invoice(s), or bill(s), is (are)true and correct and I have audited same in accor-
dance with IC 5-11-10-1.6.
, 20
Clerk-Treasurer
VOUCHER NO. WARRANT NO.
ALLOWED 20
l0� P
�fA ern, sf u�¢ oh
'� Ah IN SUM OF
10315 AI(;soAlydle 9J.
FsAers Z Al/ q 6039
$ 75 a4 0.00
ON ACCOUNT OF APPROPRIATION FOR
Tt r dn4 (634
'702oz 1060107
Board Members
PO#or INVOICE NO. ACCT#!TITLE AMOUNT
DEPT.# I hereby certify that the attached invoice(s),
jIF90 JC f 2 j�' l I On 70(100 or bill(s) is (are) true and correct and that
663 *60907 X fl00 the materials or services itemized thereon
for which charge is made were ordered and
received except
5� 20/�
. r
Sig
nat
Cost distribution ledger classification if itle
claim paid motor vehicle highway fund