HomeMy WebLinkAbout240546 12/30/2014 (9, )
CITY OF CARMEL, INDIANA VENDOR: 355573
ONE CIVIC SQUARE CRIDER & CRIDER INC CHECK AMOUNT: $****75,000.00*
CARMEL, INDIANA 46032 1900 LIBERTY DRIVE CHECK NUMBER: 240546
BLOOMINGTON IN 47403 CHECK DATE: 12/30/14
DEPARTMENT ACCOUNT PO NUMBER INVOICE NUMBER AMOUNT DESCRIPTION
902 5023990 21914-3 75,000.00 OTHER EXPENSES
SETTLEMENT AGREEMENT AND RELEASE
oC
This Settlement Agreement and Release ("Agreement") is entered into by and be een
Crider & Crider, Inc., an Indiana for profit domestic corporation with offices located at 1900
Liberty Drive, Bloomington, Indiana 47403 ("Crider") 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"Palladium"); and
WHEREAS, on or about December 18, 2007, Crider submitted a bid to Hagerman
Construction Company ("Hagerman") to perform certain work related to the Palladium (the
"Project"), and Hagerman accepted Crider's bid; and
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 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(the "Crider Lawsuit"); and
WHEREAS, the Crider Lawsuit, entitled Crider & 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 was subsequently transferred to Hamilton
County Superior Court 3, Hamilton County, Indiana(Case No. 29D03-1310-PL-009362); and
WHEREAS, the parties hereto now wish to resolve all claims asserted by Crider in the
Crider Lawsuit, as well as all issues raised or capable of being raised by Crider therein (the
"Crider 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
Crider in the Crider Lawsuit, as well as the full and complete resolution of these and all other
Crider Claims, and of the releases contained herein, the CRC shall pay to Crider monies in the
following amounts and manner only:
1. Two Hundred Fifty Thousand Dollars($250,000.00)within 30 days from and after the
effective date of this Agreement.
2. Two Hundred Fifty Thousand Dollars ($250,000.00)on or before January 31,2015.
3. Seventy-Five Thousand Dollars($75,000.00)on or before December 31, 2015.
B. In exchange for the resolution of the Crider lawsuit and the agreement by the CRC to
pay to Crider the monies set forth above, Crider shall immediately dismiss all claims asserted by
Crider against the CRC and/or Hagerman in the Crider 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 and/or Hagerman that
Crider had, has, or may have in the future have that arises out of or on account of the Crider
Claims, and shall provide to the CRC such other consideration as is set forth in this Agreement.
3. Release. In exchange for the consideration set forth in Paragraph 1 above, and other
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Crider, 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 Crider ( individually and collectively, the
"Releasing Parties") release and forever discharge-the CRC and 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, officers, officials, and representatives of the CRC and Hagerman (individually and
collectively, the "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 Releasing Parties had, now have, or hereafter may'have, or
claim to have, against the 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 allegations made in the Crider Litigation and/or the Crider
Claims; provided, however, that the scope of this release shall not extend to the parties'
respective obligations under this Agreement.
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4. Unknown Damages/Claims. Crider fully understands that the 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. Crider acknowledges that the consideration
received under this Agreement is intended to and does release and discharge the Released Parties
from any claims or consequences arising directly or indirectly from such unknown damages or
claims and Crider hereby waives any rights to assert in the future any claims against the Released
Parties not now known or suspected to have arisen from the allegations made in the Crider
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.
5. 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.
6. Warranties and Representations. Crider 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 Crider warrant and represent that they have the
full right and power to execute this Agreement.
7. 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 Crider Lawsuit,
the Crider 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.
8. 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.
9. Dismissal of Crider Litigation. Upon the execution and delivery of this Agreement,
Crider shall immediately effect the dismissal of CRC and Hagerman from the Crider Lawsuit and
shall file with the court having jurisdiction over the same a joint stipulation or motion, if
necessary, dismissing the Crider Lawsuit with prejudice against the CRC and Hagerman, and
shall tender an appropriate order to such court in conjunction with the same.
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10. Indemnification. Crider, together with its successors and assigns, and to the fullest
extent permitted by law, hereby assumes sole responsibility for and hereby unconditionally and
irrevocably agrees to protect, defend, indemnify, and hold harmless the CRC, its heirs, officers,
officials, attorneys, agents, successors, and assigns 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 the Crider Lawsuit and Crider's work on the Project,
including, but not limited to, any claims, demands, orders, or causes of action which arise out of
this Agreement,provided that Crider's indemnification obligations shall not extend to pending
Project claims brought by Hagerman against the CRC.
11. Amendment; Waiver. This Agreement may-not be .amended, changed, waived,_
discharged, or terminated without the express written consent of both parties hereto.
12. 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.
13. Costs,Fees, and Taxes. Each party hereto shall pay its own costs, attorneys' fees and
taxes incurred in connection with the Crider Lawsuit 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.
14. 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.
15. 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 Crider Lawsuit shall
be litigated in a state court located in Hamilton County, Indiana, and they hereby waive their
rights to challenge such jurisdiction.
16. CRC/Governing Body Approval. Notwithstanding any other provision contained
in this Agreement, Crider 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.
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17. 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.
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: L 2 4 2- / L014 Crider&Crider, Inc.
Printed:
Its: (//G cd ��s iy d*iv!
Dated: _ 211q 2014 City of Carmel, Indiana, by and through its
Redevelopment Commission
By:
_ uj'� i
Printed: `
Its: C l�
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Prescribed by State Board of Accounts ACCOUNTS PAYABLE VOUCHER City Forrn No.201(Rev.1995)
CITY OF CARMEL
An invoice or bill to be properly itemized must show: kind of service, where performed, dates service rendered, by
whom, rates per day, number of hours, rate per hour, number of units, price per unit, etc.
1 Payee
C r A z r � `f aI'iy c r, In( Purchase Order No.
1166 L1 b Erb�� D r• Terms
I31n ivi ngton , I& 417 63
Date Due
Invoice Invoice Description Amount
Date Number (or note attached invoice(s) or bill(s))
_21 14 1�5 i n c o� 5 e me S OOU, ob
Total / 5- Q. 0,
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
20Clerk-Treasurer
VOUCHER NO. WARRANT NO.
_ ALLOWED 20
IN SUM OF $
jq00
Qloom,iwto , A/ 4-7g63
$ :75
ON ACCOUNT OF APPROPRIATION FOR
�OZGl9G-7
Board Members
PO#or
DEPT.# INVOICE NO. ACCT#/TITLE AMOUNT 'I hereby certify that the attached invoice(s),
Z °d or bill(s) is (are) true and correct and that
the materials or services itemized thereon
for which charge is made were ordered and
received except
S' at e
Cost distribution ledger classification if Tltle
claim paid motor vehicle highway fund