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HomeMy WebLinkAboutWoodland Springs, Inc. APPROVED AS SETTLEMENT AGREEMENT AND R!~_~Fjy: ~ This Settlement Agreement and Release CAgreement") is entered into by and between the City of Cannel, Indiana, by and through its Board of Public Works and Safety CCity'), and Woodland Springs, Inc. ("Woodland"), RECITALS A. On or about 1996, the City engaged in the construction and/or repair of 116"1 Street in the City of Carrnd, Hamilton County, Indiana (the "Street"). B. During the construction/repair of the Street, agents of the City inadvertently removed and/or damaged certain Woodland Springs Subdivision entrance lights (the "Lights"). C. As a result of such actions, Woodland Springs, Inc. has been required to procure the services of a contractor to repair/replace the Lights removed and/or damaged during the construction of the Street. D. Woodland now requests reimbursement from the City for the expenses (the "Expenses") incurred as a result of such repairs/replacements. E. City has to date refused to pay certain of the Expenses incurred as a result of such repairs/replacements (the '~Claim"). F. In lieu of litigation and its inherent costs and uncertainties, the City and Woodland (jointly, the "Parties") each now desire to compromise and settle the Claim on the following terms and conditions. AGREEMENT NOW. THEREFORE, in consideration of the foregoing promises and the terms, covenants and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Non-Admission. The Parties each acknowledge that this Agreement does not constitute an admission by City that any action it took during the course of, or with respect to, the construction of the Street, or otherwise, was wrongful, unlawful or violative of any law, and that this Agreement is entered into solely for the purpose of compromise and in an effort to fully resolve all matters pertaining to the Claim. 2. No Lien/Lawsuit. The Parties each agree that, upon and in consideration for the execution of this Agreement by the other party hereto, they each covenant and agree to refrain from and shall not file or attach any lien or other encumbrance upon the other party hereto by virtue of or on account of the Claim, nor 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 other of the Parties for damages, costs, expenses, compensation, or otherwise, for or on account of any damage, loss and/or injury to person or property, whether known or unknown, patent or latent, in law or in equity, which such party has, claims to have, may have in the future or ever had that arises or arose out of or on account of the Claim. 3. Release by City. City shall and does hereby forever release, discharge and agree to hold harmless Woodland, as well as its directors, stockholders, officers, agents, employees, representatives, insurers, successors and assigns, from any and all claims, actions, causes of action, suits, debts, accounts and demands whatsoever and however arising, whether known or unknown, foreseen or unforeseen, patent or latent, which City may now have or may have after the signing of this Agreement against Woodland arising out of the Claim. 4. Release by Woodland. Woodland shall and does hereby forever release, discharge and agree to hold harmless City, as well as its directors, officers, officials, agents, employees, representatives, insurers, successors and assigns, from any and all claims, actions, causes of action, suits, debts, accounts, contracts and demands whatsoever and however arising, whether known or unknown, foreseen or unforeseen, patent or latent, which Woodland may now have or may have after the signing of this Agreement against City arising out of the Claim. 5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective past and present heirs, executors, administrators, beneficiaries, representatives, subsidiaries, divisions, officers, officials, directors, shareholders, agents, employees, alter egos, successors and assigns. 6. Agreement as Evidence. This Agreement may be used as evidence in any subsequent proceeding in which any of the Parties allege a breach of this Agreement. 7. Severabilitv. In the event any provision of this Agreement is deemed to be invalid or unenforceable by any court or administrative agency of competent jurisdiction, the Agreement shall be deemed to be excised, restricted or otherwise modified to the extent necessary to render the same valid and enforceable. 8. Payment. Upon agreement by Woodland to the terms and conditions set forth herein, and in consideration for Woodland's releases as are set forth herein, City shall, within thirty-five (35) days of its receipt of a properly detailed and authenticated invoice for such repairs/replacements to the Lights as are contemplated herein, pay to same the sum of not more than Ten Thousand Two Hundred Ninety Dollars ($10,290.00) (the "Payment"). The Payment shall be made in full and complete satisfaction of the Claim, including, but not limited to, all of Woodland's claims for costs and attorney fees related thereto. It is further understood and agreed that the Payment is made solely for the purpose of settling and compromising the Claim. In the event that any portion of the Payment is construed by the Intemal Revenue Service as taxable income, the recipient of same shall pay any and all taxes, interest and penalties with respect thereto. 9. Counsel. The Parties, and each of them, warrant that they have read this Agreement and understand it, have had an opportunity to obtain the advice and counsel of an attorney throughout the negotiation of this Agreement, have actual authority to enter into this Agreement on behalf of the party for whom they execute same, and enter into this Agreement freely and without any duress, undue influence or coercion. 10. Costs and Attoruev Fees. Each party shall pay its own costs and attorney fees. 11. Failure to Comply. Should any party breach or otherwise fail to comply with the terms and provisions of this Agreement, the prevailing party in any such dispute shall be entitled to recover, in addition to any other appropriate relief, all costs arising therefrom, including, but not limited to, attorney fees. 12. Construction. This Agreement shall be construed according to the laws of the State of Indiana, except for Indiana's laws regarding conflicts of law, and shall not be altered or otherwise amended except pursuant to an instrument in writing signed by all Parties hereto. 13. Entire Agreement. This Agreement constitutes and contains the entire agreement between the Parties concerning the transactions contemplated herein and supersedes all prior negotiations. proposed agreements and understandings, if any, between the Parties. 14. Section Headings. The section headings herein have been used as a convenience of reference only and shall in no way modify or restrict any of the terms or provisions hereof. 15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original. IN WITNESS WHEREOF, the Parties have signed this Agreement on the dates below their respective signatures or the signature of their representatives. The effective date of this Agreement shall be the date of the last signature affixed hereto. Resident of Johnson Coun~ My Cornre, Expires: Fe~ 1, WOODLAND SPRINGS, INC. ("Woodland") Printed Name ~d Title FID/SSN: 35-- 11 0 t 3 Date: U~,tc ~/2OO0 Approved and Adopted this 'fl/~/day of L//,'/Z ~'~. ,2000. CITY OF CARMEL, INDIANA ("City") By and through its Board of Public Works and Safety BY: James Brainard, Presiding Officer Date: ATTEST: