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HomeMy WebLinkAboutAvian Glen Subdivision Settlmnt 03 O/, 0 O r SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is entered into by and between the City of Carmel, Indiana, by and through its Board of Public Works and Safety ("City"), Frye Electric, Inc. ("Vendor F"), Growing Image, Inc. ("Vendor G") and Revel & Underwood, P.C. ("Contractor"), RECITALS A. In 1999, the City completed construction of a parkway running primarily north and south in Hamilton County, Indiana and named Hazel Dell Parkway(the "Parkway"). B. During the construction of the Parkway, agents of the City inadvertently removed and/or damaged certain landscaping, irrigation and electrical lines serving Avian Glen Subdivision and located in the existing public right-of-way. C. As a result of such actions, the Avian Glen Homeowners' Association requested Contractor to procure the services of Vendor F and Vendor G to repair the irrigation, electrical lines and landscaping removed and/or damaged during the construction of the Parkway. D. Contractor, Vendor F and Vendor G now request reimbursement from the City for the expenses incurred as a result of such repairs and replacements. E. City has refused to pay certain of these expenses incurred by Contractor, Vendor F and Vendor G as a result of such repairs and replacement (the "Claim"). F. In lieu of litigation and its inherent costs and uncertainties, City, Contractor, Vendor F and Vendor G (collectively, 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 Parkway, 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. [eb:msword.i.'I4w c bass\my documents`settlententreleasc\growingintage.doc:3/1/00] 1 2. No Lien/Lawsuit. The Parties each agree that, upon and in consideration for the execution of this Agreement by the other parties hereto, they each covenant and agree to refrain from and shall not file or attach any lien or other encumbrance upon any 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 any other of the Parties and/or any releasees identified or referenced herein, 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 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 Contractor, Vendor F and Vendor G, as well as their respective 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 Contractor, Vendor F and/or Vendor G arising out of the Claim. 4. Release by Contractor and Vendor. Contractor, Vendor F and Vendor G shall and hereby do each 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 Contractor, Vendor F and/or Vendor G 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. Severability. 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. [eb:nisword:i:`,law`e bass\my documents`settlemcntrelease\growingimage.doc:3/1/00] 2 8. Payment. Upon agreement by Contractor, Vendor F and Vendor G to the terms and conditions set forth herein, and in consideration for such parties' releases as set forth herein, City shall pay to same as follows: Contractor $ 697.87 Vendor F $9,533.00 Vendor G $5,695.00 the receipt and sufficiency of which applicable sum is hereby acknowledged by Contractor, Vendor F and Vendor G, respectively. These payments are made in full and complete satisfaction of the Claim, including, but not limited to, all of Contractor's, Vendor F's and/or Vendor G's claims for costs and attorney fees related thereto. It is further understood and agreed that the payments made pursuant hereto are solely for the purpose of settling and compromising the Claim. In the event that any portion of the above payments is construed by the Internal 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 Attorney 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. [cb i.',law\e bass\my documents\settlementrclease\growingimage.doc:3i 1/001 3 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. REVEL & UNDERWOOD ("Contractor") BY: gh•ri :• Sig atu Printed Name and Title FID/SSN: 3(P 6.171 A Date: 3 o2�Qlf � GROWING IMAGE, INC. ("Vendor F") BY: Authoriz d Sign ure dEN1Y 1b E(T1)rkw\ )RP-k6-( wo ()If Printed Name and Title FIDE " 35 - i715o 1 Date: 3 ( �U FRYE ELECTRIC, INC. ("Vendor G") BY: Authorized Signature Printed Name and Title FID/SSN: Date: [eb.msword i..ldw,c bassmy documcnts\scttlementrcicasc\growiugimage.doc:3/1/00] 4 MAR-02-2000 THU 02:00 FM FAX NO, P. 05 '15. Colverparts. This Agreement may be executed in one or more counterparts, each or which :;hall 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. REVEL& UNDERWOOD ("Contractor") BY; Authorized Signature Printed Name and Title FID/SSN: Date: GROWING IMAGE, INC. ("Vendor F") BY: Authorized Signature Printed Name and Title FIDISSN: Date: FRYE ELECTRIC:',INC. ("Vendor G") Au ' ' ized S' p atur it b/ rrve — Printed Name and Title FID/SSN: .'{ :! 1 O Date: / 42:2___h uy,ii I i tlWj 4 Approved and Adopted this day of , 2000. CITY OF CARMEL, INDIANA ("City") By and through its Board of Public Works and Safety BY: 0,4- (2,..>...,....._z___„: 7 a s Brainard, Presiding Officer te: 5_ , ©c, dv,„, ,s,,,,,,,i, . Ma Ann i r re, Member Date: -3 ,j'00 \g/ *i„) Billy i lker, Member Date: 034/'2000 ATTEST: Diana Cordray, IMCA, Clerk-Treasurer Date: [cb:III,ord./ lawn bass,my documcnts setticweutrcicasc',growingimagc.doc:3/I/00] 5