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HomeMy WebLinkAboutTrotter Construction Co.SETTLEMENT~ RELEASE AND INDEMNITY AGREEMENT THIS SETTLEMENT, RELEASE AND INDEMNITY AGREEMENT (the "Agreement") is made and entered into this 1st day of September, 2004, by and between Trotter Construction Company, Inc. and Grady Brothers, Inc., individually and jointly as the Joint Venture (the "Joint Venture"), and the City of CarmeI, Indiana ("Carmel"). SECTION 1 - RECITALS 1. Carmel is the owner of a construction project located therein and identified as the Pennsylvania Street Improvements, Project #97-04 (the "Project"). 2. The Joint Venture is made up of two corporations duly organized and existing under the laws of the State of Indiana with its principal place of business located in Indianapolis, Marion County, Indiana. The Joint Venture is engaged in the construction business as a general contractor and was the general contractor for the Project. 3. On August 5, 1998, the Joint Venture and Carmel entered into a contract (the "Contract") for construction of the Project. 4. During the course of the work on the Project issues and disputes arose including but not limited to non-compliant asphalt, liquidated damages and litigation initiated by a subcontractor to the Joint Venture, Construction Materials/Coordinators ("CMC" and the "CMC Litigation"). As a result of these issues and disputes, Carmel has not released funds claimed by the Joint Venture to be retainage owed to it. 5. Carmel and the Joint Venture have agreed to settle the claims and disputes by and between them regarding the retainage and the Project in order to buy their peace and to avoid the uncertainties and expenses of litigation, and further desire to compromise and settle such claims, disputes and controversies by and between them, upon the terms and in the manner herein provided. SECTION I1 - TERMS AND PROVISIONS NOW THEREFORE, in consideration of the mutual terms, covenants and conditions set forth and contained herein, it is agreed by and between the Joint Venture and the City of Carmel, as follows: 1. Carmel agrees to pay to the Joint Venture the amount of $100,000 as claimed retainage minus $7,500 of CMC Litigation expenses incurred by Carmel, for a net amount of $92,500 to be paid to the Joint Venture on or before September 15, 2004. 2. The Joint Venture agrees to, and in fact will, defend, indemnify and satisfy any judgment entered against the Carmel in the CMC Litigation, and any other claims or lawsuits relating to the Project, from and against all claims asserted or which may be asserted through trial and all appeals, including but not limited to claims of sole negligence, fraud, and other intentional torts. 3. Upon completion of each of the actions required by this Agreement, the Joint Venture and Carmel shall, in full accord and satisfaction of their claims, disputes and controversies by and between them in cmmection with the Project, the Contract, and retainage, release and discharge each other and their employees, agents, officers, directors, representatives and officials of and from any and all claims, demands, damages, actions and causes of action, at law or in equity, whether known or unknown, which either of them has against the other, relating to the Project, Contract and retainage, and the labor, services and materials furnished thereto. Nothing contained herein shall constitute a waiver of any Project warranties in favor of Carmel or the rights of Carmel to enforce the terms of this Agreement. 4. Within sixty (60) days of execution of this Agreement, the Joint Venture shall draft, file, and take all actions necessary to prosecute, at the Joint Venture's expense, a motion for summary judgment and accompanying brief, approved by counsel for Carmel, which approval shall not unreasonably be withheld, on the remaining claims asserted against Carmel in the CMC Litigation. 5. Carmel shall cooperate with the Joint Venture in the trial, if any, of the CMC Litigation. 6. It is expressly understood and agreed that the payment and acceptance of the above-stated sum, and the releases as hereinbefore described, are not admissions of liability by any party hereto. Each party expressly denies any liability of any kind to any other party arising out of the Parties' Contract, the Project, and the CMC Litigation, and each enters into this settlement solely to buy their respective peace. 7. The undersigned representatives of the parties state that they are the duly authorized representatives of the parties and as such have authority to make the statements herein and to execute this Agreement for and on the parties' behalf. 8. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Indiana. 9. The terms of this Agreement are contractual and not a mere recital and this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 10. This Agreement contains the entire agreement between the parties regarding the subjects hereof. 11. Notwithstanding differing dates of execution hereof, this Agreement shall be deemed to have been made and entered into on the date and year hereinabove described and except as otherwise provided for herein with respect to effective dates for specific obligations, shall become binding and effective upon that date. 12. This Agreement may be executed in one or more counterparts, each of which shall constitute a duplicate original. 2 THE JOINT VENTURE AND TROTTER CONSTRUCTION COMPANY~ INC. By: James H. Trotter, Sr., President For Trotter Construction Company, Inc. and as authorized representative of the Joint Venture STATE OF iNDIANA ) )SS: COUNTY OF MARION ) Before me, a Notary Public in and for said County and State, personally appeared James H. Trotter, Sr., President of Trotter Construction Company, Inc. and authorized representative of the Joint Venture, and he being first duly sworn by me upon his oath and before me and subscribed in my presence, acknowledged the execution of the foregoing Agreement, and stated that the facts and matters therein set forth are true and correct, and executed the same. Witness my hand and Notarial Seal this day of September, 2004. My Commission Expires: Notary Public, Signature GRADY BROTHERS, INC. By: Grady Brothers, Inc. , President STATE OF INDIANA ) )SS: COUNTY OF MARION ) Before me, a Notary Public in and for said County and State, personally appeared _, President of Grady Brothers, Inc., and he being first duly sworn by me upon his oath and before me and subscribed in my presence, acknowledged the execution of the foregoing Agreement, and stated that the facts and ruatters therein set forth are true and correct, and executed the same. Witness my hand and Notarial Seal this day of September, 2004. My Commission Expires: Notary Public, Signature CITY OF CARMEL Approved and Adopted this <~4-h day of September, 2004. CITY OF CARMEL, iNDIANA By and through its Board of Public Works and Safety BY: //~._ , ~at e;S B r ulnar d' ~ Q ch ng(5~,-~O~.fi? Mary An/ffBur. ke, ~ember Date: Lori S. Watson, Member~'~ / / __ AT~~ - Diana Cor~ ~asurer Date: By: INDS02 TFS 660238vl 4 COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA g Of ce ~, ~ cc-- d~ '-/ Date: /' df ~ Y / Ronald E. Carter~ President Pro Tempore Date: Fredrick J. Gla~er Date: f Brian D. Mayo Date: Mark Rattermarm Date: J~imes Brainard, Mayor Date: ~'- ~ - Diana L. Cordr)~Treasurer Date: