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HomeMy WebLinkAboutAmbassador IncSETTLEMENT AGREEMENT, RELEASE AND COVENANT NOT TO SUE THIS AGREEMENT is made and entered into by and between Ambassador, Inc. ("Ambassador"), an Indiana corporation with offices at 9365 Counselor's Row, Suite 201, Indianapolis, Indiana 46240, and the City of Carmel, Indiana, an Indiana municipal corporation, by and through its Board of Public Works and Safety ("City"). Recitals 1. On December 2, 2002, Ambassador and on December 4, 2002, City executed an "Agreement for Purchase of Goods and Services," City Contract No. 1204.02.03 (the "Website Agreement"). Pursuant to the Website Agreement, City agreed to pay Ambassador the sum of Eighty Thousand Dollars ($80,000.00) in return for Ambassador's redesign of City's website pursuant to and in accordance with certain design criteria and requirements. 2. Pursuant to the terms of the Website Agreement, City paid Ambassador Sixty Thousand Dollars ($60,000.00), the receipt of which is hereby acknowledged by Ambassador. 3. The balance allegedly due to Ambassador from City pwcsuant to the Website Agreement is Twenty Thousand Dollars ($20,000.00) (the "Ambassador Claim"). City disputes the Ambassador Claim. 4. City alleges that Ambassador has breached the Website Agreement by providing a website design that does not satisfy the terms of same and is otherwise defective and incomplete (the "City Claim"). Ambassador disputes the City Claim~ 5. In order to avoid the cost, expense and uncertainty of litigation, and to set at rest any claims which have been made or which could be made regarding the Website Agreement, the City Claim and/or the Ambassador Claim, the parties now desire to fully settle this matter on the terms set forth herein. Agreement NOW, THEREFORE, in consideration of the premises, agreements and considerations contained herein and upon the terms and conditions hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Release of City of Carmel~ Indiana. Ambassador does hereby forever release and discharge City, its employees, agents, insurers, directors, officers, officials, attorneys, successors and assigns, of and from any and all liability, claims, demands, controversies, damages, costs and expenses, actions and causes of action whatsoever, on account of or related to any loss or damage of any kind or nature sustained by Ambassador from or relating to the Website Agreement, the Ambassador Claim, or otherwise. 2. Release of Ambassador. City does hereby forever release and discharge Ambassador, its employees, agents, insurers, directors, officers, officials, attorneys, successors and assigns, of and from any and all liability, claims, demands, controversies, damages, costs and expenses, actions and causes of action whatsoever, on account of or related to any loss or damage of any kind or nature sustained by or resulting to City from or relating to the Website Agreement, the City Claim, or otherwise. 3. Covenant Not to Sue. Ambassador and City, on behalf of themselves and their respective employees, agents, insurers, directors, officers, officials, attorneys, successors and assigns, do each hereby agree and covenant to forever refrain from initiating, pressing, collecting or in any way aiding or proceeding upon any and all actions and causes of action against the other for any damages, costs, expenses, lost opportunities, compensation or any other compensatory, punitive, equitable or other relief whatsoever and however arising, whether known or unknown, foreseen or unforeseen, developed or undeveloped, which they had, now have or may have after the execution of this Agreement against the other arising out of, based upon or associated with the Website Agreement, the City Claim, the Ambassador Claim, or otherwise. 4. No Admission. The parties understand and agree that this Agreement is intended to terminate and settle all further controversy concerning or relating to the Website Agreement, the Ambassador Claim and/or the City Claim, that this Agreement is made in the interest and spirit of compromise, and that this Agreement is not and shall not be construed as an admission of liability on the part of either party to the other, or to any other person, corporation, court, tribunal, fact-finder or other individual or entity whatsoever. 5. Termination Of Website Agreement. As of the effective date of this Agreement, the Website Agreement shall be deemed terminated, null and void. 6. Authorization. Each individual executing this Agreement on behalf of a party hereto does hereby warrant that he or she is authorized to act on behalf of such party in executing this Agreement, and that the same is fully binding on the party hereto whom he or she represents. 7. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective spouses, children, relatives by blood or marriage, officers, officials, directors, stockholders, employees, successors, assigns, related corporations, representatives, insurers, mortgagees, heirs, attorneys, executors, administrators and agents, although the same are not specifically named herein, and effectuate a complete settlement between the parties regarding the subject matter hereof. 8. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein and supersedes all prior agreements and understandings whatsoever between the same. This Agreement shall be modified only by a writing duly signed by both parties hereto. No promises, representations, understandings or other warranties have been made by either party hereto respecting the subject matter hereof, other than those expressly set forth herein. This Agreement constitutes the understanding of both parties and no party shall be deemed to be the drafter of this Agreement. The language of all parts of this Agreement shall be construed as a whole, according to its fair meaning, and not strictly for or against any party hereto. 9. Failure to Comply. Should any party hereto breach or otherwise fail to comply with the terms and provisions of this Agreement, the prevailing party in such dispute shall be entitled to recover, in addition to any and all other appropriate relief, all costs arising therefrom, including, but not limited to, reasonable attorney fees. 10. Advice of Counsel. The parties have each had an opportunity to engage independent counsel to explain the provisions of this Agreement and their full legal effect, and the parties agree that this Agreement is being entered into voluntarily and not as a result of any duress or undue influence and only after the parties have each carefully and completely read and understand each and every term and condition of this Agreement. 11. Governing Law. This Agreement was negotiated and is intended to be performed pursuant to the laws of the State of Indiana, and shall be construed and enforced in accordance therewith, except for Indiana's conflicts of law principles. 12. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original. All such counterparts taken together shall be determined to be one and the same insmunent. It shall not be necessary in making proof of this Agreement, or any counterpart hereof, to produce or account for any of the other counterparts. IN WITNESS WHEREOF, the parties have signed this Agreement on the date below their respective signature or the signature of their representative. The effective date of this Agreement shall be the date on which it is last signed by a party hereto. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: J~es Brainard, Presiding-Officer Date: -- S. W tson, mt r Di~ L. Cordray, ~_~ ~lprk-Treas~er AMBASSADOR, 1NC. Aut~orize~t Sjgnat~ret / Printed Name SSN: Date: