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HomeMy WebLinkAboutCarmel/John & Sheila Fischer APPROVED, S TO FORM gY SETTLEMENT AGREEMENT, RELEASE AND COVENANT NOT TO SUE THIS AGREEMENT is made and entered into by and between John and Sheila Fischer the Fischers 2817 Bndlewood Circle, Carmel IN 46033, and the City of Carmel, Indiana, an Indiana municipal corporation by and through its Board of Public Works and Safety City Recitals 1 On or about September 6 2008, the Fischers were involved in a bike accident within City nght of way on a sidewalk maintained by the City "the Incident') 2 The Fischers have more than two thousand dollars ($2,000 00) in unpaid medical bills 3 City disputes any liability for the Incident but has taken part in negotiations to resolve this matter 4 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 he made regarding the Incident, 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, in the form of four hundred dollars ($400 00) the receipt and sufficiency of which is hereby acknowledged the parties agree as follows 1 Release of City of Carmel, Indiana The Fischers do hereby forever release and discharge City, its employees, agents, insurers directors, officers, officials, attome}s contractors, 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 the Fischers from, as a result of, associated with or in any way related to the Incident, or otherwise 2 Release of The Fischers City does hereby forever release and discharge the Fischers 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 sustamed by or resulting to City from, as a result of, associated with, or in any way related to the Incident is owor+ Sri perbohnsentilemet dose n,eher 1 3 Covenant Not to Sue The Fischers 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 from, arising out of, based upon related to or associated with the Incident or otherwise 4 No Admission The parties understand and agree that this Agreement s the product of negotiations, was ,jointly drafted, and is intended to terminate and settle all further controversy concerning or relating to the Incident, 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 tnbunal fact finder or other individual or entity whatsoever 5 Authorization Each individual executing this Agreement on behalf of a party hereto does hereby warrant that he or she is authonzed 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 6 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 mamage 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 7 Entire Agreement This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein and supersedes all pnor agreements and understandings whatsoever bet. een the same This Agreement shall be modified only by a wntrng 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 stnctly for or against any party hereto iea.se lneti palasnmeettealement sass fate doe eavosi 2 8 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, m addition to any and all other appropnate relief, all costs ansmg therefrom, including but not limited to reasonable attorney fees 9 Advice of Counsel The parties have each had an opportunity to engagc 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 10 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 pnnciples 11 Counterparts This Agreement may be executed in one or more counterparts each of which shall constitute an ongrnal 411 such counterparts taken together shall be determined to be one and the same instrument 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 Ia.s. thatratt yerixemaasubrotat dose meeamemmsr 3 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 or CARMEL, INDIANA SHEILA FISCHER By and through its Board of Public Works and Safety ___,e(all I hp 7, A A c 1 2 BY JOHN FISCHER James Brat and Presidin• Officer �y Date 7 1 ate l L Y ary A n Burke, Member Date 7 07 Lon S Watson M Date INC? C? A 1 its Diana L Cordray I•t Clerk Treasurer Date 1 tcb nerd 6 on flub: ropdsalewlm wme ee ovnampom. mum elm.mr .Eoews..ldflmad Neese rnci decQAM9I