Loading...
HomeMy WebLinkAboutCarmel/Davis Homes/Emerald Crest/Avian Glen As 7 APPROVED AS TO FORM BY 7i9P SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (the Agreement') is made and entered Into and between the Cit of Carmel Cannel') and Fidelity and Deposit Company of Maryland F&D") this IW'Zay of 2009 WHEREAS, Davis Homes, LLC ('Davis') applied for approval of certain subdivisions and received City of Carmel Plan Commission approvals on the following subdivisions Trails at Avian Glen Pnmary Plat, Avian Glen, Sections 8 -10, Emerald Crest at Hazel Dell Summit Subdn islons and WHEREAS at the request of Carmel and others F &D issued the following Maintenance Bonds "Bonds in the respective penal sums, on behalf of Davis as pnncipal and Carmel as obligee for the Subdivisions as follows Bond No Subdn ision Proiect Penal Sum 8755666 Emerald Crest Sect 1 interior Sides a1ks $5 996 00 8755661 Trails at Avian Glen Sect 9 Intenor Sidew elks $9 )92 00 8755660 I rails at Avian Glen Sect 10 Sidewalks S4 963 00 8755667 Emerald Crest Sect 2 Streets $8 838 00 87)5669 Emerald Crest Sect 2 Intenor Sidewalks $2 921 00 8755670 Emerald Crest Sect 2 Extenor Sidewalks $283 00 and WHEREAS Davis has ceased operating its business and is unable to complete its obligations to Carmel as required in the approval process for the Subdivisions, and WHEREAS Carmel has made demand upon F&D to complete Davis' obligations, and WHEREAS F&D is willing to undertake certain work in exchange for a release of F&D's obligations under the above referenced Bonds and a return of the Bonds marked as 'Void," upon acceptance of the Completion Woik as defined herein, and WHEREAS Cannel represents to F&D that it has lawful authonty to enter into this Agreement and F &D represents that it has the authonty to enter into and perform all obligations ansing under this Agreement NOW THEREFORE, in consideration of the mutual promises and agreements contained herein and other good and valuable consideration, the Parties agree as follow s 1 The above recitals are not merely recitals but are incorporated into this Agreement 2 F &D agrees to undertake the completion of Davis' obligations as required under the Bonds for the intenor sidewalks on Avian Glen Section 9, sidewalks on Avian Glen Section 10 the intenor sidewalks on Emerald Crest Section 1 the intenor sidewalks on Emerald Crest Section 2, and the extenor sidewalks on Emerald Crest Section 2 LR00027\941670 1 1 The Parties agree that the total work required by F&D in this Agreement is listed on attached Exhibit A "Completion Work Carmel acknowledges that F &D, as completing surety is acting in its capacity as the completing surety for Davis in making arrangements to perform the Completion Work and is not a completing contractor, and that F &D is not assuming any obligations beyond those sct forth in the Bonds 3 F &D will a) enter into an agreement with a certain Completion Contractor to provide the labor and matenals required to perform the Completion Work and b) monitor, supervise and administer the Completion Work utilizing Nicholson Piofessional Consulting, inc (`NPCI as its construction consultant No contractual relationship shall exist between Carmel and NPCI and the Completion Contractor F &D shall extend its best efforts to complete the Completion Work within a reasonable and timely manner and as soon as practicable Carmel agrees to provide F&D, NPCI and all Completion Contractors with access to the required work as allowed or required by the Contract Documents 4 Insofar as Carmel has any right title or interest therein Carmel agrees that F&D NPCI and any Completion Contractors shall have the nght to use, at their own nsk, without charge, any of the equipment, matenals and appurtenances furnished or supplied by Davis or its pnor subcontractors which may be stored on or about the premises of the Subdivision site or matenals which may have been fabncated for use in connection with the Subdivision, whethcr or not presently upon the Subdivision site 5 It is understood and agreed that F &D does not by virtue of this Agreement undertake or assume any obligation or liability other than the obligations ansing under this Agreement F &D agrees to expend such of its own funds as may, from time to time, be necessary to pay for completion of the Completion Work, provided, however, that F&D's obligation shall, in no event, exceed and it is hereby expressly limited to, the expenditure of the penal amount of the Bond for the respective Project as reduced by all amounts previously expended or to be expended by F &D for all work that was completed in accordance with that Project lf, out of its own funds, F &D either expends or is committed to expend, the full penal amount of the Bond for work completed for that Project then F &D shall have no further obligation of any description to Carmel ansing out of, or in connection with, that Bond, and F &D's completion of the work for that Project, at F &D s option, will cease 6 The total liability of F&D under each Bond is limited to and shall not exceed the penal amount of the Bond for the respective Project in the event F&D expends, out of its own funds, the full penal amount of the Bond as relates to the respective Project, F &D shall ha%e no further obligation of any descnption ansmg out of, or in connection with that Bond All payments made by F &D previously for the Project and those made in the future, have been and will be credited against the penal amount of the respective Bond Carmel agrees that in no event shall F &D be liable for any 'R000271941670_1 2 7 and all sums, amounts, claims, liquidated or unliquidated damages punitive damages penalties assessments, fees, fines, w hether claimed or imposed, for any reason by any person, entity, or federal, state, county or municipal government agency, or political subdivision thereof for any sum In excess of the penal sums of the Bonds 7 The acceptance of the Completion Work by Carmel or the expenditure by F&D of the Bond penal amount, whichever comes first, shall satisfy F &D s obligations under that Bond and this Agreement for the respective Project 8 Upon acceptance by Carmel of the Completion Work Carmel fully and finally releases, discharges and acquits F &D of and from any and all claims, demands, actions and causes of action, whether known or unknown, suspected or unsuspected, ansing out of or in any way related to or connected with the Subdivisions and the Bonds, including but not limited to a release of any obligations under Bond No 8755667 for Emerald Crest Section 2 Streets Carmel agrees to fully indemnify, defend and hold harmless (including attorney's fees), to the fullest extent permitted by law F &D from any and all claims demands, actions and causes of action made against F &D ansing out of or relating to Bond No 8755667 for the Emerald Crest Section 2— Streets except as to claims demands actions and causes of action ansing as a result of the negligence on the part of F &D 9 Upon acceptance by Carmel of the Completion Work Carmel shall return the Bonds marked as "Void to F &D 10 This Agreement shall constitute the whole of the understandings discussions and agreements by and between Carmel and F &D and shall not be amended, modified or revoked without the pnor wntten consent of Carmel and F &D 11 All notices and correspondence shall be mailed by first class mail with a copy by facsimile, to To Owner City of Carmel Thomas D Perkins Assistant City Attorney One Civic Square Carmel, iN 46032 Phone PHONE NUMBER Fax FAX NUMBER To Surety Steven A Hauck Claims Counsel Fidelity and Deposit Company of Maryland Zunch Surety and Financial Claims Post Office Box 968037 Schaumburg, IL 60196 Voice 317 251 0516 LR00027W41670_1 3 Fax 800 329 -6112 With a copy to Lin B Heath PE Nicholson Professional Consulting, Inc 500 Sun Valley Dnve, Suite H 4 Roswell GA 30076 Cell 404 -313 0666 Fax 770 -645 6963 12 Cannel and F &D agree that any and all agreements judgmental decisions, or any other matters pertaining to the day -to -day cooidinatton of the work to be performed undcr this Agreement will be made between F &D's designated representative, NPCI and Carmel s designated representative 13 Nothing in this Agreement shall be deemed to create any nghts in favor of, or inure to the benefit of any third party or to w aive of release any defense or limitation against third -party claims 14 It is understood and agreed that this Agreement shall be governed by construed and enforced in accordance with, and subject to, the laws of the State of Indiana 15 The Parties and the signatones hereto warrant that each has the power and authonty to execute this Agreement Carmel and F &D have been represented by counsel who have matenally participated in the authorship of this Agreement, it being understood that the rule of construction that a written agreement is construed against the party drafting or preparing such agreement shall specifically not be applicable to the interpretation of this Agreement The provisions of this Agreement shall be applied and interpreted in a manner consistent w ith each other so as to carry out the purposes and intent of the Parties, but if for any reason any provision is unenforceable or invalid, each provision shall be earned out with the same force and effect as if the severed portion had not been a part of this Agreement 16 This Agreement shall be effective from the date that the Parties have executed an onginal or counterpart of this Agreement All such fully executed counterparts will collectively constitute a single agreement Delivery of this Agreement may be accomplished by electronic means with the onginal document to be promptly executed and delivered, if requested WHEREFORE, the Parties have cxecuted this Settlement Agreement by their authonzed Representatives LR00027W41670 1 4 r DATED City of Carmel By Its and lawfully authorized representative DATED y Ser t en Fidelity and Depo om land By Steven A Hauck Its Claims Counsel and lawfully authorized representative um00:71941670_ i 5 IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows CITY OF CARMEL INDIANA by and through its Board of Public Works and Safety 7 BY il tAANA4-6 /e r es Brainard, Presiding Officer Authonzed Signature Date Pnnted Name M ry n urke em. r Title Date 411 FID/TIN tIi Lon S Wat M ber SSN if Sole Propnetor Date 9ith /Oq Date ATTES na Cordray,I T reasurer Date Izer 0 f/ ,EtE BS I Dens horsiest SenctIFOlUat mm Sane FORM fin MA; 9/1100191051 AM'