Indiana Construction Corp.o? APPROVED, AS TO
Y6 go °`t1 FORM BY:
SETTLEMENT AND RELEASE OF ALL CLAIMS
This Settlement and Release of all Claims ("Agreement') is entered into this _
day of Au ((, ?, 199_7, by and between Indiana Construction Corp., with an address
of 4625 !Rustriat Road, P. O. Box 10147, Fort Wayne, Indiana 46850 ( "Contractor")
and the City of Carmel, Department of Utilities, by and through its Board of Public
Works and Safety, with an address of One Civic Square, Carmel, Indiana 46032 ("City"),
with reference to the following:
A. WHEREAS, Contractor and City entered into awritten agreement, dated May
28, 1993 ("Contract"), pursuant to which Contractor was to construct Water7reatment
Plant #5 ("Plant"), a four (4) million gallon per day water treatment facility located at
5484 East 126' Street, Carmel, Indiana.
B. WHEREAS, the Contract provided that Contractor would begin construction
of the Plant within ten (10) days of receipt of City's Notice to Proceed and would
complete construction of the Plant within three.hundred sixty. five (365) consecutive
calendar days from the date of said Notice to Proceed:
C. WHEREAS, City's Notice to Proceed was, received by Contractor on or about
June 1, 1993.
D. WHEREAS, Contractor began construction of the Plant on or about June 10,
1993, and completed construction, subject to resolution of punch list items, on or about
January 16, 1995, a total of five hundred eighty (580) days later, and two hundred fifteen
(215) days after the Contract's mandatory completion date.
E. WHEREAS, on or about -June 15, 1994; City notified Contractor of its
election under the Contract to collect "liquidated damages of five hundred dollars
($500.00) per day, from the Contract's mandatory completion date until the date on
which substantial completion of the Plant construction occurred.
F. WHEREAS, under and pursuant to the terms.of the Contract, City was to pay
Contractor the final sum of approximately $4,019,561.00, which amount includes certain
change orders totaling $35,561.00.
G. WHEREAS, as of June 30, 1997, City has paid Contractor $3,781,260.00
under and pursuant to the terms of the Contract.
H. WHEREAS, as. of. June 30, 1997, City contends"that the total sum of
liquidated damages it is due pursuant to the Contract is in excess'of $107,500.00.
1. WHEREAS, City contends that, as of June 30, 1997, Contractor has not
completed punch list items on the Plant totaling in excess of $28,000.00.
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J. WHEREAS, City contends that, as of June 30, 1997, City has incurred
damages totaling not less than $21,000.00 as a result of Contractor's contamination of
City's water distribution system during or on account of its construction.of the Plant.
K. WHEREAS, Contractor contends that the delay in completion of Contractor's
work was both excusable and compensable under the Contract, that City is not entitled to
collect any liquidated damages and that, to the contrary, Contractor is entitled to
additional payment by reason of such delays.
L. WHEREAS, mindful of the costs, time and uncertainties of litigation, City
and Contractor now wish to fully and finally settle all of their several respective claims
against each other under or pursuant to the Contract, on and pursuant to the terms and
conditions set forth herein, which terms and conditions both parties acknowledge and
represent to be fair, reasonable, adequate and in their individual and mutual best interests.
NOW, THEREFORE, in consideration of the'foregoing Recitals and the mutual
terms, covenants and, conditions hereinafter set forth, Contractor and City agree as
follows:
1. The foregoing Recitals are incorporated into this Agreement and made a part.
hereof as if fully set forth herein.
2. Contractor and City acknowledge and agree that this Agreement. and the
consideration provided' hereunder have been given and received purely on a compromise
basis, and that this Agreement is not, and is not to be co6strued as, an admission by either
Contractor and/or City that any action by either in relation to the Contract, or otherwise,
was wrongful, unlawful or violative of any federal, state or local common, administrative
or stattitory law, constitutional right or custom, and that each party hereto specifically
denies any illegal or improper conduct whatsoever against the,other or anyone else.
3. Contractor, on its own behalf, and on behalf of its. past, and present officers,
directors, agents, administrators, guarantors, attorneys, employees, shareholders, trustees,
representatives, nominees, subsidiaries, divisions, alter egos, successors and assigns,
whether or not specifically named herein, does hereby release, remise and forever
discharge and hold. harmless City and City's officers, officials, directors, agents,
administrators, guarantors, attorneys, employees, trustees, representatives, nominees,
departments, divisions, alter egos, successors and assigns from any and all manner of
action, causes of action, suits, 'demands, liens, damages, losses, costs, expenses, interest,
attorney fees, accounts, bonds, covenants, controversies, agreements; liabilities, promises,
judgments, reimbursements, and/or claims of any kind or nature whatsoever, no matter
how denominated, whether known or unknown; patent or latent, in law or in equity,
which it now has, claims to have or ever had against City and that directly or indirectly
arises out of, under or is related in any way to the Contract, or otherwise.
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4. City, on its own behalf, and on behalf, of its past and present officers,
officials, agents, guarantors, attorneys, employees, trustees, alter egos, successors and
assigns, whether or not specifically named herein, does hereby release, remise and forever
discharge and hold harmless Contractor and Contractor's officers, directors, agents,
administrators, guarantors, attorneys, employees, shareholders, trustees, representatives,
nominees, subsidiaries, divisions, alter egos, successors and assigns from any and all
manner of action, causes of action, suits, demands, liens, damages, losses, costs,
expenses, interest, attorney fees, accounts, bonds, covenants, controversies, agreements,
liabilities, promises, judgments, reimbursements, and/or claims of any kind or nature
whatsoever, no matter how denominated, whether known or unknown, patent or latent, in
law or in equity, which it now has, claims to have or ever had against Contractor and that
directly or indirectly arises out of, under or is related in any way to the Contract, or
otherwise.
5. In consideration for Contractor's release as,set forth in Paragraph 3 hereof,
City shall pay to Contractor the sum of $280,100.53, on or before September.l5, 1997.
The parties agree that such payment shall be in full performance of the duties of City
under the Contract.
6. Contractor hereby agrees that, upon receipt of the settlement amount set forth
in Paragraph 5 hereof, it shall, within three (3) days thereof, remove and not re-attach any
and all liens and other. encumbrances, if any, if has caused to be placed upon City
property and/or any bonds or warrants due or to become due City by virtue of or under
the Contract, or otherwise.
7. Contractor and City each_ covenant and agree to refrain from instituting,
pressing, prosecuting or in any way encouraging or aiding in the institution or
prosecution of any claim, demand, action or cause of action against the other and/or the
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 and that arises or arose out of or under the Contract, or
otherwise, prior to the effective date of this Agreement.
8. Contractor hereby agrees to indemnify and hold harmless. City, and all
releasees identified in Paragraph 3 hereof, from and against any and all losses, costs,
judgments, damages and/or expenses whatsoever, including, without. limitation, attorney
fees, costs and/or expert fees incurred by it or them in defense, should Contractor and/or
its officers, employees, attorneys, agents, directors, guarantors, employees, shareholders,
trustees, representatives, subsidiaries, divisions, alter egos, administrators, nominees,
successors and/or assigns assert any claim or cause of action against City regarding,
derived from or related to those claims which have been discharged by virtue of the
releases contained in Paragraph 3 hereof.
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9. City hereby agrees to indemnify and hold harmless Contractor, and all other
releasees identified in Paragraph 4 hereof, from and against any and all losses, costs,
judgments, damages and/or expenses whatsoever, including, without limitation, attorney
fees, costs and/or expert fees incurred by it or them in defense, should City and/or its
officers, officials, employees, attorneys, agents, directors, guarantors, trustees,
representatives, successors and/or assigns assert any claim or cause of action against
Contractor regarding, derived from, or related to those claims which have been
discharged by virtue of the releases contained in Paragraph 4 hereof..
10. If any legal proceeding is instituted or brought by any person or entity
granting a release pursuant to this Agreement against any person or entity released hereby
and the ultimate disposition of such legal proceeding is that it is barred because of this
release, then the prevailing party shall be entitled to recover from the non-prevailing party
or parties its costs and expenses, including reasonable attorney fees, incurred in
connection with such legal proceeding, in addition to any other damages or relief they
may seek as a ,result thereof.
11. Should either party breach or otherwise fail to comply with the terms and
conditions of this Agreement, the prevailing party in any 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, attorney fees.
12. This Agreement shall be governed by and construed in accordance with the
laws of the State of Indiana, except for its conflicts of law provisions. The parties
consent and agree that, in the event they file a lawsuit hereunder, they shall file it in an
appropriate court in Hamilton County, Indiana only, and that such court is the-appropriate
venue for and has jurisdiction over same.
13. The parties covenant and certify that they have not assigned or otherwise
transferred to any person or entity any of their respective rights or obligations under the
Contract.
14. The parties each acknowledge and represent that, in executing this Agreement,
they have not relied upon any inducements, promises or representations made by any
other party or any party representing or serving any other party hereto.
15. 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 restricted or otherwise modified to the extent. necessary
to render the same valid and enforceable, or, in the event that any provision of this
Agreement cannot be modified or restricted so as to be valid and enforceable, then the
same shall be deemed excised from the Agreement, and the Agreement shall be construed
and enforced as if such provision had originally been incorporated therein as so restricted
or modified or as if such provision had not originally been contained therein, as the case
may be.
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16. The parties hereto each warrant that they have read this Agreement and
understand it, have had the advice and counsel of an attorney throughout its negotiation,
that all statements made herein are true and complete and that they enter into this
Agreement freely and without any duress, undue influence or coercion, each party to pay
its own costs and attorney fees.
17. Each individual executing this Agreement on behalf of any party hereto does
hereby personally warrant that he or she is authorized to act on behalf of such party in
executing this Agreement, that all statements made herein are true and complete and that
this Agreement is fully binding on the party hereto which he or she represents.
18. The parties hereto agree that this Agreement shall not be altered or otherwise
amended except pursuant to an instrument in writing signed by all parties hereto, may be
used as evidence in any subsequent proceeding in which either of the parties allege a
breach hereof, and may be executed in one or more counterparts, each of which shall'be
deemed an original, but all of which shall constitute one and the same,document.
19. This Agreement constitutes and contains the entire agreement between the
parties concerning the transaction contemplated herein, and supersedes all prior oral and
written negotiations, proposed agreements and understandings, if any, between the
parties.
20. The parties hereto agree that this Agreement shall become effective as of the
date upon which the last of the parties hereto executes. same.
INDIANA CONSTRUCTION CORP
By:
13013 F cIESCF_
Printed Name
Ci.ILt/Rh'IAL ? G,FQ
Title:
Date: _4 9 7
CITY OF CARMEL, BY AND THROUGH
ITS BOARD OF PUBLIC WORKS AND
SAFETY] I'
By:
blon. James BraiA17-
Date:., /£??a? O t' M A Bur
By: , Mayor
Date:
By:
Billy alker B
Date:
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ATTEST:
Diana Cordray, Clerk-Treasurer
Date:
State of Indiana
County of Hamilton
I, A1;Y5?A i TZ/Lt? Notary Public in and for the City/County aforesaid, in the
State of Indiana, do hereby certify that ?X3 - r J655e of Indiana Construction
Corp., whose name is signed on the foregoing instrument bearing date of the fg_day of
GU?GL57- 1997, this day acknowledged the same before me in the City/County
aforesaid.
Given under m hand this to da of 6t 1997.
Notary Public
My commission expires
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