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HomeMy Public PortalAboutResolutions-2022-074RESOLUTION NO. 2022-074 A RESOLUTION APPROVING THE SETTLEMENT AND RELEASE AGREEMENT FOR TRAIL PHASE 7 Whereas, The City of Tiffin has been presented with a proposed settlement and release agreement regarding the completion of Trail Phase 7 with Carter & Associates, which is attached. Now, therefore be it resolved by the City Council of the City of Tiffin, Iowa to approve and accept the attached settlement and release agreement under the negotiated terms spelled out within. On the 16th day of August, 2022, at a regular meeting of the Tiffin City Council, Tiffin, Iowa, Councilperson Limkemann introduced RESOLUTION NO. 2022-074, A RESOLUTION APPROVING THE SETTLEMENT AND RELEASE AGREEMENT FOR TRAIL PHASE 7 and made a motion for approval. Motion seconded by Councilperson Orris. Ayes: Havens, Olney, Orris, Limkemann, Schnedler. Nays: None. Absent: None. Whereupon five Council members were present and voted approval and Mayor Berner declared that the RESOLUTION NO. 2022-074, A RESOLUTION APPROVING THE SETTLEMENT AND RELEASE AGREEMENT FOR TRAIL PHASE 7 to be adopted and signified his approval of the same by affixing his signature thereto. Passed by the City Council on the 16th day of August, 2022. City of Tiffin Steven L. Berner, Mayor ATTEST: Abigail Hera, City Clerk SETTLEMENT & RELEASE AGREEMENT This Settlement & Release Agreement ("Agreement" or "Release") is made between Carter & Associates, Inc. ("Carter") and the City of Tiffin, Iowa ("the City"). 1. BACKGROUND. Carter acted as prime contractor on a City trail project. Carter alleges the City breached its agreement with Carter when it withheld certain funds at the conclusion of the project, the details of which are set forth in Johnson County, Iowa case LACV083404, styled Carter & Associates, an Iowa Corporation v. City of Tiffin, an Iowa Municipal Corporation. 2. SETTLEMENT PAYMENT. In consideration for Carter's dismissal with prejudice LACV083404, and waiver of all claims set forth therein, the City agrees, as a compromise of a dispute claim, to pay the sum of Forty-three Thousand Eight Hundred and Sixty -Nine Dollars and forty-four Cents ($43,869.44), which sum shall be comprised of a combination of retainage and amount due as shown on Plaintiff's Exhibit B, minus $2000, and shall represent full and final payment for the trail project at issue. This sum assumes no claims are timely made by subcontractors against the retainage and, if that occurs, retainage may be reduced accordingly if said claims are deemed valid (see paragraph 5, below). 3. DISMISSAL. Carter agrees, upon receipt of $43,869.44 from the City, to dismiss with prejudice LACV083404 and any other actions or proceedings it may have initiated or filed arising out of the trail project at issue. 4. RELEASE. Carter, individually and on behalf of its successors and assigns, in consideration of the payment to it of $43,869.44, does fully release and forever discharge the City of Tiffin, Iowa and all its employees, officers, directors, elected officials, attorneys and agents, including all subsidiary, parent, and affiliate entities, from any and all liability for all claims, known or unknown, arising out of trail project at issue and which were raised, or could have been raised, in LACV 083404. 5. TAX LIABILITY/THIRD PARTY LIABILITY. Carter is solely responsible for any and all tax liability related to the settlement payment identified in Paragraph 2, above, and shall defend, indemnify and hold harmless the City from any such tax liability. Carter further represents there are no subcontractors or suppliers with outstanding claims for payment on the public contract at issue. To the extent any subcontractors or suppliers now or in the future require payment on the public contract but who have not been paid out of the retainage, Carter agrees it is responsible for payment of the same, and shall further indemnify, defend and hold harmless the City for said claims. 6. GENERAL PROVISIONS. (a)SeveraWilly. If any term of this Agreement is deemed unenforceable or invalid for any reason, that term shall be severed from this Agreement and the remaining terms of this Agreement shall be given affect to the greatest extent possible without the unenforceable or invalid provision. (b)Integraton. This Agreement constitutes the entire understanding and intent of the parties. This Agreement supersedes all prior negotiations, discussions, and representations by the parties. It may not be modified unless the modification is done through a written document signed by all parties. This Agreement is made solely in reliance upon each of the parties' own knowledge, belief and judgment. No representations have been on matters that include, without limitation, issues relating to the tax consequences of this Agreement. (c) No Admission. This Agreement is part of a settlement of uncertain and disputed claims and is not an admission of any liability or fact of any kind whatsoever. (d)Counsel/Knowledge. All parties to this Agreement are represented by attorneys. All parties are signing this Agreement solely upon their own knowledge, belief and judgment and not upon any representation made by any other party. (e) Applicable Law. This Agreement shall be construed pursuant to the laws of the State of Iowa. This Agreement shall not be construed either in favor of one party or against one party, but pursuant to the fair and reasonable interpretation of the language used. (f) Additional Documents. All parties agree to take any additional action, such as, but without limitation, executing supplemental, administrative, or clerical documents that are necessary or appropriate to give full force and effect to the terms and intentions of this Agreement. (g) Costs and Litigation Fees. Each party shall be responsible for paying their own costs, attorney fees, and other litigation expenses. (h) Open Records. Claimant recognizes that the City shall comply with the Iowa Open Records Act. Agreed: & Associates, Inc. Date Joseph Moreland Attorney for Carter & Associates CITY OF '1'IFFIN, IOWA By: Mayor (By resolution dated Attest: Date Patrick J. O'Connell Date Attorney for the City of Tiffin, Iowa