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Home My Public Portal About151-2019 - Sanitary - Release Agreement - Harold SimpsonAIUTUAL RELEASE AND SETTLEMENT, AGREEMENT This Mutual Release and Settlement Agreement (the "Agreement") is entered mite y and between The pity of I�ic miond, Indiana ("Oty")'and Darold Simpson ("Property Owner"). VHEREAS, a. dispute arose between the Parties relating to kor nwate_r and groundwater located at 23 03 Libei ty Avenue, Richmond, IN 473 74 - (``Subject -Property"), which is owned by Mr.-,Sxxnpson; and WHEREAS, Mr. Simpson has complained that stormwater and groundwater in the, xrmnediate area of the Subject Property is causing flooding at various points throughout the. year; and WB EREA.S, City has caused to be investigated the source of any water issues associated with :the Subject Property, and has further caused request for quotes to be issued relative to certain remedial worlc ' described below; and WHEREAS, the Parties desi�•e to resolve and settle their disputes and forever put all of their claims to rest. NOW, THEREFORE, - in consideration of the covenants -and promises contained herein, the Pail es agree as follows: Y. Description of Work and Responsibilities� of Parties, N1r. Simpson desires to redirect an existing -eight (8) Inch pipe that functions as an underdrain to capture and transport underground water from- the hillside running along the southern property line. of Subject Property, which begins approximately two hundred fifty (250),feet west of the eastern property line, and that currently directs the captured water toward an existing pond (western pond on Subject Property). The terminus point of the pipe. referenced herein was _located and installed pursuant to direction of the City ; however, the parties. dispute whether Nir, Simpson agreed to the same, and. Mr. Simpson is of the belief that the current end -- -point of the pipe is -causing the western'pond to overflow thereby causing flooding at or near the Subject Property. Mr. Simpson will cause the pipe to redirected by the company listed in paragraph two(2) below to a clutch located near Liberty Avenue. The redirecting ' of the pipe is solely Mt. Simpson"s decision, and 'Mr. Simpson received no advice or-xnput _ from any City employee, contractor,-or.repr sanative. - The .-existig eight ($)inch diameter PVP pipe, which was installed to capture water seeping from the ground during the Richmond Sanitary District'.s Southeast Basin Sanitary Relief Sewer, for which plans are dated April. 2, 2009, and constructed thereafter, as well as all new pip_ e or other drainage infrastructure installed shall be owned .and maintained by -tile property owner. The City and its Sanitary District will not direct or be a part of the pla rang, design; construction, maintenance, or any other aspect of the work associated v ith this Agreement and does not ' guarantee nor take. any re sp onsibl.lzty for results 'so ciated With such work. Every effort Wi11 be made try the ' prop erty. owner to install all -as Contract No. 151-2019 e drainage improvements outside of all -existing serer easements. Finally, the property - owner shall be responsible for obtaining all easements) required to install infx-astructure outside of his own property for the work conteinplated hereunda. All costs associated with easement acquisition shall be paid by t4e property owner. 2. Pa ments. Pro Lawn Care & Landscaping, LLC tendered the lowest most responsible and responsive quote to perform certain remedial work to the Subject Property to -address any flooding issues complained of by Mr. Simpson, which quote is "in the sum of $16,150.00. Mr. Simpson agrees to accept the foregoing quote in his personal capacity, with each party aekmwledging that City has no contractual relationship with Pro Lawn Care & Landscaping, LLC pursuant to the work associated with the Subject Property described herein. City agrees to- pay to Mi•.-Sfinpsoh one --half (1/2) of the above -referenced quote, which equates to $8,975.00 within thirty (30) days of the execution of this Agreement. Mr. Simpson agrees to -utilize these monies for -the purpose of hiring Pro Lawn Care & Landscaping, LLC to carry -out 'the work referenced herein. Mr. -Simpson agrees to be personally responsible for the remaining one-half (1/2) owed -Pro Lawn -Care & Landscaping, LLC; Any additional sum of monies requested by -Pro Lawn Care & Landscaping, LLC shall, be the sole responsibility of Mr. Simpson, and the City's obligation hereunder shall be terminated upon issuing to I\4r. Simpson a check for the sum referenced above. 3. Releases. Upon the delivery of payment under Paragraph two (2), Mr. Simpson, for himself and his heirs, executors, administrators, and assigns hereby fully and completely releases and forever discharges City and all of its departments, board, commissions, employees, .officers, contractors, directors, managers, agents, insures, assigns, parents, and -affiliates, which includes from any -and all known or unknown claims, demands, rights of action, damages, costs; loss of services, expenses (including attorneys' fees), or liabilities that arise aut of or relate to the facts, transactions, or occturences underlying any of the claims referenced herein, and specifically relating to any flooding, presence of surface or subsurface water whatsoever located at or near the Subject Property, which includes .groundwater springs, regardless of whether those claims were or could have been asserted prior to the execution of this Agreement. 4. Ton -Admission. The Parties acknowledge that this Agreement- represents a compromise and settlement of the disputed claims, and that the City denies any Liability to Mr. Simpson on all claims asserted. This Agreement should not be construed as an admission of "any liability or wrongdoing on the part of City. 5. No Third--Par(y Beneficiaries. The Parties agree that no provision of this Agreement is intended to establish any other person or entity as a third -party beneficiary except as stated explicitly herein or to authorize any non-party to this Agreement to maintain any action under its terms. Contract No.151-2019 ri ' S'. No ,Assignment or Transfer. The Parties hereto each warrant that they have net assigned or transferred to any person or entity the claims against each other that are released inthis Mutual Release -and that no athet•.person or entity holds any interest in, liens. on .or capacity to -sue over the subject matter of this Mutual Release. 7. Further Legal Action; Fee Shiftin . If either Party institutes any further legal or equitable action in arty state, federal, or local court or -tribunal and such action is -deterniined to be barred under Paragraph three (3) -of this Agreement, the Party so instituting such action shall be -liable for all attorneys' fees .and costs incurrc4 by 'the released party, as the case may be, in defending that action. Moreover, should Jitigation arise regarding any alleged breach of this Agreement, the prevailing party in such litigation shall be entitled to recover all reasonable costs and attorneys' fees incurred. 8. Seyerabilit. In the event that, any provIt ision of this Agreement is held invalid, the remainder of this Agreement .shall remain fully enforceable. No ruling or f nding that any term,or provision of this Agreement is invalid or unenforceable shall affect the validity or enfol ceabxlity of the rerna ping texxns and provisions hereof or the validity or' enforceability of the offending -term or p�•ovision' in any other -Jurisdiction. 9. Ne otiation & Joint Drafting. The Parties acknowledge and agree -that this Agreement is the result of negotiations between them and that no party shall be deemed the drafter of this. Agreement.. The -'language of this: Agreement shall in all cases: be construed according to its fair meaning, not strictly for or against any Party. 10.Voluntary Execution. Each Party aclmowledges that it has: voluntarily t executed this Agreement after having an opportunity to (1) read and carefully study the entite Agreement. and 2 consult with counsel. if so inclined. Each Party further acknowledges that it enters into this Agreement of its own free will and volition. ' 11. uthori Signature. The Patties represent and wm-rant to each other that the person executing this Agreement on its/his behalf has authority to do so. 12. AD ableLaw and. Forum Selectiom. This Agreement shall be construed in r accordance with the lames of the State of Indiana. The Parries agree that any action brought to enforce any te1Tri or terms of this Agreement shall be b1•ought and exclusively ,maintained in the. atato courts situated in.Indiana. 13. Execution and DelThis Agreement may be executed by facsimile signature and in any number : of counterparts, each of which will be deemed an original documents, but all of which will constitute a 'single documents; provided, however, that this Agreement shall be binding on of constitute evidence of a contract between the. Parties until such time as a counterpart of this Agreement has been executed by all of the Pares co and a y thereof delivered via email or facsimile to each Patty or its counsel. r -P Contract No.151-2019 14, ENTIRE AGREEMENT. IT IS EXPRES SLY WARRANTED THAT THIS ,AGREEMENT CONS TIT UTES THE COMPLETE, AND FINAL AGREEMENT BETWEEN THE .PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES AND CANCELS ALL PRIOR. OR CONTEMPORANEOUS .AGREEMENTS, UNDERSTANDINGS, DISCUSSIONS, OR REPRESENTATIONS REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER ORAL OR WRITTEN. EACH PARTY REPRESENTS AND WARRANTS THAT NO P R.OMI S E OR INDUCEMENT NOT CONTAINED HEREIN HAS BEEN OFFERED TO IT, THAT THIS AGREEMENT IS EXECUTED WITHOUT RELIANCE UPON ANY STATEMENT OR REPRESENTATION NOT EXPLICITLY SET FORTH HEREIN, AND THAT IT HAS HAD THE OPPORTUNITY, IF $O INCLINED, TO SEED THE ADVICE OF AN ATTORNEY REGARDING THE MEANING AND LEGAL EFFECT OF ALL CONDITIONS AND TERMS CONTAINED IN THIS AGREEMENT, INCLUDING- THIS SECTION. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED, NOR ANY OF ITS TERMS WAITED, EXCEPT BY WRITTEN INSTRUMENTS SIGNED BY EACH OF THE PARTIES This Release and. Settlement Agreement is approved. "CITY" City -of Richmond, Indiana by and through its Board of Sanitary Commissioners ame Name Dated: 13' f[ APPROVED: `- DavtifM. Sn -, May "PROPERTY OWNER" LLP 5" Harold Simpson Dated: ?::Ai''/ r Contract No. l S1-2019