2022-08-30-AGENDA- SPECIAL - Laserfiche WebLink

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SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE is made and entered into by and between Memphis Pool Supply, Inc. (hereinafter referred to as "Memphis Pool" and the City of Batesville, Arkansas (hereinafter referred to as "Batesville"), WITNESSETH: WHEREAS, that Memphis Pool constructed the outdoor pool (hereinafter "Project") at the Batesville Community Center located at 1420 201h St., Batesville, Arkansas between 2015 and June of 2017; WHEREAS, Batesville claims that there were certain alleged deficiencies in the construction of said outdoor pool at the Batesville Community Center (herein after "Claim"); WHEREAS, Memphis Pool denies that it has any liability whatsoever to Batesville; WHEREAS, Memphis Pool and the City of Batesville desire to settle fully and finally all differences between them arising from the "Claim." NOW, THEREFORE, in consideration of the premises and mutual promises herein contained, IT IS AGREED as follows: FIRST: Memphis Pool agrees to replaster said pool and repair cracks to the monolithic shotcrete shell of the pool as set forth in the Bluewater Pools proposal to Batesville (hereinafter "Repair Project"). Repairs to the cracks includes but is not limited to cutting a % inch wide and % inch deep around the cracked area, and filling said cuts with epoxy and replaster the entire pool as designated in the Bluewater Pools proposal. Memphis Pool agrees to complete the Repair Project commencing in the Fall of 2022, and that all construction for the Repair Project will be completed by May 1, 2023. In the event Batesville desires to retain an independent third party engineer or consultant to review the work of Memphis Pool on the Repair Project it shall be at Batesville's sole cost and expenses. Batesville agrees that it will pay to Memphis Pool the total amount of $81,322 dollars ($81,322.00) which represents half of Memphis Pool estimated costs to replaster the entire pool. Said funds shall be held in a designated escrow account prior to the beginning of the Repair Project , with funds being released by agreement of the parties but no later than 10 days after completion of the replaster work. The replaster work will be considered complete when the pool is coated and ready to accept water. Both parties agree to bear their respective costs and attorneys' fees in connection with the Project, the Claim and Repair Project. Memphis Pool will warrant all crack repairs and plaster finish for a period of 1 year from completion against defects in material and/or workmanship. Should any repaired areas fail within the warranty period, Memphis Pool will repair the defective area at no cost to Batesville. This warranty does not include or cover any damages to or the staining of the plaster surface due to negligence, improper water balance, or other causes outside of Memphis Pool's control. The warranty described herein will be void in the event that final payment for the Repair Project is not made by Batesville. Memphis Pool shall be entitled to prompt written notice from Batesville of any warranty claim and provided an opportunity to inspect such conditions. THIS LIMITED WARRANTY IS IN LIEU OF ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. This warranty excludes defects from damages incurred during the warranty period caused by abuse, neglect, improper or lack of maintenance, modification, or normal wear and tear. Further, in no event shall Memphis Pool be liable for any consequential, punitive, or exemplary damages of any type. SECOND: With the understanding that Batesville is a public entity that is subject to FOIA requests as well as other Arkansas laws regarding public oversight of municipalities, to the extent possible, the parties agree to keep the terms and substance of this Settlement Agreement and Release confidential and further agree that they will not disclose information concerning this Agreement nor any information obtained in the discovery process to any third party with the exception of their counsel, spouse and/or tax advisor, who shall be informed of this confidentiality requirement and required to abide by its terms, provided that the parties' confidentiality obligation shall not extend to the tax treatment or tax structure of the Settlement Amount, but the amount of such payment shall in any event remain confidential. In addition, each party agrees to