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Home My WebLink About2022-08-04-R RESOLUTION NOQ oW-0,f 0`f" -f-? A RESOLUTION AUTHORIZING THE MAYOR AND CITY ATTORNEY TO ENTER INTO A SETTLEMENT AGREEMENT WITH MEMPHIS POOL REGARDING THE REPAIR AND REPLASTERING OF THE OUTDOOR POOL AT THE BATESVILLE COMMUNITY CENTER; APPROPRIATING FUNDS; AND FOR OTHER PURPOSES. WHEREAS,there has been an issue of leaking at the outdoor pool at the Batesville Community Center; WHEREAS, Memphis Pool Supply, Inc. was the contractor who constructed the outdoor pool at the Batesville Community Center; and WHEREAS,the parties have negotiated in good faith to resolve issues regarding the construction of said pool, the City Attorney recommends acceptance of the settlement arrangement reached between the parties. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BATESVILLE, ARKANSAS: SECTION 1: That the Mayor and City Attorney are hereby authorized to enter into a settlement agreement on behalf of the City of Batesville, Arkansas (said agreement being substantially similar in form and content as Exhibit A attached hereto) with Memphis Pool Supply, Inc. SECTION 2: That the sum of$81,322 is hereby appropriated from the Batesville Community Center&Aquatics Park Perpetual Maintenance Fund to be distributed per the terms of the agreement attached hereto. SECTION 3: That this Resolution shall be in full force and effect from and after its passage and approval. PASSED AND APPROVED thisk`' day of August, 2022. Rick El r City of Batesville AT EST: Denise Johnston, Clerk City of Batesville 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 20"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 3/4 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 immediately cease and desist from making any disparaging remarks to third parties concerning the other party. Should either party breach the terms of this paragraph, then that party shall pay to the other party double the amount of the Settlement Amount as liquidated damages. THIRD: In consideration for Memphis Pool completing said Repair Project, Batesville hereby releases,acquits and forever discharges Memphis Pool from all claims,demands, loss of revenue, additional operating costs, costs and expenses (including but not limited to attorneys fees), damages, actions, and causes of action, whether in law or in equity, and whether known or unknown, suspected or unsuspected, related to or arising from the original construction of the Project and/or related to or arising from the Claim. FOURTH: This Settlement Agreement and Release shall not in any way be construed as an admission by Memphis Pool of any acts of wrongdoing whatsoever with respect to Batesville's claims and neither the existence of this Agreement nor the terms herein contained shall be used as an admission or evidence of wrongdoing by any party. FIFTH:This Settlement Agreement and Release sets forth the full and final agreement between the parties hereto and neither party is relying on any statement,representation or promise made by any party that is not specifically included herein. This Agreement may only be modified by a writing executed by both parties hereto. SIXTH: This Settlement Agreement and Release may be executed in any number of counterparts by original or electronic signature, and each such counterpart shall be considered an original, but all of which together shall constitute one and the same agreement and shall be fully effective against all persons executing it. SEVENTH: This Settlement Agreement shall be governed by the laws and jurisdiction of the State of Arkansas with venue being in Independence County,Arkansas. THIS SETTLEMENT AGREEMENT AND RELEASE INCLUDES A RELEASE OF CLAIMS. Executed this day of 12022. Mark Reed President, Memphis Pool Supply, Inc. JOSEPH T. GETZ Attorney for Memphis Pool Supply, Inc. RICK ELU BAUGH Mayor of the City of Batesvil 7,Arkansas TIMOTHY MEITZEN Attorney for City of Batesville,Arkansas