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Aerial Services Inc Settlement AgreementTHE CTTY OF Dubuque DUB E ~~~a~~ i ~ Masterpiece on the Mississippi 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Settlement Agreement and General Release -Aerial Services, Inc. DATE: August 12, 2008 GIS Coordinator/Analyst Nikki Breitsprecker is recommending acceptance of a $52,844 payment from Aerial Services, Inc. and approval of the Settlement Agreement related to the 2007 Orthophotography and Mapping Project. I concur with the recommendation and respectfully request Mayor and City Council approval. ~/ Mic ael C. Van Milligen MCVM/Iw Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Nikki Breitsprecker, GIS Coordinator/Analyst THE CITY OF Dubuq'u~e AB-AmericeCity DUB E Masterpiece on the Mississippi 2007 TO: Mike Van Milligen, City Manager FROM: Nikki Breitsprecker, GIS Coordinator/Analyst SUBJECT: Settlement Agreement and General Release -Aerial Services, Inc. DATE: August 11, 2008 BACKGROUND In June 2008, Assistant City Attorney Tim O'Brien created a Settlement Agreement and General Release to be sent to Aerial Services, Inc. (ASI) for the settlement of the 2007 Orthophotography and Mapping Project. As a part of this agreement, ASI agreed to give all data from the original project to the City in as-is condition, and to refund the City an amount of $52,844. DISCUSSION The City received a check for the amount of $52,844 from ASI on July 24, 2008. That same day, the City received two DVDs containing the remainder of the as-is data we received as a part of this project. Because we have received all that was required as a part of the settlement, the agreement may now be signed by the City Manager and a copy may be returned to ASI. This action will complete the project. ACTION ITEM respectfully request the City Manager to sign the attached Settlement Agreement and General Release for the 2007 Aerial Orthophotography and Mapping Project. CC: Public Information Officer Randy Gehl Information Services Manager Chris Kohlmann Assistant City Attorney Tim O'Brien Att: Settlement Agreement and General Release SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release is made and entered into this 5 day of June, 2008 (the Signing Date) by and between the City of Dubuque (City), by its City Manager, and Aerial Services, Inc.(ASI). Whereas, City and ASI entered into a contract entitled "2007 Professional Photogrammetric Services covering City of Dubuque" dated March 8, 2007(Services Agreement); and Whereas, City and ASI desire to enter into an agreement with respect to the termination of the Services Agreement, which constitutes the good faith settlement of any and all claims either may have against the other. NOW THEREFORE, in consideration of the premises and mutual promises contained herein, it is hereby agreed as follows: 1. No Admission Of Liability. This Settlement Agreement and General Release is not and shall not in any way be construed as an admission by either ASI or the City, or any of the City's the City's City Council members, officers, agents, employees, insurers or representatives, of any acts of any type that would constitute any type of civil liability, including but not limited to any claims of violations of federal, state, or local law. This agreement constitutes the good faith settlement of disputed claims, and City specifically disclaims any liability to ASI or any other person, on the part of itself, its City Council members, officers, agents, employees, insurers or representatives. The parties have entered into this Settlement Agreement and General Release for the sole purpose of resolving any and all claims to avoid the burden, expense, delay and uncertainties of any potential litigation. 2. Full and Comprehensive Release. Both parties hereby irrevocably and unconditionally release, remise and forever discharge each other including the City Council, agents, officers, employees, representative, attorneys, insurers and all persons acting by, through, under or in concert with any of them, of and from any and all actions, causes of action, suits, complaints, claims, liabilities, promises, damages, expenses, including attorneys fees and costs, of any -nature whatsoever, in law or equity, which either party ever had, now has, or may have, particularly against each and any of the persons being released, to the date of this Settlement Agreement and General Release 3. Delivery of Work Product ASI agrees to deliver to City contemporaneously with the execution of this Settlement Agreement and Release, the following Services Agreement work in progress, as is: a. Topographic Mapping-approximate LAMAS 4.0'. b. DTM as DWG c. 2' Contours to approximate 4.0' LAMAS City agrees to accept the work product previously delivered by ASI to City under the Services Agreement, as is, as delivered. 4. Refund. ASI agrees to pay to City contemporaneously with the execution of this Settlement Agreement and Release, the sum of $ 52,844.00 representing a portion of the. money previously paid to ASI by the City under the Services Agreement. 5. Voluntary Agreement. ASI represents and certifies that this Settlement Agreement and Release has been carefully read by ASI and that ASI fully understands all of the provisions and effects of the Settlement Agreement and General Release, has thoroughly discussed the matter with its attorney and is voluntarily entering into this Settlement Agreement and General Release, and that neither City, nor its agents, representatives or attorneys have made any other representations concerning the terms or effects of this Settlement Agreement and General Release other than those contained herein. 6. Extinguishment Of All Claims, Known Or Unknown. Both parties expressly acknowledge that this Settlement Agreement and General Release is intended to include in its effect, without limitation, all claims which have arisen and of which either of them knows or does not know, should have known, had reason to know, or suspects to exist in favor of that party, at the time of execution hereof, and that this Settlement Agreement and General Release contemplates extinguishment of any such claim or claims. 7. Iowa Law Governs. This Settlement Agreement and General Release is made and entered into in the State of Iowa -and shall in all respects be interpreted, enforced and governed under the laws of Iowa. The language of all parts of this Settlement Agreement and General Release in all cases shall be construed as a whole, according to its fair meaning, but not strictly for or against either of the parties. 8. Severability. Should any provision of this Settlement Agreement and General Release be declared and determined by any. court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be effected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Settlement Agreement and General Release. 2 9. Entire Agreement This Settlement Agreement and General Release sets forth the entire Agreement between the parties hereto and fully supercedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof. PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In witness whereof and intended to be legally bound hereby, ASI and the City have executed the foregoing Settlement Agreement and General Release. Aerial Services, Inc. Signing Date 8 Jun 08 By: Mike Tully, President & CEO City of Dubuque, Iowa by: Michael C. Van Milligen, City Manager 3