HomeMy WebLinkAbout1998-02-23 98-125 ORDERCOUNCIL ACTION
Item No. 98-125
Date February 23 1995
Item/Subject: Authorizing Settlement of City Claims in City of
Bangor v Leo A Daly Comonnv, BIA Terminal Building Design
Contract
Responsible Department: Legal
The attached Order would authorize the execution and delivery of
settlement documents in City of Bangor v Leo A Daly Company,
docket no. 96-0116-8, now pending in the U.S. District Court for
the District of Maine. This is a three-way settlement between the
City of Bangor, Leo A. Daly Company, and the Ames Corporation. The
settlement will release all claims of the parties arising out of a
1990 design contract between the City of Bangor and Leo A. Daly
Company, for design and engineering services in connection with the
City's BIA terminal building expansion project. The pending U.S.
District Court case, a pending arbitration case, and the related
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City Manager
Departure
Ad
FinanceDirector
Legal Approval: p -
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Ames Corfarchian as a ryarf7 'b the sedkaw ---�.
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Int roapcyda For gYedta ,a a r, yavi Wpb ✓a s aid
Passage PpjPr fo '�jw d'1 $'48 VPrslo
First Reading
Referral Page —1— of
a��
City Manager
Associated
Information:
Release
and
Settlement Agreement
FinanceDirector
Legal Approval: p -
A Pinel Ve/Sron SPtIIeMnf- 99K+MF4} a
cyan r+ai✓ed via �W clap,( a-B-�'8. The A���verslvn aide S
Ames Corfarchian as a ryarf7 'b the sedkaw ---�.
'_T0 tf a l are kofl Ig- >n i lef/Pr- /✓ o
Salm Amariia� da{eal a'/$'4$ wJ�irh � HOJ< city solicitor
Int roapcyda For gYedta ,a a r, yavi Wpb ✓a s aid
Passage PpjPr fo '�jw d'1 $'48 VPrslo
First Reading
Referral Page —1— of
98-125
Awiptd to Counetor Tyler February 23, 1998
CITY OF BANGOR
Authorizing Settlement of City Claims in City
(TITLE.) (Orta ............. ......... ...._.. .......... ...._
Bangor v. Leo A. Daly Company, BIA Terminal
Building Design Contract
BY dw CRY CmouiI of Ua City of Bator.
ORDERED.
TUT the City Manager is hereby authorized, on behalf of
the City of Bangor, to execute a 'Release and Settlement Agreement"
settling the claims of all parties in City of Bangor V. Leo A. Daly
Company, docket no. 96-0116-B, now pending in the United States
District Court for the District of Maine, including the related
claims of all parties and a pending arbitration case, as set out in
the Release and Settlement Agreement. A copy of the "Release and
Settlement Agreement" is attached to this Order and is incorporated
herein by reference.
The City Manager is further authorized to execute and deliver
any ancillary documents necessary to finalize the settlement of
docket no. 96-0116-B. All such ancillary documents shall be in a
form approved by the City Solicitor.
IN CITY COUNCIL
February 28, 1998.
Passed
CITY CLERK
98-125
ORDER
Titley Authorizing Settlement of City
Claims in CitY of Barter v. Leo A. Daly
COm2.n . BIA Termlml Building DealBu
Contract " "
........................
Asupted to
98-125
RELEASE AND SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT (hereinafter referred to m "the
Agreement') is watered into this day of February, took by and among the City of Bangor,a
municipal commotion, organized order the laws of the State of Maine, with its place of business
in Bought, County of Penobscot; State ofMamo ("City"), Leo A. Daly, a Nebraska cmpomtion
with its principal place of business in Omaha, Nebraska ('Daly') and The Ames Corporation, a
Maine corporation with a principal plane of business in Bmgor, Maine ("Arra').
WHEREAS, the City entered into a certain design services contract with Daly dated
November 13, 1990, as amended for architectural and engineering service to renovate and
expand the Bangor International Airport (me "Design Agreement'), and Daly and Ames entered
into a subconsuldhig agreement related thereto dated November 14, 1990 (the "Subcoruuiong
Agreement').
WHEREAS, the City subsequently entered into a cmuhuction contract with Wolf
Construction Corporation dated October 10, 1991 to perWna construction work at said airport
based on the designs provided by Daly order the Design Agreement (the "Contraction
Contract') and subsequently entered into a construction administrative services agreement dated
December , 1991 with Ames to perform additional construction administration services in
connection with the work being performed under the Construction Contract (the "Supplemental
Agreement').
WHEREAS, terrain disputes arose among the parries concerning the peribnumce of each
under the Design Agreement, the Subconsulting Agreement, and the Supplemental Agreement
and the City filed a Complaint in the U.S. District Court, District of Maine under Docket No.
9S -O116 -B (the "Court Action') and a Demand for Arbitration with the American Arbitration
Association designated as case No. I IYI 1000299-96(me "Arbitration Action) seeking
damages for losses allegedly sustained by the City.
WHEREAS, Daly filed a counterclaim in these actions seeking compensation for its wank
and Ames filed a related lien action in the Superior Count for Penobscot County which such
action has been dismissed with prejudice and without costs.
WHEREAS, Daly and Ames have denied all claims and allegations asserted by the City
for prof sioml negligence, breach of contract, breach of warranty and indemrdty, but wish to
' made their differences without further litigation and to buy their peace with me and hotadiug
that nothing contained herein shall be construed as an admission of wrongdoing or liability by
Daly and/or Areas.
NOW, THEREFORE, the parties hereby agree as follows:
1. Subject Matter. The subject matter of this Agreement is the settlement and
release of all claims which any of me parties now has or at my time in the dome may have
98-125
against the other, their resPOelve officers, employees, agents, consultants, and arms and
omissions assurance tamers for economic harm (as opposed to personal injury or property
damages claims) related to or arising out of conduct or work performed under or in connection
with the: (i) the Design Contract; (ii) the Subconsulting Agreement; (ii) the Supplemental
Agreement; and (iv) the Construction Contract. More specifically and without limitation, this
Agreement extends in and addresses all claims and allegations ad forth by the parties in the
complaint, answer and counterclaim in the Cour[ Action, the Demand for Animation filed in the
Arbitration Action and all responses thereto and/or all claims which could have been asserted In
either [Iran or in the future.
2. payment In consideration of the cavernous and agreements contained in this
Agreement Daly agrees to pay in the City the sum of $965,000.00 simWtnneously with the
execation all delivery of this Agreement As fuller consideration for this agreement Daly and
Ames hereby release, discharge and forgive all claims for fees related to or arising out of the
Design Contract, the Supplemental Agreement; and the SubcooaWeng Agreement.
3. Release. Inconsideration ofthe covenants and agreements contained herein the
parties hereby release, acquit and forever discharge each other, their respective officers,
employees, consultants, employees, agents, eros and omissions carriers, successors and assigns
of my from any and all claims, demands, rights and causes of action of whatsoever land or
nsnne, arising from or related to the the subject matter of this agreement as described in
Paragraph 1 above, the Court Action, and the Arbitration Action which such actions the parties
agree to cause to be dismissed with prejudice and without wars..
4. Miscellaneous. The parties agree that they will file the applicable documents
withthe United Stores District Ccurt and the American Arbitration Association Each parry
represents that the signatory in tits document will he duly authorized to execute this agreement
and that each signatory will fully review.the agreement and the signatures shall reflect the
understanding that this agreement is flue final compromise and settlement for all losses and
claims. All agreements and understandings between the parties areembodied herein and the
terms of this Release are contractual and net amere recital.
THIS IS A FULL AND FINAL RELEASE OF ALL CLAIMS AND MUST BE
CAREFULLY READ AND FULLY UNDERSTOOD BEFORE SIGNING. BY EXECUTING
THIS RELEASE EACH PARTY ACKNOWLEDGES THAT IT HAS CAREFULLY READ
AND FULLY UNDERSTANDS ALL OF ITS PROVISIONS.
2.
98-125
M WITNESS WHEREOF, the Parties have caused this instrument to be sealed with its
corporate seal and signed in its corporate nmae by their duly authorized representatives as of the
data fust above written.
TILE CITY OF BANGOR
By:
Witness Its
Thereunto Duly Authorized City Manager
STATE OF MAINE 1998
W.
Personally appeared the above-named inhis
capacity as City Manager for the City of Bangor, Maine and aware that he is the duty authorizes
representative of the said City and that he is authorized and empowered to execute this Release
and Indemnity Agrameat on behalf of said City and that the foregoing Gashument is his flee act
and dced and the free act and deed of the said City of Bangor.
Witness
Notary Public
I.EO A. DA Y, INC.
By:
Sam Condit, AIA, Lm A. Daly
Its Vice President
Thereunto Duly Authorized
District of Columbia 1998
as.
Personally appeared the above -names Sam Condit in his capacity as Vice President of
leo A. Only and swore that he is the duly authorized representative of the said corporation and
BE
98-125
that he is authorized and empowered w execute flus Release and Indemnity Agreement on behalf
of Leo A. Daly and tlsat the fomgoing instrument is his free act and deed and the free act and
deed of Leo A. Daly.
State of Maine
M
Notary Public
TBE AMPS CORPORATION
By:
Brian Ames
Ifs President
Thereunto Duly Authorized
.1998
Personally appeared the above-named Brian Ames in las capacity as Jhendent of The
Ames Corporation and swore that he is the duly authorzed representative of the said corpomtlon
and Naz he is authorized and empowered to execute this Release and Settlement Agrennent an
behalf ofne Ames Corpomtian and that the foregoing near ment is his free act mM deed and
the free act and deed of The Ames Corporation.
Not ry
ce
98-125
RELEASE AND sE1TLEMINT AGREEMENT
THIS RELEASE AND SEMEMENT AGREEMENT (heteinaffvmferied in as'fbe
Ageemmr") is entered into this day ofFebsuary. 1998 between the City ofDanger, a
manicipal.rponown otgaviud mderwelews of We Sty MahsD 9�a Nebraska business
in Bangor, County efPmobseat, SteteofMaine ("City")
.[potationwillsitsprincipal Plateofbusinessin Om"Nebraska('Daly")t
WHEREAS, the Citymte dintoacertaindesipservicescmbaawith Dalydated
November 11,1990, in amendedfor architocaual and engineering writes on renovate and
expand the Bangor international Airport (the "Design Ageernenf" );
WHEREAS. We City subs erumrly entered into a.mbuctionmorict with Wolf
Construction Corporafion dated October 10, 1991 in perform.mmscuov wink alaaid airport
based on We design provided by Daly under the Ee dicer Ageamm[ (the"Construction
Cont act'T:
WHEREAS, certain disputes arose among the parties.nemdng the Perfomsnce of each
ander the Design Agreement and the City filed a Complaint in the V.S. Disbia Coutt District
of Maine under Dv kMNo. 954116-B (the'Court Action') andaDmsend for Arbitration with
ted American Arbitration Associafimdesigu mcmc No. IIYl 1000299-96(the
"Arbitration Acdm'l seea'ng Chanteuse for losses allegedly swastinedby the City;
WHEREAS, Daly filed a wumaaeim in Wase actions seeking compctuaim for he
work; and
WHEREAS, Daly and Areas have denied all chins and allcpfi m asserted by the City
for professional rrcgligence, breech of.nbaot. breach of warranty and infernally, but wish to
setae lick differences without Rather Iiri atim and to buy Weir peace with the understanding
that mthing contained herein shall he censured as an admission ofwrongdoing or liability by
DalyandlorAmes.
NOW, THEEEfORB, the parties hereby agree as fall)w[:
Subject Matter. Thesubjectma ncrofthis Agincourt is the settiment and
release of all claims wNch my of ihepartis m°' has m a any bora in the future may
have against the other, thebrespmhve offices, employees, agents, cronsulue"a and mora
and omissions ksmance terriers related m w arising out ofcoadua or wmkperfotmed
undermincommbmwith the Design Cmtraaand We Constiucfion Cont LMore
spmtifica7lY andwithoa Ervitatioq tbu Ageemmt mends m and addressee all cla®s
Court gatiom seteema by We Partiesio Weed in the Aamweaod.uvand all in tan
Covet Asim, We Demand for claims
which tiled intheAr which can or.ald have
reasonably been known by the parties.
98-125
]. Payment In consideratimofthe coveomts and agreement contained in this
Agreement, Daly agrees to pay m the qty she sum of8965,O -00 simdtaneouslY with
the exaulion and delivery of Us Agramcn. As farther considemhon fff this agreement
Daly and Ames hereby release, discharge and forgive all claims for fres related to or
arising out of the Design Corer c4 the Supplemental Agremem, and the Subcomaltieg
Agreenunt
Release recd Indemvifimtion.
(a) In consideration of the eccentric and agreements contained hmeiv the
parties hereby release, acquit and forever discharge each other, their respective officers,
employers, conschamx aubwraulmms, employees, agents, encrs and onumorta tarsiers.
sucaasoa and assigns ofany farm my and all clams, demands, rights all reuses of action of
wtataoever kind or mtase, arising from or related to the the subject matter of that agreement as
described m Paragraph 1 above, the Court Action, and the Arbitration Action which such actions
the panes agree to cause to be dismissed with prejudice and without costs.
(b) The parties Ruth" agree to bold each other bmmiess and to indemnify the
other of and from ary and all mune, causes of action, claims for damages, costs, contributio%
indemnification or my other action or action by my person or person, company, eerily or
corporation, which in mry way wise out o4 or which tale to the allegations Or claims sem fovh in
the Complaint in the Court Acton and the Demand and Counterclaim in the Arbitration Action
including all fund party =am, claims andaoas<lama, attorneys fees and expenses.
4. Satefaetionof All Lieax In corsideratonofthe payment as set forth above, the
City agrees to satisfy anyhets, subrogationmuaests manyoiber claims by any governmental re
regulatory bodywhich have been made orwhich say in the fait ebe made against this payment
ortheprojat
5. Miscellaneous. The parties agree that they will file the apphwble docs ora
with rbe United Sates District Coast and the Americans Arbitration Association. Eacb party
repreca ns that the signatoryon this document will be ddy submitted to execute this agreement
and that each signatory will fully review the agreement and the signatures shall reflect the
understanding that this agreement is the final cmnptomia and sentenced for an losses and
claims. Anagremwamdundmmndingsbetwemthepar6% mmbadiedbminmdshc
terms of this Release are commenced and not a more recital.
THIS IS A FULL AND FINAL RELEASE OF ALL CLAIMS AND MUST BE
CAREFULLY READ AND FULLY UNDERSTOOD BEFORE SIGNING. BY
EXECUTING THIS RELEASE EACH PARTY ACKNOWLEDGES THAT fT HAS
CAREFULLY READ AND FULLY UNDERSTANDS ALL OF ITS PROVISIONS.
98-135
IN and si edin as OP,theParfittb bytheir
representatives
with its
corporate seal asrd signed in its coapomrotame bYdtardulY authorized repmsenmvves as Of ft
date that above written-
THECITYOFBANOOR
Witness Its
Taeseumlo Duly Authorized City Manger
998
STATE OF MAINE
St.
Personally appeared Me abovo-nimed in his
capacity"City Manager for the City ofBmgor, Maine and mom that he is the duly authorized
representative ofthe said
t onbehWf £said Che is ity mdrhe the foorized �goiug ininevumemt is h s "Ons"
and deadnevdolioemem
and dxd aM the free att and dead oftha said CityofBaugor.
Witness
Notaryliablic
LEO A DALY, INC.
By.
Sam Coad-, ATA Leo A Daly
an Vice President
Taerewto D WY Aulaorized
Disltiutof Columba
998
as.
Personally appeared the ad,nemed Sam Condit in las capes y m Vice President Of
LeoA. Duty and wore that be is the duly authorized of of the said corporation n behalf
that he u authorized and empoweredw saxWe this Release and Inde eery Agmen
B '58
98-125
of Leo A Daly and Ral the foMoing ivshoment u hi, heo ac[ and deed and the bee aN and
deed of Leo A. Daly.
Notary Public
98-125
claims of all parties will be released as part of the settlement.
In return for its release, the City of Bangor will receive a total
payment of $965,000.00.
This claim has been pending in one form or another since
completion of the terminal building expansion project in 1993, and
has been reviewed extensively by the present and past City Councils
m executive session.
After outside attorneys fees and expenses, the City of Bangor
will net approximately $554,000 from the Settlement. Because the
City has prepaid all litigation expenses and a portion of the
attorneys fees, the actual check to be received by the City will be
approximately $882,000. The funds received from the settlement
will be paid into the City's Airport Fund, and will not affect the
City's general fund balance or tax rate.