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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 (cont'd on next page) a�� City Manager Departure Ad 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 $'48 VPrslo First Reading Referral Page —1— of a�� City Manager Associated Information: Release and Settlement Agreement FinanceDirector Legal Approval: p - A Pinel Ve/Sron SPtIIeMnf- 99K+MF4} a cyan r+ai✓ed via �W clap,( a-B-�'8. The A���verslvn aide S Ames Corfarchian as a ryarf7 'b the sedkaw ---�. '_T0 tf a l are kofl Ig- >n i lef/Pr- /✓ o Salm Amariia� da{eal a'/$'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.