HomeMy WebLinkAbout1998-03-23 98-156 ORDER98-156
COUNCIL ACTION
Item No.
Date March 23, 1998
Item/Subject Authorizing Settlement of Claims of Coleman
COnstruCtion Company, Inc. -- Wastewater Secondary Treatment
Plant Project
Responsible Department: Legal
Commentary:
This Order would authorize settlement of the last of a number of
claims that arose out of construction of the City's wastewater
secondary treatment plant project in 1991-1993. In this instance,
the claims being settled are those of Coleman Construction Company,
the excavation subcontractor on the project. Coleman was impacted
by the late relocation of the Mobil pipeline on the project site,
and received additional payments on its subcontract during project
construction. Coleman also submitted a claim for $497,394 in
additional costa, due to impacts of the Mobil pipeline. The City
has previously paid $49,500 toward portions of Coleman's claim.
This Order would authorize an additional payment of $75,000 to
extinguish all remaining claims.
(cont'd on next page) /�� /y���-
WY Iw
Department Head
Manager's Comments: rl A _
Cls.BlMru.frd a0F)1pIEv¢tC
City Manager
Associated Information: Order, Settlement Agreement, Releases
Budget
Legal Approval:
9 �i. w,�
City Solicc itor
Passage
First Reading
Referral Page I of�1
98-156
Aui�ed to Counciloe Tyler March 23. 1998
�/pp CITY OF BANGOR
aiuv 181TiCX Authorizing Settlement of.. Claims of Coleman
Construction Company, Inc. -- wastewater secondary Treatment
By tae C5h Cou"44 of Ne CSM of Be --
ORDERED,
TUT the City Manager and City Solicitor are hereby
authorized to settle the claims of Coleman Construction, Inc.,
arising out of construction of the City's wastewater secondary
treatment plant project, for $75,000.00, and to execute all
settlement documents necessary for that purpose.
Settlement documents shall be in a form sub-
stantially similar to the forms attached to this order, and any
changes shall be approved by the City Solicitor prior to execution.
IN CITY COUNCIL "
March 23, 1998
Passed
c d
IT CLE3K
98-156
0RDEA
Title, Authorizing Settlement of Claims
of Coleman Construction Company. Inc. -
Wastevatei SecoMaiy Tieatmen[ Plan[ Project
......................................
Q.
Assigned to
......... SOI .�I.a.
�U Councilnn .
Exhibit A
To all whom these presents shall come or may concern,
Greeting:
Know Ye that CITY OF BANGOR, MAINE
(hereinafter 'Releasor'), for consideration paid, on its own
behalf, has remised, released and forever discharged and by these
presents does for its officers, employees, administrators,
successors and assigns remise, release and forever discharge
FIRST ESSEX BANK. PELEAM RANR R TRUST COIFANY
and COLEMAN CONSTRUCTION COMPANY
(hereinafter collectively °Releasee'), their officers, employees,
administrators, successors and assigns, of and from any and all
manner of action and actions, cause and causes of action, suits,
damages, judgments, executions, claims and demands whatsoever, in
law or in equity, which Releasor ever had, now has or which its
administrators, successors or assigns hereafter can, shall, or may
have against Releasee for, upon, or by reason of, construction of
a wastewater secondary treatment facility in Bangor, Maine, during
the years 1991-1993, this Release to include without limitation all
contractual claims and warranty claims arising out of said
construction.
IN WITNESS WHEREOF, the City of Bangor has caused this
instrument to be sealed with its corporate seal, and signed in its
corporate name by Edward A. Barrett, City Manager, thereunto duly
authorized, this _ day of March, 1998.
CITY OF BANGOR
(By)
Its City Manager
STATE OF MAINE
PENOBSCOT, as.
Then personally appeared the above-named EDWARD A. BARNETT,
City Manager, and acknowledged the foregoing instrument to be his
free act and deed in his said capacity, and the free act and deed
of said body corporate.
Justice of the Peace/Notary Public
Exhibit B
W
98-156
To all whom these presents shall come or may concern,
Greeting:
Know Ye that FIRST ESSEX BANK
(hereinafter collectively "Releasor-), for consideration paid, on
its own behalf and on behalf of PELHAM BANK k TRUST CO. and COLEMAN
CONSTRUCTION COMPANY, has remised, released and forever discharged
and by these presents does for Releasor's officers, employees,
administrators, successors and assigns remise, release and forever
discharge
[4 y Y't]:i'S Ko) -M RAGA
(hereinafter -Releasee'), its officers, employees, administra-
tors,and assigns, of and from any and all manner of
actions and actions, cause and causes of action, suits, damages,
judgments, executions, claims and demands Whatsoever, in law or in
equity, which Nelessor ever had, now has or which its
administrators, successors or assigns hereafter can, shall, or may
have against Releasee for, upon, or by reason of, construction of
a wastewater secondary treatment facility in Bangor, Maine, during
the years 1991-1993, this Release to include without limitation all
contractual claims, nonpayment claims, mechanics lien claims, and
claims for additional compensation arising out Of said
construction.
IN WITNESS WHEREOF, the First Essex Rank has Caused this
instrument to be sealed with its corporate seal, and signed in its
corporate name by I , thereunto
duly authorized, this _ day of March, 1998.
FIRST ESSEX BANK
(BY)
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ESSEX
Subscribed and sworn to before me, the undersigned officer,
this day of March, 1998, by who made oath
that the statements herein contained are true.
Justice OI the Peace/Notary Public
98-156
in default of its payment obligations under this Compromise and
Settlement Agreement, and the Bank at any time thereafter may, but
shall not be obligated to, bring an action for breach and seek all
amounts due under this Compromise and Settlement Agreement together
with interest at the per diem rate of $20.55 (102 APR), or
alternatively, at its option, treat the City's obligations as they
existed prior to execution of this Agreement as still in affect in
all respects and pursue the Arbitration or institute new litigation
to enforce same.
J. Releases. Upon receipt by the City of Final Payment, the
parties shall execute general releases in the form appended as
Exhibits A and B hereto, each of which shall be held in escrow by
opposing counsel for the party signing each release, to be
delivered to the attorney for the party to be released thereafter.
Actual delivery of such releases to the attorney for the party to
be released shall be a condition precedent to their effectiveness.
6. Attorneys Pees for Breach. Since freedom from damages and
costs of future litigation, except as herein provided, represents
an important item of consideration bargained for by the parties to
this Compromise and Settlement Agreement, it is agreed that damages
recoverable for breach of this Compromise and Settlement Agreement
by any party shall include reasonable attorney's fees and other
costs as a consequence of such breach.
5. No Admission of Liability. The parties understand and
agree that this Compromise and Settlement Agreement is a compromise
of disputed claims and that the terms set forth herein are not to
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98-156
be construed as an admission of liability on the part of the City.
This Agreement shall in no event be construed or be deemed to be
evidence or an admission or a concession on the part of any Party
with respect to any claim or cause of action, defense, or any
liability for damages in the Arbitration or any subsequent
litigation. The Parties are entering into this Agreement in order
to avoid further expense, inconvenience and delay, and to dispose
of potentially expensive, burdensome and protracted arbitration.
This Agreement, and any proceedings taken pursuant to this
Agreement, are not and shall not in any event be:
(a) Construed as or deemed to be evidence of a
presumption, concession oran admission by any of the Parties
of the truth of any fact alleged or the validity of any claim
or cause of action which has or could have been asserted in
the Litigation, or the deficiency of any defense which has or
could have been asserted in the Arbitration) or
(b) Construed by anyone for any purpose whatsoever as a
presumption, concession or an admission of any infirmity in a
claim, liability, fault, defense or otherwise on the part of
any of the Parties) or
(c) Construed as an admission or concession by anyone
that the consideration to be given hereunder represents the
amount which could be or would have been recovered after trial
of any of the claims settled hereby.
6. Succeaeora and Transferees. All covenants, promises and
agreements of each of the parties contained herein shall be binding
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98-156
upon and inure to the benefit of their respective successors,
transferees and assigns, immediate and remote. This agreement may
not be assigned, either as to obligations, or benefits without the
express written consent of the non -assigning party.
7. Intearation. This Compromise and Settlement Agreement and
the Releases contemplated hereunder constitute a complete and
integrated statement of the terms of the agreement between the
Parties, and no Party has made any promise to any other Party which
is not contained therein.
S. Notices. Any notice which is permitted or compelled under
the terms of this compromise and Settlement Agreement shall be
given by certified mail, return receipt requested, to the following
persons, or to such other persons as may subsequently be specified
by certified mail, return receipt requested, by the party entitled
or required to receive the notice:
A. On behalf of the Bank:
Frank P. Spinella, Jr., Esquire
Hall, Norse, Anderson, Miller a Spinella, P.C.
14 Centre Street
P. O. Box 2289
Concord, MH 01102-2289
B. On behalf of the City:
Erik M. Stumpfel, City Solicitor
City of Bangor
71 Harlow Street
Bangor, ME 04401
9. survival. The obligations of the Parties as set forth in
this compromise and Settlement Agreement shall survive the exchange
of any settlement proceeds and the execution and delivery of any
settlement documents.
10. No Waiver. Neither this document, nor any provision
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98-156
thereof, may be changed, waived, terminated or discharged orally,
or by failure to protest, laches, silence or otherwise, but only by
an instrument in writing signed by the party or parties against
whom enforcement of that change, waiver, termination or discharge
is sought.
11. Governina Law.
This Compromise and Settlement Agreement
shall be conatruedin accordance with and governed by the
substantive law of the State of Maine without regard to principles
of conflicts of laws.
12. Venue for Resolving DisbuteS. In the event that a dispute
arises between the Parties under this Compromise and Settlement
Agreement, it is hereby agreed that such dispute may be litigated
in any state or federal court of competent jurisdiction within the
State of Maine. -
13. No Reliance on Representations. The Parties acknowledge
that in entering into this Compromise and Settlement Agreement,
neither Party has relied on any statements or representations made
by the other Party not contained herein.
14. Severability. If any provision of this compromise and
Settlement Agreement is held unenforceable for any reason, it is
the intent of the Parties hereto that the balance of the terms and
provisions hereof shall remain enforceable.
IN WITNESS WREREOP, the Parties have set their hands this
day of March, 1998.
FIRST ESSEX BANE
By: 6nR s
Its Attorn duly thorised
CITY OF SANGOR, MAINE
Ey:
Its duly authorized
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98-156
ul• � - M _vl"�
FIRST ESSEX BAMS ("the Bank"), a Massachusetts banking
corporation having a principal place of business in Lawrence, MA,
and City of Bangor ("the City"), a municipality of the State of
Maine, hereby stipulate and agree as follows:
WHEREAS, the Bank has succeeded to the assets of Pelham Sank
& Trust Co., including a certain claim of Coleman Construction
Company, Inc. ("Coleman") of Pelham, NH, against the City arising
out of certain work performed by Coleman as a subcontractor on the
City of Bangor Primary Wastewater Treatment Plant Upgrade Project
("the Claim"), which Claim had been assigned by Coleman to Pelham
Bank & Trust Co. by Assignment dated March 30, 1993; and
WBRREAB, by agreement dated July 29, 1994, between said Pelham
Bank & Trust Co. and the City, the Claim was subjected to private
arbitration ("the Arbitration") for the purpose of collecting any
outstanding indebtedness of the City to Coleman Construction Co.,
or its successors or assigns) and
WHEREAS, the parties desire to settle the Claim and all
indebtedness, obligations and claims which have been asserted, or
which could have been asserted, in the Arbitration;
NOW THEREFORE, the parties stipulate and agree as follows:
1. Payments, The City shall pay the Bank a total of seventy
Five Thousand Dollars ($75,000.00) on or before March 24, 1998, by
Beer Check in that amount payable to "Hall, Morse, Anderson, Miller
& Spinella, P.C." as trustee for the Bank.
2. Default. In the event that the Payment has not been
received on or before March 26, 1996, the City shall be considered
98-156
Coleman's original claim was assigned to Pelham Bank 6 Trust
Company of Pelham, New Hampshire. Pelham Bank later was acquired
by First Essex Bank of Lawrence, Massachusetts. The assignment of
the claim by Coleman to its bank accounts in part for the delay in
reaching a final resolution.
An arbitration hearing finally had been scheduled for April 7-10,
1998. The proposed settlement will avoid the expense of arbi-
tration for both sides, and will avoid the risk of an adverse
award. under our arbitration agreement, the City could have been
subject to an award of up to $215,000.