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Home My WebLink About1998-04-13 98-166 RESOLVECOUNCIL ACTION Item No. 98-166 Date April 13, 1998 Item/Subject: Ratifying Execution of "Release and Settlement Agreement" with Leo A. Daly Company Responsible Department: Legal This Resolve would ratify the City's Manager's execution of a "Release and Settlement Agreement" with Leo A. Daly Company, to resolve City claims arising out of Daly's work as architect and construction contract administrator on the City's EIA terminal building expansion project. The agreement as executed contains a number of minor changes from the agreement previously approved by the City Council in C.O. 96-125. The sole substantive change is the addition of a reciprocal indemnification provision in paragraph 3(b). The changes in the final document were requested by Leo A. Daly Company, and were reviewed and. approved by the City Solicitor prior to execution by the City Manager. v v'�- '"1 ov^r"^MWI Depaxtr2 Manager's Comments: City Manager Associated Information: Resolve, Agreement Finance Director City So W. Introduced For CONSENT AGENDA x Passage First Reading Referral Page I of 7 98-166 Assigned to Councilor Leen April 13, 1998 CITY OF BANGOR (TITLE.) �RESDIUPr. Ratifying Execution of Release and Settlement _. ...... _._... ___...... Agreement" with Leo A. Daly Company By d w CRY cowne l Mike City of Bangor: RESOLVED. WHEREAS, the City Council, by Council Order 98-125 passed February 23, 1998, authorized the City Manager to execute and deliver a "Release and Settlement Agreement' to resolve .the pending claims of all parties in City of Bangor v. Leo A. Daly Company, U.S. District Court (Me.) docket no. 95-0116-B, and a related arbitration Case '(AAA Case n0. llY1-10- 00299-96); and WHEREAS, the final agreement as executed Contains several changes from the agreement approved in C.O. 98-125, NOW, THEREFORE, by the City Council of the City of Bangor, be it RESOLVED, THAT the action of the City Manager in executing and delivering a "Release and Settlement Agreement" dated March 30, 1998, with Leo A. Daly Company, is hereby ratified and confirmed. A COPY of the final agreement as executed is attached to this Resolve and is incorporated herein by reference. IN CITY COUNCIL F April 13, 1998 Passed 98-166 R E 5 0 L V E ITy cuu 1 Ratifying Exacutian of "Release and gettlemmt Agreement" with Leo A. Daly Company `9W Y)V ' w RELEASE and SETTLEMENT AGREEMENT THIS RELEASE AND SETTLEMENT AGREEMENT (hereinafter referred to as "the Agreement") is entered into between the City of Bangor, a municipal corporation, organized order the laws of the State of Maine, with its place of business in Bangor, County of Penobscot, State of Maine ("City') and Leo A. Daly Company, a Nebraska corporation with its principal place of business in Omaha, Nebraska, ('Daly") and its professional liability carrier, CNA Insurance. WHEREAS, the City entered into a certain design services contract with Daly dated November 13,1990, as amended for architectural and engineering services to renovate and expand the Bangor International Airport (the "Design Agreement'); WHEREAS, certain disputes arose among the parties concerning the performance of each under the Design Agreement and the City filed a Complaint in the U.S. District Court, District of Maine under Docket No. 95-0116-B (the "Court Action") and a Demand for Arbitration with the American Arbitration Association designated as Case No. 11 Y1 10 00299-96 (the "Arbitration Action") seeking damages for losses allegedly sustained by the City; WHEREAS, Daly filed a counterclaim in these serious seeking compensation for its wmk; and WHEREAS, Daly has denied all claims and allegations asserted by the City for professional negligence, breach of contract, breach ofwarranty and indemnity, but the parfies wish to settle their differences without further litigation and to buy their peace with the understanding that nothing contained herein shag be construed as an admission of wrongdoing or liability by Daly. NOW, THEREFORE, the parties agree as follows: 98-166 1. Subject Matter: The subject matter of this Agreement is the settlement and release of all claims which any of the parties now has or at any time in the future may have against the other, thein respective officers, employees, agents, consultants, and insurance carvers related to or arising out of professional services or work performed under or in connection with the Design Contract. More specifically and without limitation, this Agreement extends to and addresses all claims and allegations set forth by the parties in the complaint, answer and counterclaim in the Cour[ Action, the Demand for Arbitration filed in the Arbitration Action and all responses thereto and/or all claims which were known or which can m could have reasonably been known by the parties. 1 Payment. In consideration of the covenants and agreements contained in this Agreement, Daly agrees to pay to the City the sum of $965,000.00 As further consideration for this agreement Daly hereby releases and discharges all claims for fees related to or arising out of the Design Contract or its modification. 3. Release and Indemnity. (a) In consideration of the covenants and agreements contained herein the parties hereby release, acquit and forever discharge each other, thein respective officers, employees, consultants, subconsuhtants, employees, agents, errors and omissions carriers, successors and assigns of and from any and all claims, demands, rights and causes of action whatsoever kind or nature, arising from or related to 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 costs. (b) The parties harbor agree to hold each other homeless and to indemnify the other of and from any and all actions, causes of action, claims for damages, costs, contribution, indemnification or any other action or actions by any person or persons, company, entity or corporation, which in any way arise out of, or which relate W the Paye 2 of 5 98-166 allegations or claims set forth in the complaint in the Court Action and the Demand and Counterclaim in the Arbibation action including all drud party actions, claims and cross- claims, attorneys fees and expenses. 4. Satisfaction of All Liens. In consideration of the payment as set forth above the City agrees to satisfy my Gens, subrogation interests or any other claims by any governmental or regulatory body which have been made or which may in the future be made against this payment or the project. 5. Miscellaneous. The parties agree that they will file the applicable documents with the United States District Court and the American Arbitration Association. Each party represents that the signatory to this document will be 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 the final compromise and settlement for all losses and claims. All agreements and understandings between the parties are embodied basin and the terms of this Release are contractual and not a mem 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 THE RELEASOR ACKNOWLEDGES THAT IT HAS CAREFULLY READ AND FULLY UNDERSTANDS ALL OF ITS PROVISIONS. IN WITNESS WHEREOF, The Parties have caused this instrument to be sealed witb its corporate seal and signed in its corporate name by its duly authorized representatives as of the date above written. Pape 3 ors STATE OF MAINE QPndbxd} , as. 98-166 THE CITY OF BANGOR Ua(f 30 1998 Personally appeared the above-named Gdodgr>A . - OaOV l in his capacity as City Manager for the City of Bangor, Maine and swore that he is the duty authorized representative of the said City and that he is authorized and empowered to execute this Release and Indemnity Agreement on behalf of said City and that the foregoing instrument is his free act and deed and the free act and deed of the said City of Bangor. I � t Ir wAfthm, VA Page 4 af5 •� IUVTA Jerry Witness Jerry . Noms Its Secretary Thereunto Duly Authorized State of Nebraska County of Douglas, as. March 13, 1998 Personally appeared the above-named Jerry L. Norris in his capacity as Secretary of Leo A. Daly Company and swore that he is the duly authorized representative of the said corporation and that he is authorized and empowered to execute this Release and Indemnity Agreement on behalf of Leo A. Daly Company and that the foregoing instrument is his free act and deed and the free act and deed of Leo A. Daly Company. u W� m�raauraanv pie�a000 WZC- rogss.zao Public Page 5 of 5