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Home My WebLink About1995-03-15 95-132 RESOLVECOUNCIL ACTION Item NO. qq-1 12 Date March 15. 1995 Item/Subject: Resolve, Ratifying Execution of Release Documents -- Wastewater Treatment Plant Project Responsible Department: Legal Council Order #95-82 passed by the City Council on January 23, 1995 authorized the City Manager, on behalf of the City of Bangor, to execute all releasee and other documents necessary to accept settlement of claims against Harvey Construction Company and Connecticut Indemnity Company,as performance bond surety for The Holden Company, arising out of the late completion of the Wastewater Treatment Plant project. Subsequent to passage of C.O. #95-52, several releases have been reviewed by me and signed by the City Manager. This resolve would ratify execution and delivery of those releases. V1, ' i Department Hea Manager's Comments: z ( qty eM ,J, � � "tas City Manager Associated Information: Resolve, Releases Finance Director Legal Approval: �p''��{.��•' City solicitor Intro u ed For Passage First Reading Referral Page 1 of 9 Msigned to Councilor Frankel March 15, 1995 CITY OF BANGOR R Rat mg f el (TITLE.) �¢sOlUPf.. fy............Exec ..... t . o ............... se Documents _.___. -- wastewater Treatment Plant Project By the City CounnI of Ne City of Bax B LV&8, the action of Edward A. Barrett, City Manager, in executing release documents relating to settlement of claims between parties involved in pending litigation entitled Connecticut Indemnity Company v The City of Bangor at al (Penobscot County Superior Court, Docket No. CV -93-241) is hereby ratified and affirmed. Copies of the releases which were executed by the City Manager on February 17, 1995 are attached to this Resolve. IN CITY COUNCIL 95=132 March 15, 1995 H E 5 0 L V E Passed C1 Ratifying execution of Release Documents - Wastewater Treatment Plant Project. 95-132 1 TO ALL TO w ON THESE PRESENTS SHALL COME OR NAY CONCERN GREETINGS, HNOW YE, that the City of sangor (hereinafter designated as the •Releasor") For an in consideration of the a= of One and 00/100 Dollars ($1.00) and other valuable consideration, to the Releasor in hand paid by, Harvey Construction Company, the receipt of which is hereby acknowledged, has remised, released and forever discharged, and by these Presents does remise, release and forever discharge Harvey Coretruction Company (hereinafter designated as the "Releasee") of and from all debts, obligations, reckonings, promises, covenants, agreements, contracts, endorsements, bonds, specialties, controversies, suits, actions, causes of action, trespasses, variances, judgments, extents, executions, damages, claims or demands, in law or in equity, which against Releasee the Releasor ever bad, now has or hereafter can, shall, or may have, for, upon or by reason of any and all claims regarding the mechanical work on the ProjecE (as defined below) as covered in the Subcontract between Releasee and The Holden Company, and a certain completion agreement between Releasee and The Connecticut Indemnity Company, including, but not limited to, 1) any claims for liquidated damages as set forth in paragraph 5(d) of a certain Settlement Agreement dated as of the 1st day of April 1994 between Releasee, Releasor, Hartford Fire Insurance Company, and Hutch Concrete Contracting Corporation, and 2) any and all claims arising in a certain civil action entitled Connecticut 9s-n3a1; Indemnity Company v. The City of Banaor, Docket No. CV -93-241 and in a certain civil action entitled Connecticut Indemnity Company v. Harvey Construction Company, Inc.. at al., Docket Ma. CV -94-57, both actions pending in the Superior Court of the State of Maine, Penobscot County in connection with construction of a project owned by the City of Bangor known as the Primary Wastewater Treatment Plan Upgrade located in Bangor, Maine (the "Project"). Releasor hereby represents that, with the assistance of counsel, it has read and understands the terms of this Release. Releasor further represents that it is authorized to enter into and perform their obligations under this Release have taken place or have occurred. Releasor further understands that this Release, the Releases to be executed by Me Connecticut .Indemnity Company, Harvey Construction Company, Inc., and The Hartford Fire Insurance Company, together with the stipulations of dismissal with prejudice to be filed with the court, represent the entire terms of the agreement between Releasor and Releasee in compromise of this claim, and that such terms constitute a full and final settlement of all claims as described above. Releasor understands that this Release serves to implement the intent of Releasor and Releasee that the dismissals be given their broadest possible effect in order to preclude and bar, legally and equitably, any subsequent demands, claims, or litigation, directly or indirectly, arising out of matters which could have been asserted in the civil actions. This Release shall be governed by the laws of the State of Maine. 2 95-132 wherever in this instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the ease effect as if the words "heirs, executors, administrators, personal or legal representatives, successors and assigns" has been inserted after each and every such designation and all the terms, covenants and conditions herein contained shall be for and shall inure to the benefit of an shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns, respectively. In all reference herein to any parties, persons, entities or corporations the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. IN NITNE53 WHE5ZEOF, the Releaser has signed and sealed this instrument or caused these presents to be signed by its proper municipal officers and its municipal seals to be hereto affixed. this 17th day of February . 1995 3 SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF OR ATTESTED BY: _) 95-132 THE Cl BANGOR By: � Its City Manager STATE OF !WINE ) COUNTY OF PENOBSCOT February 17, 1995 Personally appeared, Edward A. Barrett City Managez of The City Of Bangor signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed and the free act and deed of said City of Bangor before me. C'oami6airn o thtr9uxribrcv Notary Public My Commission Expires: 12/23/96 Printed Name: Terri Lee Corey v:v.lW .:WUAAM.m. W15M 95-132 RELEASE TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN GREETINGS, KNOW YE, that the City of Bangor (hereinafter designated as the "Relemm) for and In considerston of the sum of One and 00/100 Dollars ($1.00) and other valuable consideration, to the Releasor in hand paid by The Connecticut Indemnity Company, Me receipt of which is hereby acknowledged, has remised, released and forever discharged, and by these Presents don remise, release and forever discharge The Connecticut Indemnity Company, Ycemy Management. Inc„ and The Holden Company (Hereinafter designated as Me'Releaseesj of and from all debk, oblignone, reckonings, Promises, covenants, agreements, contracts, endorsements, bolls, spedahes, controversies, suits, actions, causes of action, trespasses, variances, judgments, extents, executions, damages, claims or demands, in lass or in equity, which against Releasees the Releasors ever had, now has or hereafter can, shall, or may have, for, upon or by reason of any and all claims regarding a certain Performance Bond BDC 300719 dated April 18, 1991, issued by The Connecticut Indemnity Comicarry to The Holden Company, any and all chums regarding a certain Labor and Material Paymerd Bond dated Audi 10, 1991 issued by the Connecticut Indemnity Company to The Holden Company, and any and all claims arising in a certain civic action surged Connec'cat Indemnity Comment, v The -City of Bancor, Docket No. CVlf? .241 and in a certain &it action entilled Connecticut Indemnity Company v. Harvey Construction Company,Inc.,eta, Docket No. CV -94-57, both acdons pending in the Superior Court of the State of Maine, Penobscot County in connection with construction of a project owned by the City of Bangor known as the Primary Wastewater Treatment Plant Upgrade located in Bangor, Maine One Prolecp: Specifically excluded and excepted from this Release are the obligations of the Surety under the Performance Bond issued to Holden In connection with the Project , as Me same relate exclusively to warranties and guarantees upon equipment provided to the Project, which warranties and guarantees. R any, and proeided such weariness and guaranties have not expired, will continue in full tome and effect in accordance with Meir original terms. Rels re r hereby represents that, with the assistance of counsel, it has read and understands 95-132 the terns of this Release. Releaser further represents that it Is authorized to enter free and perform their obligations under this Rebase have taken place or have occurred. Releaser further understands that thas Release, the Releases to be executed by The Connecticut Indemnity Company, Harvey Construction Company, Inc., and The Hartford Fire Insurance Company, together with the stipulations of dismissal with prejudice to be filed with the coup, represent the entire terms of the agreement between Releasor and Releasees in compromise of this dem, and that such terms constitute a full and final settlement of all claims as described above. Releasor undersbnd5 that this Release serves to implement the intent of Releaser and Releasees that the comments ba given their broadest possible effect in order to preclude and bar, legally and equitably, airy subsequent demands, claims, or litigation, directly or inerecty, arcing out of matters which could have been awarded in the civil actions. This Release shall be governed by the laws of the State of Maine. Wherever In this instrument any pare shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words 'heirs. executors, administrators, personal or legal representatives, successors and assigns' has been inserted after each and every such designation and all the tern, covenants and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs, executors, administreors, personal or legal representatives, successes and assigns, respectively. In all reference herein to any patties, persons, anodes or corporotiom the use of any particular gender or the plural or singular number is intended to Include the appropriate gentler or number as the had of the within Ins rumen may require. IN WITNESS WHEREOF, the Releasor has signed and sealed this instrument or caused these presents to be signed by its proper municipal officers and its municipal seats to be hereto affixed use JL day of February. 19115. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF OR ATTESTED BY THE CITY OF BANGOR� Edcatd A. Barrett ITS city 2- 95-132 STATE OF MAINE ) ) COUNTY OF PMBS6]S M' February 1955 �7 Personally appeared, Edusnd A. Batcett, City MddaW of The City of Bangor signer and Sealer of the foregoing Instrument, and ac moeatlged the same to be his free ed and deed and the free act and deed of said City of Bangor before me. inn q�. �vtiv�i+,7 Atta t M Commission Expires n Typed parts: EfM. StmIffiafue l - 3 -