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Home My WebLink About1995-12-11 96-61 RESOLVECOUNCIL ACTION Item No. 96-61 Date December11. 1995 Item/Subjectz Resolve, Ratifying Execution of Release -- Novel Iron Works, Inc. and United States Fidelity a Guaranty Company Responsible Department Legal In January 1995, the City of Bangor made a direct payment to Novel Iran Works, Inc., a subcontractor on the Airport terminal building expansion project, for the purpose of discharging mechanics lien filed by Novel at the Penobscot Registry. Novel had flled suit in Penobscot Superior Court to enforce Its lien claim. The City's direct payment amount was $156,185.15, paid from project funds. In return, Novel Iron Works dismissed its original action and provided the City with a 'Financial Bond^ assuring repayment of the $156,185.15 to the extent the City did not receive a credit against contract funds due to Wolf Construction Corp. under the project prime contract. (cont'd on next page) � Vr'I' Department Head Manager's Comments: city 1J0.U4W— y Manager Associated Informationz Resolve, Release Budget Approval: Finance Director City Solicitor Introduced For X_ Passage First Reading Referral Page 1 of 9 96-61 Assigned to Councilor Blanchette December 11, 1995 CITY OF BANGOR (TITLE.)¢SDIbB�Batityi.nq..axacuuau_nE..aeleaxe...:.....Nnxei..3xan......_.._... Works, Inc. and United States Fidelity 6 Guaranty Company BF me City Consul o/me aty of Bangor. RESOLVED, the action of Bdwaxd A. Barrett, City Manager, on December 4, 1995 in executing a Release in connection with City of Bangor v. Novel Iron Works. Inc. and United States Fidelity 6. Guaranty Company, United States District Court, Docket No. 95-0434-B, is hereby ratified and affirmed. A copy of the referenced document is attached to this Resolve. IN CITY COUNCIL 96-61 December ll, 1995 R E S O L V E Passed Ratifying Execution of Release - Novel CITY CLERK Iron works, Iet. and United States Fidelity d Guaranty Company 15714 N0i�&JRON WORKS, INC. - c AD �� anget�u oN 6e b r-1 1995 m .ora - F�B 9 A��Cit3� .r,0,1 L400495. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE CITY OF BANGOR, Plaintiff vs. NOVEL IRON WORKS, INC. and UNITED STATES FIDELITY & GUARANTY COMPANY, Defendants Docket No. 95-0234-8 STIPULATION OF DISMISSAL 96-61 Plaintiff, City of Bangor, and Defendants Novel Iron Warks, Inc. and United States Fidelity 6 Guaranty Company, through their undersigned attorneys duhatauthorized, uthoiz,he ebyIn tstipulate his terpursuant to F. R.Civ. P. 41(a)(1)Complaint be dismissed with prejudice and without cc s Dated: 12/4/95 o S He mann III, Esq. DulyaAuthorized Attorney for Plaintiff City of Bangor 73 Harlow Street _ Bangor ME 04401 Dated: 12/4/95 Paul A. Weeks, Esq. ' Duly Authorized Attorney for Defendant Novel Iron Iron Work$, Inc. and Defendant United States Fidelity S Guaranty Co. 23 Water Street, Suite 203 Bangor ME 04401-6358 M STATE OF MAINE SUPERIOR COURT PENOBSCOT, on. CIVIL ACTION DOCKET NO. CV -93-523 NOVEL IRON WORKS, INC., ) plaintiff ) V. ) WOLF CONSTRUCTION CORP ) and STIPUWTION OF DI6MIB6A1. CITY OF BANGOR, ) and ) SEABOARD SURETY COMPANY, ) ' Defendants ) The parties, each through its undersigned attorney of record duly authorized, hereby stipulate that this case, including the Complaint and all Counterclaims and Cross Claims raised by any party herein, are hereby dismissed with prejudice and without coats. Dated: 12/4/95 Paul A. Weeks, Esq. Duly Authorized Attorney for Plaintiff Novel Iron Works, Inc. 23 Water Street, Suite 203 Bangor ME 04401-6358 Dated William S. Knowles, Fag. Duly Authorized Attorney for Defendants Wolf Construction Corp. and Seaboard Surety Company P.O. Box 586 Portland MB Q 12-0586 Dated: 12/4/95 N man Hj6itmann ISI, Esq. Duly Authorized Attorney for Defendant and Cross Claimant City of Bangor 73 Barlow Street -Bangor ME 04401 96-61 as to matters that are the subject of this Release, including without limitation any and all claims for indemnity and/or set - S44 Releasor and Releasees agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give fullforce and effect to the basic terms Of the agreement embodied in this Release. This Release contains the entire agreement between the parties and its terms are contractual and not a mere recital. This Release shall be governed and interpreted under the laws of the State of Maine. IN WITNESS WHEREOF, the CITY OF BANGOR has caused this document to be signed and sealed by Edward A. Barrett , its City Manager hereunto duly authorized, this 4th day of December 1995. CITY OF BANG/OR BY: 'Rln/G . Name: E war Barrett Title: City manager Only Authorized STATE OF MAINE Penobscot, se. December 4 1995 Personally appeared the above named Edward A. Barrett , who being on oath, did acknowledge that hekabm is the Cit M r of the City of Bangor duly authorized in said capacity to execute this document, and that th'e Release is his {.d> free act antl deed and hisAtmme free -acted Red in said capacity. NoIs tty P 231c/Attorney at Law 3 96-61 95-0234-B. It is understood and agreed that this settlement is a compromise of doubtful and disputed claims and that this payment is not to be construed as an admission of liability on the part of Releasees, by whom liability is expressly denied. The Releasor hereby acknowledges and agrees that this Release is a general release as to all matters within its scope, and Releasor expressly waives and assumes the risk of any and all claims for damages which exist as of this date but which the Releasor does not know of or suspect to exist, whether through ignorance, oversight, error, negligence or otherwise, and which, if known, would materially affect the Releaser's decision to enter into this Release. Each party shall bear all its own attorneys• fees and costs arising from the actions of its own counsel in connection with the matters referred to in this Release, and each party shall have no obligation with respect to attorneys• fees and costs of any other party Releasor warrants that concurrently with the execution of this Release, its counsel has delivered to counsel for Releasees a Stipulation of Dismissal under the Federal Rules of Civil Procedure 41(a) in a form and substance required by Releasees in the said lawsuit. The Releasor has authorized its counsel to execute this Stipulation on its behalf. It is further understood that Releasor expressly reserves any and all rights of action it may have against any third party r 96-61 RELEASE KNOW ALL MEN BY THESE PRESENTS: That the CITY OF BANGOR, a municipal corporation organized and existing under the laws of the State of Maine with a place of business in Bangor, Penobscot County, Maine (hereinafter referred to as "Releasor'), for and in Consideration of Thirty Six Thousand Nine Hundred Sixty Nine and 45/100 Dollars ($36,969.45), and other valuable consideration, the receipt of which is hereby acknowledged, does for itself, its successors and assigns, hereby release, acquit, and forever discharge NOVEL IRON WORKS, INC., a Massachusetts corporation with a place of business in Greenland, Rockingham County, New Hampshire, and UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland corporation with a place of business in Baltimore, Maryland (hereinafter collectively referred to as "Releasees'), and their successors, assigns, insurers, employees, and agents, -from any and all claims, demands, actions, and causes of action of all kinds whatsoever which it has now or which may hereafter accrue to it which arise from or relate to a certain Financial Bondrgiven by the said Novel Iron Works, Inc., as Principal, and by the said United States Fidelity & Guaranty Company, as Surety, to the said City of Bangor, which Bond is for a face amount of $156,185.15 and is dated January 9, 1995. Included in this Release are all claims made, or which could have been made, by Releasor in a certain lawsuit entitled City Bancor v. Novel Iron Works, Inc.d United States Fidelity s Guaranty Company, which suit is now pending in the United States District Court for the District of Maine and bearing Docket No. 96-61 The City ultimately received credit for all but $39,741.85 0£ the direct payment amount under the project prime contract. Offsetting the $39,741.85, the arbitration panel in our arbitration pro- ceedings ultimately awarded Novel Iron Works $2,772.40 against the City of Bangor as recoverable costs for Novel's involvement in phase 1 of that arbitration. On July 13, 1995, my office made a demand on Novel Iron Works and its Financial Bond surety, USP&G, for payment of the $36,969.45 balance. Novel initially balked at repaying the City the double payment amount, because wolf had not yet paid Novel the subcontract balance in full. With the Council's prior authorization, my office filed suit against Novel on November 7, 1995. Wolf and Novel sub- sequently squared their accounts, and Novel tendered payment of the $36,969.45 amount. This item Is being brought to the Council for ratification of settlement documents and approval of the settlement. In accepting Novel's $36,969.45 tender, the City would waive claims to approximately five months interest, totalling some $1850.+