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HomeMy WebLinkAbout1994-01-24 94-86 RESOLVEIntroduced For ®Passege LJ First Heading Page _of C] Referral III 1 M6LIL HI Date Item No. 94-06 RES Wt AlsDmein9 5� asel Auth izixg C tyIALd>78Y W Exe:ute Claim SeLtlemit At¢eaoe¢t with Battey Canstnntimt Item/Subject: COMFOICIrl I . arta Baxtt Fixe ]neuxazre Gassy RE; Weatc-0atex Primary gleatia'ent Plant Up atle Project Responsible Department Leen] � 'ts4annt Commentary: Bass AVxI i Cmv®staxy, �aae Manager's Comments: CiryMaw r Associated Informrtion:© Budget Approval: re ni,ea Legal Approval: i - ciry5oliaira Introduced For ®Passege LJ First Heading Page _of C] Referral Assignee to Councilor Shubert January 26, 1996 CITY OF BANGOR RITLEJ ¢s0(t�¢,.. A pprOvi g Set tlemme.t sure nucmrtzmg my Managar amace........__.... .....y ..........0 ._.__... to Claim Settla�R ance Comp with HarvoY Construction Cerny, Inc. Up Hartford Fire Irouranse cooga:9 re: Wastewater Primary 1lealaent Plant Upgeade naojmt. Jiy 1M City Cowell oftM Ciq mflianymr: R OLVVD, the City Cowcll of tte City of Bangor hereby approves a settlement with Harvey mattuM:^^ Cospery, mc. arse with Hartfo ft Ineuta:ce Cmgav y, in its wes right arc] as perfomarcx house SmsetV for sod subrogee of tWtch Concrete attracting Cor(,satia:, of Cerfw:n general contractor• subcontractor ani surety chits arising cut of execution of carnets work On the City of Barngor's irivary wast iter 14aatmmt Plant Upgrade lauded, as set cut in the Parties, draft "Settlmm¢ AyeamenR" a orgy of which is ce file in the City Clerk's Office. Putt vent to the foregoing approval, the Cfty Manager is hereby au[lrzimtl, on belwlf of the City of Bangor, m execute said "SetTlment PgxeemenK" with Harvey crma[xvctiwt Cmpay Inc. am •ourford Fire rasurarce sCamnQany The finel "Settlement Agreement" as exmix[e3 by the City 19aager approved by the City Solicitor, With changes to he negotiated by the City Solicitor. The Cfty Msnager is furter autrorized on behslf of: the City of Bangor, to, execute any additional d msnTs, echsdvine and releasee called for in the "Settlement Agseanent". All such a]diticnal documents, sondes aM releasee shall be in a fonn approved by the City Solicitor. Upon execution of the final Settlement A9wamrmtc by all parties, the City Manages is further autlnrired to execute any necessary progst cwRract change carters: to dicot payment, forec ommtly-appropriated fouls, of the settlarerR a nant aM retainage amounts as sSeci£ied in said egreeQent, arse to do all other things necessary, to hoplenent the Settlement Agreement. f>m is necessary to i plment the eettlee3tt Agreement Shall be paid frame aecoarc no. BO -70-A95. 94-86 IN CITY COUNCIL N E S U E V E January 24, 1994 PASSED Approving Settlemlent and Authorizing City "' d Manager to Execute Claim S-ettlement with CITY CL ( Harvey Construction Company,Inc. and Hartford P1ie In Company Primary Treatment Plant Upg(r�pi�7f: 0 e . S Ate attached foxed Resolve would approve a settlement of grains arising out of concrete .k on the City of Bangor's pxinsxy wmatam[er txeataant plant upgrade (secesiary treatment plant) project, and world autharize execution of a "Settlement Agreement" and other d evmnsts inplamentilg the settlement. inolu�l asorzg the claims issues m be settled axe all claims of Hervey Construction CaPa Y, Inc., the project general contracWx; Hartford Fire Insurance C®1any, project Performance bad surety, mw..w Concrete Contracting Corporation, Concrete sutcorltrector• and Charwill Coshix:tiax Cagpany, replacement; subooMracmr for MKch; for ingrate of a "ebangad site condition' created by the late alandoxmmut of Mobile Pipe Line curany's petrolam prodcts pipeline crossing the secondary txezbrent plant project site. This is a major claim settlement by the City of Hagar, and has been the subject of extensive zvva by the Bangor City Council in past executive sessions. O settlement will be reviewed further in executive session prior to the Council's xeTclac snaring on the 24th. Aha "Settlement Agreement" referred to in the ffiixled Resolve is a draft Prepared by attorneys for Harvey Construction and H fovd nuaranse tsp y. mhs draft has bean reviewed by the City legal apartment and by outside wsnsel. While the general form of the Settlement Agreement se drafted is deemed acceptable by Bangor's legal corneal, sergdore of the agreement relating to ind®udficatiou and assignment of claims xeguirs revision. The attached Pesolve specifiea that the final settlement Agremmxt as executed cast be in a form approved by the City Solicitor, acid auUprirae the City Solicitor to negotiate changes to the carrent draft document. tone of Ursa cbanges will affect the agreed settlers¢ a sunt ($835,000), nor will the substance of the settling parties' ngtoal coinages be affected. Additional Caverns consenting the proposed settlement ars apprgp rate, as follows; 1. The proposed cetclerent avatituf a c®pradse by all parties achieved after lengthy negotiiation. It will plae a cap on the City of Bangor's potential liability, for a significant changed site coxlitimx at the secondary treatment plant project sits. By agreeing to this settlement, all Patties avoid the delay, em;nnse, and risk of Ws tally Protracted litigation over the issues ad re ge d In the settlement. 2. Settlement of these issues with niazvoy and Hagtford will clear the rocs for the City of Baer to pursue its awn recovery efforts against xespxsible thiri Parties - we hava already inutiated that process, with certain discussions pe ding. Because it is in the City's interest that those discussions Proceed fn a free and fair maser, public corrects concerning their progress will be limited. The City Council has been fully bciefad fn e>erutive sessiax, and will reoain close to the Process as those discussions progress. 3. Fads for the settlement ($835,000) are included within the current tomd authnrivation for the secondary treatment plant project. ion ad itie appropriation will be required. 'Hue settlevent assist and all 94-86 socfated meta base alxmdy been £aPmrai i,rco the City's financial analysis of coat Of the treahrent plant. xb serer rate ircrease• betorcl tlnse mtmnlly ached• wi11 ke necessary to fuetl the as t cos[. On Hre other h it anY fx ia»veied by the City as a Eeauult of ois thixi party ef e�rnavy forts of cu[iently� future serer cote ircmases. 4. 'Phe Wml mal To the City of Eangx' for curatruCGim of the secmvlary lreaaent Plant, incl✓H� the ProPesed settlevmrtr all relates expenaea, all past exparaes related w the Mbit pipeline issue, and all anticiP%ted exPa ,s for rerc]utim of rereLting chive, m roc =ludiug pmaibie t1LLrd-party r ®veries y tle City, Ss less then our mguieay.' eiginal lawatl p¢annetxuctim estimate of the Proimt mnstructim cost. Irc1 N•^; sll project ebange ordem to dace, tiD? P o settle mels, all relates cents, mtl the anticipated met ofof xesolvixg rawnavtin9 Project crates, total mnNn.rflm costs £m this Project wlll the original bid cost by les6 then 10&. fK" Agreement made this - day Of 1994 reflecting the final Settlement (the "Settlement') of a controversy which has arisen between, the undersigned City of Bangor, Maine (a Maine municipal corporation)(hereafter referred to as "Bangor!') and 1) Harvey Construction Company, Inc., a New Hampshire Corporation (hereinafter referred to as "Harvey"), and 2) Hartford Fire Insurance Company, (a Connecticut corporation) (hereinafter referred to as "Hartford") as surety on certain performance and payment bonds issued on behalf of Hutch Concrete Contracting Corporation, (a Vermont corporation) ("Hutch") to Harvey and Bangor, as well as surety on the concrete Work portion (defined below) of certain performance and payment bonds issued on behalf of Harvey to Bangor, and 3) Hutch, hereinafter all _ collectively referred to as "the Settling Parties". WITNESSETH• WHEREAS, on or about January 141 1991 Bangor entered into a contract with Harvey for construction of an upgrade of Bangor's Sewage Treatment Plant (the "Prime Contract"); and, WHEREAS, Harvey procured a payment and performance bond required under the Prime Contract from Hartford; and WHEREAS, the payment and performance bond covers loot of the Prime Contract, but Hartford's participation in this Settlement relates only to the Concrete work portion thereof; and WHEREAS, on or about Tune 28, 1991 Harvey entered into a Subcontract with Hutch dated as of February 1, 1991 (hereinafter "Hutch Subcontract") whereby Hutch agreed to perform certain concrete portions of the Prime Contract; and WHEHMAS, Hutch precured apayment and performance bond. required by the Hutch Subcontract from Hartford, and; w BAB, Hutch on or about August 230 1991 voluntarily defaulted on the Hutch Subcontract and Hartford arranged for the completion of Hutch's obligations under it pursuant to its performance bond to Harvey and Bangor; and WHEREAS, Hartford signed a contract with charwill construction Company ("Charwill") for Charwill to perform certain portions of Hutch's responsibilities under the Hutch Subcontract, and; WHEREAS, a dispute has arisen over expenses which Harvey, Hutch, and Hartford, have incurred as a result of a differing site condition involving an active Mobil Oil petroleum pipeline on the treatment plant site ("Site") which are more fully set forth in a claim dated May 21, 1992, as supplemented, filed by Harvey on behalf of itself and Hutch and Hartford against Bangor; and WHEREAS, a second dispute has arisen involving cracking of concrete; and WHEREAS, certain cracking of the concrete has occurred which Bangor maintains is "normal cracking" which Bangor claims Harvey .2_ (and by the terms of the Hutch Subcontract and Hutch Performance Bond, Hutch and Hartford) are obligated to repair; and WHEREAS, Hartford and Harvey have arranged for the repair of such cracks under protest asserting that such cracking is abnormal and not covered by the Prime Contract or Hutch Subcontract; and WHEREAS, Bangor has asserted various deficiencies with the concrete work; and WHEREAS, the above-described disputes will result in the commencement of a legal action if not settled ,in which the Settling Parties will incur significant expenses to pursue; and WHEREAS, the Settling Parties have deemed it in their best interests to settle and resolve certain issues related to the Mobil Oil pipeline and all issues between them relating to the Concrete Work as hereinafter defined but reserving their respective rights as to all other issues which may arise under the Prime Contract; NOW THEREFORE, in consideration of the mutual undertakings and covenants contained in this Settlement Agreement, including, without limitation, the undertakings and covenants of the Settling Parties to enter into, execute and deliver the Settlement Documents (as hereinafter defined) provided for herein upon the terms and subject to the conditions set forth herein, and other good and valuable considerations, the sufficiency and receipt of which is hereby acknowledged, the Settling Parties, -3- intending to be legally bound, agree to the forgoing recitals as well as to the following terms and conditions: 1. Scope and Effect of It is intended by the Settling Parties that this Settlement will resolve all outstanding and potential claims and disputes hereinafter described and identified between the Settling Parties as relating to or arising out of the "Concrete Work" which is more fully described in Exhibit A attached hereto and made a part hereof, and all claims related to the Mobil Oil pipeline differing site condition claim except as reserved herein. The Concrete Work consists of that work under the Prime Contract and Hutch Subcontract described in Exhibit A, as is, and as of the date hereof. It is further acknowledged and intended that a fundamental principle underlying this Settlement is that, upon delivery to an escrow agent of a certified check made payable to Hartford in the amount of $835,000 as provided in Paragraph 5 below as well as payment of the balance of the retainage on the Concrete Work to Hartford and Harvey as provided in paragraphs 5(b) and 5(C) below, Bangor shall be free of any responsibility for any claims by any. Settling Party, arising out of or in any way related to i) payment for the Contractual performance of the "Concrete Work" and ii) for damages due to the presence of the Mobil Oil Pipeline as a differing site condition except as outlined below. The payment by Bangor in conjunction with this settlement is made with the intent that it will obtain a final and complete resolution of all of these matters and the legal and -4- financial responsibility of Bangor for payment for the contractual performance of the Concrete Work by Harvey, Hartford, Hutch, and Charwill will be extinguished. Harvey will agree to indemnify and hold Bangor harmless against Claimsforpayment for labor rendered on, and/or materials incorporated into, the Concrete Work provided by any Party Harvey employed directly on, or from which Harvey purchased materials incorporated into, the Concrete Work, except for Hutch, Hartford and Charwill. Hartford will agree to indemnify and hold Bangor harmless against claims for payment for labor rendered on, and/or materials incorporated into, the Concrete Work by any party Hutch or Hartford employed directly on, or from which Hartford or Hutch Purchased materials incorporated into, the Concrete Work, including without limitation Charwill. It is also agreed that Bangor will release to Harvey and Hartford 100$ of all retainage now held on the Concrete Work in the total amount of $ s provided in paragraphs 5(b) and 5(c) below. Bangor may, pursue claims for damages caused to it by other persons than the settling parties (hereinafter "Responsible Parties") due to the presence the site of the Mobil Oil pipeline (including the Mobil Oil Company) and due tothe concrete cracking (including CH2M Hill, the Engineer on the Prime Contract) and agrees to release and hold Harvey, Hutch, Hartford and Charwill harmless from any and all damages or liabilities of -5- them to any person including but not limited to the Responsible Parties due to the impact of the presence on the site of the active Mobil oil pipeline, and/or concrete cracking and/or any other aspect of the Concrete Work, including claims made by the Responsible Parties against Harvey, Hutch Hartford, and/or Charwill for contribution, indemnification, or damages arising out of Bangor's claims against such Responsible Parties. Bangor agrees that the warranty an the Concrete Work under the Prime Contract has expired and is no longer in effect. The Settling Parties shall execute a Mutual Release in which Bangor will release and hold harmless Harvey, Hutch, Hartford and Charwill from all latent and patent defects or breaches of contract including but not limited to claims for consequential damages, now existing or hereinafter arising in the Concrete Work or due to the Mobil Oil pipeline, and Harvey, Hutch, and Hartford will release Bangor from any and all obligations to pay for the completed concrete Work and any and all claims arising out of the Mobil Oil pipeline differing site conditions claim, except from -;:t Harvey's claims based upon claims of Coleman Construction. 2. finitions: Unless expressly stated otherwise, the following definitions shall apply hereinafter: (a) "Harvey" means Harvey Construction Company, Inc., its officers, director, employees, representatives, successors or assigns. - (b) "Indemnified Claims" mean those claims. as to which Harvey, Hartford (including Charwill where -6- 7T appropriate), Hutch and Bangor are entitled to be indemnified and held harmless, as provided in paragraph 3 below. (c) "Bangor" means the city. of Bangor, Maine its employees, officials, inhabitants, representatives, successors and assigns. (d) "Settlement Documents" mean this Settlement Agreement and all documentsincluding checks referred to herein which are to be executed and exchanged as part of this settlement. (e) "Hartford' means Hartford Fire Insurance company its subsidiaries, affiliates and parent companies and their officers, directors and employees, for itself, and as surety of Hutch and, as surety of Harvey on the concrete Work, and any entity retained by Hartford toundertakeany part of the Concrete Work, including but not limited to Charwill. (f) 'Hutch' means Hutch Concrete Contracting Corporation, its officers, directors, employees, representative, successors and assigns. 3. Indemnity A. Individual Indemnity obligations: i. Harvey's Indemnification. Upon delivery to Hartford's escrow agent of the $835,000, as provided in paragraph 5(a) below, and payment to Hartford and Harvey of the final retainage on the Concrete Work provided in paragraphs 5(b) and 5(c) below; and execution of the Mutual Release provided for in paragraph 5(d) below, Harvey hereby -7- agrees and undertakes to indemnify and hold harmless Bangor for any and all actions, judgments, causes of action, claims or demands for damages, including,. without limitation, costs, expenses (including reasonable attorneys' fees), or other claims arising in law or equity asserted in the past, present or future, arising out of or in any way relating to the payment of labor, materials or equipment for any part of the Concrete Work; it being intended that Harvey with regard to Bangor only and no one else, waives, releases and compromises with such payment its own claims for payment for the concrete Work, and guarantees to Bangor that all legitimate claims of subcontractors, suppliers, laborers or materialmen to Harvey on the Concrete Work have been or will be paid, except for Hutch, and its subcontractors, suppliers, subrogees-, and those claiming by, through or under Hutch, which Hartford will pay or otherwise settle with; 11.Hartford's Indemnity; Upon delivery to Hartford's escrow agent of the $835,000, as provided in paragraph 5(a) below, and payment to Hartford $ as its share of the final retainage on the Concrete Work provided in paragraph 5(b) below, and .execution of the Mutual aelease provided for in paragraph 5(d) below, Hartford hereby agrees and undertakes to indemnify and hold harmless Bangor and Harvey for -any and all actions, causes of action, judgments, claims or demands -8- for damages, including, without limitation, costs, expenses (including reasonable attorneys' fees), or other claims in law or equity asserted in the past, present or future, arising out of or in any way relating to the payment for labor, materials, or equipment on the concrete Work arranged to be completed by Hartford, Hutch or Charwill under the Hutch Subcontract, it being intended that Hartford as Hutch's surety, Charvill's general contractor, and Hutch for itself waives, releases and compromises with such payment its and Hutch's own claims for payment for the Concrete Work, and guarantees to Bangor and Harvey only that all legitimate claims of subcontractors, materialmen or suppliers, to Hartford and Hutch on the Concrete Work, including specifically Charwill and its laborers, materialmen, suppliers or equipment providers have been or will be paid or their claims for payments finally settled. iii. Banaorts Indemnity: Bangor hereby agrees and undertakes to indemnify and hold harmless Harvey, Hutch, and Hartford for any and all actions, causes of action, Judgments,, claims or demands for damages, including, without limitation, claims for consequential damages, costs, expenses (including reasonable attorneys' fees), assessments, fines or other claims of any type, arising in law or equity or by statute or regulation including, but not limited to, those expressly arising from Harvey, Hutch's, and/or Hartford's own negligence, asserted in the past, -9- present or future, arising out of or in any way relating to the, presence on site of the mobil oil petroleum pipeline, and all matters relating to the Concrete Work including but not limited to cracking of the concrete; it being intended that Bangor waives, releases and compromises its own claims regarding these matters, and guarantees to Harvey, Hutch, and Hartford (including Charvill) that if any party, including any Responsible Party, should sue or claim against any of them for identification, contribution, or payment Of damages, or for any equitable relief, Bangor will assume all defense thereof at its sole expense and will�pay whatever amounts Hutch, Hartford (including Charwill) and/or Harvey may be obligated to pay, up to the amount of five million dollars ($5,eec,e0o.00). B, General IndmnitV Orlicati2nn:If any claim, demand, lawsuit or other proceeding with respect to which any Settling Party is entitled to indemnity under the provisions of this paragraph is asserted, commenced or threatened, the indemnified party shall promptly notify the indemnifying party or parties, as the case may be, of said Indemnified Claims and, the indemnifying party shall thereafter be obligated and entitled to conduct and control, through counsel of their own choosing, and at their own expense, the defense thereof. The indemnified party shall cooperate fully in the defense of said indemnified Claims including but not limited to by making available all relevant documents within its possession, custody and control and -10- appearing personally to give testimony as needed, all at the expense the indemnifying party._ It is the intention of the parties hereto that the indemnity rights created herein shall pertain only between Bangor on the one hand, and Harvey, Hutch and/or Hartford, as the case may be, on the other hand, or between Hartford, Hutch and/or Harvey, and shall not create rights in or be enforceable by or benefit any person or entity other than Bangor, Hartford, Match and/or Harvey and their successors, representatives and assigns, except in those instances where Charvill is designated. 4. Closing and Settlement Documents: On a date (the ,Closing Date") to be established by mutual agreement, but not later than 14 days after the execution of this Settlement Agreement by the last party affixing its signature hereto, the Settling Parties shall execute and/or provide each of the documents and money described and set forth below, at a closing (the nClosingn) to be held, commencing at 10:00 a.m., at the offices of Bernstein Shur Sawyer and Nelson at 100 Middle Street, Portland, Maine: 5. Cj2514bli t' : At the Closing, the Settling Parties will deliver the following Settlement Documents: (a) Bangor shall deliver at the Closing to an escrow agent for Hartford eight hundred thirty-five thousand dollars ($815,000.00) by certified check in full settlement of all claims relating to the Mobil 011 pipeline differing site condition claim (except for claims made by Coleman -11- Construction Company ("Coleman") which are specifically reserved therefrom) and Concrete Work crack repair claim. (b) Bangor will deliver to Hartford, on its behalf and on behalf of Hutch, a certified check in the amount of $ as Hartford and Hutch's share of the final retainage related to the Concrete Work due to them under the Hutch Subcontract. (c) Bangor will deliver to Harvey a certified check in the amount of $ as Harvey's direct share of the final retainage relating to the Concrete Work. (d)The Settling Parties shall each execute and deliver to the other the Mutual Release attached hereto, as Exhibit e. The Mutual Release shall, among other things, completely release Bangor on the one hand, and Harvey, Hutch and Hartford (including Charwill) ontheother, from any claims by or obligations to the other arising out of payment for, i) the Concrete work, except for the claims of Harvey based upon claims of Coleman as they relate to the Mobil Oil pipeline and, ii) the Mobil Oil pipeline differing site condition claims. Each Settling party shall receive an original Mutual Release. The Mutual Release also releases Harvey and Hartford as Harvey's surety, from any and all obligations to pay liquidated damages to Bangor except as Harvey may recover from subcontractors which were responsible for any delay, it being expressly understood that recovery of liquidated or other damages from such -12- subcontractors will be the sole source of payment of any liquidated damages by Harvey to Bangor. Bangor also agrees that its claim for such liquidated damages does net exceed one hundred and two thousand ($102,000.00), and that in no event shall Hartford be liable for any liquidated damages. (e) Harvey and Hartford and Hutch shall provide to Bangor, evidence authorising. execution of and acceptance of the Settlement Documents. Bangor shall provide to Harvey and Hartford duly certified copies of the resolution of the Bangor City council duly authorizing the City Manager to execute and accept the Settlement Documents on behalf of Bangor, and the opinion of outside legal counsel (not serving as city Solicitor or other official municipal office) that the city Manager has the authority to sign and accept the settlement Documents. (f) Harvey and Hartford and Hutch will provide mechanics lien waivers in the form attached hereto as Exhibit C covering all aspects of the concrete Work. 6. P t C1 Obli ti : After the Closing Date the parties agree to Cooperate with one another as follows: (a) Hartford agrees to disclose to Bangor copies of all studies, reports, correspondence, tests and other written information in Hartford's possession relating to the cracking of the concrete and the design mix of said concrete. Hartford understands that Bangor needs this -13- information to evaluate a possible action against a Responsible Party. Hartford will provide these documents with no representations, warranties or guarantees. (b) Hartford and Hutch and Harvey will execute a full assignment to Bangor of all claims they individually, collectively, or in a representative/subrogee capacity may have against any Responsible Party including, but not limited to, Mobil oil Pipeline company, CH3M Hill or any other third party arising out of the presence and late abandonment of the Mobil Oil petroleum pipeline on the site, or arising out of issues related to the design of Bangor's secondary wastewater treatment plant. The assignment shall be in the form attached hereto as Exhibit D. Hartford, Hutch, and Harvey do not in said assignment represent or guarantee that any such claim exists, or that if one does exist, that it is assignable to Bangor or that Bangor may recover under such claim. - (c) Harvey., and Hartford and Hutch agree that should Bangor prosecute any civil action against a Responsible Party for recovery of its payments hereunder, they will reasonably cooperate with Bangor.. Such reasonable cooperation shall be at Bangor's full expense, including but not limited to payment by Bangor of all traveling and housing costs, photo copying, attorney's fees, experts fees, reasonable per diem charges for personnel time and/or any other costs incurred in providing such cooperation. Cooperation shall include -14- providing disclosure and access to documents, records, and reports, including expert reports, involving the Mobil 011 pipeline or concrete cracking issues. It shall also include providing, at Bangor's expense, copies of any such documents, and the voluntary attendance on a reasonable per diem charge, with all expenses paid, of any principal employees and/or officers of Harvey at arbitration hearings,. depositions, and trial. Hartford agrees to use all reasonable efforts to provide Hutch employees and/or officers on a similar basis, but Bangor acknowledges that Hartford does not have control over Hutch. (d) Harvey agrees that should Bangor mediate any dispute with JE -Electric, or arbitrate with Coleman Construction company, it will reasonably cooperate with Bangor. such reasonable cooperation shall be at Bangor's full expense, including, but not limited to, payment by Bangor of all traveling and housing costs, photo copying, attorney's fees, experts fees, reasonable per diem Charges for personnel time and/or any other costs incurred in providing such cooperation. cooperation shall include providing disclosure and access to documents, records, and reports, including expert reports, involving the Mobil 011 pipeline issue. It shall also include providing, at Bangor's expense, copies of any such documents, and the voluntary attendance on a reasonable per diem charge, with all expenses paid, of any -15- principal employees and/or officers of Harvey at mediation or arbitration hearings. 7. Limited obligations Under This Settlement e t: The delivery of the certified checks as provided in paragraph 5, the execution and delivery of the Settlement Documents referred to herein, the giving of the warrantiesand representations provided, and the giving of notice and cooperation in the defense of Indemnified claims as set out in paragraph 3 above, shall be the only obligations of the Settling Parties under this Settlement Agreement or in any matter related to this settlement (but excluding matters unrelated in any manner to the subject matter of this Settlement Agreement including any obligations Harvey may have to Hartford by common law or contract and including any obligations that Hutch may have to Hartford by common law or contract), and no Settling Party hereunder has promised or undertaken to do or will be called upon to do anything else in the future in conjunction with this settlement or the Settlement Agreement. Specifically, and without limitation, no Settling Party shall be under any obligation, pursuant to contract, common law or otherwise, to indemnify any other Settling Partyorany assignee of any such party with respect to any obligations or claims which are not expressly provided for in paragraph 3 above. Notwithstanding the foregoing, it is specificallyagreed that neither the Settlement Agreement nor any documents referenced therein shall alter,amend, change or diminish any or -16- all indemnification obligations owedbyHarvey to Hartford, as its surety, either by common law and/or in accordance with the terms of the General Indemnity Agreement (^G.I.A.a) dated September 14, 1990 executed by Harvey in favor of Hartford. Said G.I.A. remains in full force and effect. Likewise, it is further agreed that neither the Settlement Agreement nor any documents referenced therein shall alter, amend, change or diminish any or all indemnification obligations owed by Hutch to Hartford, as its surety, either by common law and/dr in accordance with the terms of the General Indemnity Agreement (^G.I.A.^) dated May 22, 1991 executed by Hutch in favor of Hartford. Said G.I.A. remains in full force and effect. The parties' obligations relating to or arising out of the giving of the warranties and representations provided herein shall survive the execution of this settlement Agreement and the delivery of the Mutual Release. e. Multiple Oriainalg, The Settlement Agreement and all Settlement Documents except for the certified cbeckSshall be executed in multiple originals, so that each Settling Party who requests may receive an executed original of the Settlement Agreement, provided that each signatory to this Settlement Agreement may affix his, her or its signature to a separate signature page. 9. Successors and T anmfergg All covenants,. promises and agreements of each of the parties contained herein shall be -17- binding upon and inure to the benefit of their respective successors, transferees and assigns, immediate and remote. is.h Dcumsnts, The Settling Parties agree to. execute any other documents including changeorders to the Prime Contract or Hutch Subcontract, and to undertake any other actions necessary to effect and accomplish the purposes of this - - Settlement Agreement, and further agree to do so as promptly as possible. _ 11. Incomoration, All documents referred to in this Settlement Agreement are incorporated by reference herein and made a part hereof. 12, Confidentiality, The Settling Parties agree that the f terms of this Settlement Agreement will be kept confidential, (V L rI,i except to the extent that any Settling Party, in its sole discretion, determines that disclosure of the terms of this Settlement Agreement is necessary (a) to protect, preserve or ,ca assert any rights or consequences of this settlement (b) to ` comply with any rule, regulation, Statutes, order of the Court or other law, (c) as part of an audit, (d) in connection with the obtaining of insurance policies, the making of any claim thereunder or in complying with the terms and conditions of any - such insurance policy, (e) for other legitimate business reasons. 11. T int Authorship and Intecration. The Settling Pasties have had the advice of counsel in the negotiation of this Settlement Agreement. This Settlement Agreementis the joint product of negotiation between the Parties, and no Settling Party -Is- is deemed to be the author or creator of this Settlement Agreement or any Settlement Document for purposes of applying any rule of construction in its interpretation. This Settlement Agreement and the Settlement Documents constitute a complete and integrated statement of the terms of the agreement between the Settling Parties, and no Settling Party has made any promise to any other Settling Party which is not contained therein. la. Reservation of claims Not Settled. All claims inuring to any Settling Party to this Settlement Agreement not expressly released under any Settlement Document against persons or entities not participating in the settlement are preserved. This Settlement Agreement, including but not limited to the indemnification obligations created herein, shall not create any rights or in any manner be enforceable by or benefit any person or entity not a Settling Party hereunder or otherwise expressly stated herein to be intended to benefit hereunder. No Third Party beneficiary rights are thus intended to be created hereby. 15. Notices. Any notice which is permitted or compelled under the terms of this 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: -19- A. On behalf of. Harvey: B. On behalf of Hartford: Robert A. O'Connell, Esq. C. On behalf of Bangor: D. On behalf of Hutch: is. Attorneys Fees. In the event that any party breaches the terms of this settlement Agreemant, the party damaged thereby shall be entitled to recover their reasonable attorneys fees incurred in asserting their rights and claims hereunder. -'17. survival, The obligations of the parties as set forth in this Settlement Agreement shall survive the exchange of the settlement proceeds and the execution and delivery of the Settlement Documents. 18. No Waiver. Neither any Settlement Document, nor any provision 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. 19. Maine few Annlies. The parties acknowledge that the transactions contemplated hereby are to be performed in the State of Maine and that after due consideration and consultation with counsel, they have each elected to have the internal laws of the State of Maine apply hereto and, accordingly, this Settlement Agreement and the transactions contemplated hereby shall be -20- deemed made under and shall be construed in accordance with and governed by the internal laws of the State of Maine without regard to principles of conflicts of laws. 20. Vacua for Resolving D1 - In the event that a dispute arises between the Settling Parties, it is hereby agreed that the parties will attempt to resolve the dispute through non- binding mediation using Rndispute,. Inc. as mediator, prior to filing any action in any court of law. If mediation fails, any dispute may be litigated in any state or federal court of - competent jurisdiction located in the State of Maine and the Settling Parties hereby agree to submit themselves to the personal jurisdiction of said Courts for these purposes. 21. No Admission of wrongdoing. This Agreement, whether or not consummated, shall in no event be construed or be deemed to be evidence or an admission or a concession on the part of any Settling Party with respect to any claim or cause of action, or any fault or liability or damages whatsoever. The Settling Parties deny any and all wrongdoing of any kind whatsoever in connection with the Prime contract or Hutch Subcontract, and do not concede any infirmity in the defenses which they, collectively or individually, have asserted or intended to assert in any action. The Settling Parties are entering into this Agreement in order to avoid further expense, inconvenience and delay, and to dispose of potentially extremely expensive, burdensome and protracted litigation. This Agreement, whether or -21- not consummated, 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 or an admission by any of the Settling 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 any proceeding, or the deficiency of any defense which has or could have been asserted in such proceeding, or of any liability, fault, wrongdoing or otherwise on the part of the - Settling Parties, or any of them, or as a presumption, concession or an admission of any Infirmity in a claim of or against any of the Settling Parties; or (b) Offered or received as evidence of a presumption, concession or an admission of any fault, misrepresentation or omission in any statement or written document approved or made by any of the, Settling Parties; or (c) Offered or received as evidence of a presumption, concession or an admission of any liability, fault or _ wrongdoing or in any way referred to for any other reason by any of the parties in any other civil, criminal or administrative action or proceeding other than such proceedings as may be necessary to effectuate the provisions of this agreement; or (d) construed by anyone for any purpose whatsoever as a presumption, concession or an admission of any infirmity in -22- a claim, liability, fault, wrongdoing or otherwise on the part of any of the Settling Parties; or (a) 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. 22: Consideration. No breach of this Agreement or of any of the Settlement Documents shall constitute a failure or lack of consideration or breach with respect to any other Settlement document, and all such Settlement Documents shall be enforceable without reference to this Agreement or any of the other Settlement Documents. 23. vntire Agreement. All written and oral agreements heretofore made among the parties hereto, or any of them, in contemplation of this Agreement and the Settlement, the transactions contemplated hereby, or the subject matter hereof, are superseded by this Settlement Agreement and are hereby terminated in their entirety, except with regard to any of the Settlement Documents. No party will be bound by or charged with any oral or written agreement, representation, warranty, statement, promise, information, arrangement or understanding relating to the terms of this Agreement which is not specifically set forth either in this Agreement or in the Settlement Documents; and this Agreement along with the Settlement Documents constitutes the entire agreement between the parties relating to the scope of the settlement and does not in any way affect the -23- �',,,.�. General indemnity Agreement between Harvey and Hartford dated September 14, 1990, and/or the General Indemnity Agreement between Hartford and Match dated May 22, 1991. 24.yalnntary and Informed Entrv. Each party enters into this Agreement and each of the Settlement Documents freely, voluntarily, and in good faith, and with the advice of independent counsel. In the case,of Bangor, it warrants that the person executing this Agreement and the Settlement Documents has the authority to do so, and that such authority is granted pursuant to the normal and appropriate process consistent with the charter, laws, ordinances, and regulations of Bangor and the state of Maine respectively. Further each party acknowledges that the terms of this Agreement and the Settlement Documents are fair, reasonable, and a good faith settlement of the claims covered thereby. 25. No Rescission. No party hereto shall seek rescission of this Agreement. None of the parties to this Agreement shall have the right to terminate the same. 26. survival of obligation. Me obligations of the parties as set forth in this Agreement shall survive the exchange of settlement proceeds and the execution and delivery of the Settlement Documents. 27. Amendments in Writing. Neither this Agreement, nor any provision hereof, may be changed, waived, terminated or discharged orally, but only by an instrument in writing signed by -24- the party or parties against whom enforcement of the change, waiver, termination or discharge is sought. 28. N ledge, f Claim. Harvey and Bangor acknowledge that to the beet of their current information and belief, Exhibit E attached hereto represents an accurate itemization of all project related claims which are left unresolved by the settlement, including but not limited to any and all punch list and credit items, outstanding subcontractor payment claims, disputed Change orders and so forth. Bangor also warrants that it has no claims against Harvey, Hartford or Hutch, or knowledge of any claims against them by third parties except as set forth in Exhibit F. IN WITNESS WHEREOF, the parties have executed this Settlement Agreement this _ day of , 1993. 'SEEN AND AGREED TO IN THE PRESENCE OF: Witness HARVEY CONSTRUCTION COMPANY, INC. Witness HARTFORD FIRE INSURANCE COMPANY -25- Witness THE CITY OF BANGOR, WHINE Witness NOTCH CONCRETE CONTRACTING CORPORATION UG.= •Klrtnt nel Iw. 01/W/N -26-