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HomeMy WebLinkAboutRes1993-085 . . . Sponsored by: Tones CITY OF SEWARD, ALASKA RESOLUTION NO. 93-085 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING SETILEMENT OF AB&H CLAIMS FROM THE LOWELL POINT SEWAGE LAGOON PROJECT WHEREAS, the City of Seward entered into a contract with Alaska Boiler & Heat Exchanger Service, Inc. dba AB&H Construction (AB&H) for removal and disposal of sludge from Lowell Point Sewage Lagoon; and WHEREAS, the City of Seward exercised its contractual rights to terminate for convenience AB&H's services; and WHEREAS, AB&H has contested the amount of payment obligations owed by the City of Seward to AB&H pursuant to the contract and as a consequence of the termination for convenience, and seeks payment above and beyond those costs paid by the City of Seward to AB&H on the basis of undisputed records; and WHEREAS, AB&H has threatened litigation to recover a sum substantially in excess of the amounts paid by the City of Seward and the City of Seward recognizes that the costs and risks in litigation regarding such disputed amounts are factors supporting a reasonable compromise settlement of the matter; WHEREAS, after engaging in settlement negotiations with AB&H, the Administra- tion has recommended to the City Council a compromise settlement payment with which AB&H agrees, and has recommended entry into a mutual release and settlement agreement to resolve all matters between the City and AB&H; and WHEREAS, it is in the public interest to settle by reasonable compromise the claims made by AB&H against the City of Seward; NOW, THEREFORE, BE IT RESOL YED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council accepts the recommendation of the Administration to execute the document substantially in the form of that "Mutual Release and Settlement Agreement" presented to the City Council, and authorizes the City Manager to execute the same on behalf of the City of Seward. . . . MUTUAL RELEASE & SETTLEMENT AGREEMENT R E C I TAL S: Agreement has now been reached between Alaska Boiler & Heat Exchanger Service, Inc. d/b/a AB&H Construction, of P.O. Box 7112 Nikiski, Alaska 99635, (Parties of the First Part) and Ci ty of Seward, P.O. Box 167, Seward, Alaska 99664 (Parties of the Second Part), for the settlement of all claims, as well as to finalize/ resolve all past business dealings or contractual obligations between these parties and the purpose of this instrument is to confirm that agreement. WHEREAS: In consideration for the actions which shall be taken by the City of Seward, pursuant to the terms of this Agreement, as well as other good and valuable consideration, the receipt of which is hereby acknowledged, Alaska Boiler & Heat Exchanger Services, Inc., d/b/a AB&H Construction hereby agrees to waive/release all claims which it has against the City of Seward. WHEREAS: In consideration for the actions which shall be taken by Alaska Boiler & Heat Exchanger Services, Inc., d/b/a AB&H Construction pursuant to the terms of this Agreement, as well as other good and valuable consideration, the receipt of which is hereby acknowledged, City of Seward shall tender the total sum of TWENTY THOUSAND DOLLARS ($20,000.00) through a single check made payable to "Law Firm of Wade & De Young/In Trust for Alaska Boiler & Heat Exchanger, Inc". Said check shall be delivered to the Law Firm of Wade & De Young, 4041 B Street, Suite 200, Anchorage, Alaska 99503. WHEREFORE, .in consideration of the following mutual promises and representations, the parties hereby further agree as follows: A G R E E MEN T: 1. For and in consideration of the mutual promises and agreements herein contained, eity of Seward, on behalf of itself, its respective officers, directors, employees, agents, trustees, successors and assigns, does hereby release and discharge Alaska Boiler & Heat Exchanger Service, Inc. d/b/a AB&H Construction; National American Insurance Company; and Safeco Insurance Company of America; and their respective successors in interest and assigns, as well as all other persons, officers, directors, shareholders, principals, employees, agents, representatives, firms and corpora- tions who might be liable or be claimed to be liable, from all actions, causes of action, suits, controversies, claims, damages and demands of every kind and nature, arising from or relating to the SETTLEMENT AGREEMENT & MUTUAL RELEASE Page 1 of 4 . . . REMOVAL & DISPOSAL OF SLUDGE FROM LOWELL POINT SEWAGE LAGOON PROJECT and underlying contract relating thereto between the parties, as well as any causes of action premised on tort or otherwise. The eity of Seward also hereby ratifys the release of payment bond # NB 127790 and performance bond # NB 127790, which were provided through National American Insurance Company of P.O. Box 6616, Boise, Idaho 83707, relating to the subject project referenced herein. 2. For and in consideration of the mutual promises and agreements herein contained, Alaska Boiler & Heat Exchanger Service, Inc, d/b/a AB&H Construction, on behalf of itself, its respective officers, directors, employees, agents, trustees, successors and assigns, do hereby release and discharge the City of Seward, and its respective successors in interest and assigns, as well as all other persons, officers, directors, shareholders, principals, employees, agents, representatives, firms and corporations who might be liable or be claimed to be liable, from all actions, causes of action, suits, controversies, claims, damages and demands of every kind and nature, (including the time or manner in which payment & performance bonds referenced in paragraph 1. above were released by the City of Seward), arising from or relating to the REMOVAL & DISPOSAL OF SLUDGE FROM LOWELL POINT SEWAGE LAGOON PROJECT and underlying contract relating thereto between the parties, as well as any causes of action premised on tort or otherwise. 3. For and in consideration of the mutual promises and agree- ments herein contained, The City of Seward agrees and shall hold harmless, indemnify, and defend Alaska Boiler & Heat Exchanger Service, Inc., d/b/a AB&H Construction, its successors, assigns, principals, owners, shareholders, employees and agents from and against any claims, demands, and causes of action which may be brought by, federal, state, and/or local agencies (regulatory or otherwise); Seward Property owners; and/or other contractors which contracted with the City of Seward regarding the subject project; against Alaska Boiler & Heat Exchanger Service, Inc., d/b/a AB&H Construction arising from or relating to the REMOVAL & DISPOSAL OF SLUDGE FROM LOWELL POINT SEWAGE LAGOON PROJECT and/or the underlying contract between the parties. The City of Seward's obligations under this paragraph shall not apply to claims, demands, or causes of action which may be brought against Alaska Boiler & Heat Exchanger Service, Inc., d/b/a AB&H Construction, by Alaska Boiler & Heat Exchanger Service, Inc.'s suppliers/materialman, subcontractors, or employees which provided material/labor for Alaska Boiler & Heat Exchanger Service, Inc., d/b/a AB&H Construction, on the subject project. SETTLEMENT AGREEMENT & MUTUAL RELEASE Page 2 of 4 . . . 4. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, promises, representat- ions, warranties, contracts, and covenants, oral or written, relating to such subject matter. The fact that this Agreement may have been drafted in whole or in part by one party shall not cause all or any part of this Agreement to be construed against such party. 5. This Agreement shall be governed according to the laws of the State of Alaska. Any action or suit for the enforcement of any of the terms of this Agreement shall be brought in the appropriate Court wi thin the State of Alaska, Third Judicial District, at Anchorage or Seward, Alaska. In the event of any such action, the prevailing party shall be entitled to all costs and actual attorneys' fees incurred in the action except to the extent that the Court may determine such fees are not reaSonably incurred. 6. The parties agree that this Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any charge, action suit or other proceeding which may be instituted, prosecuted or attempted in breach of this Agree- ment. Any damages suffered by reason of any breach of any provision of this Agreement by the parties shall include reasonable attorneys' fees and other costs and expenses of instituting, preparing, pro- secuting or defending any action or suit resulting from breach of this Agreement, whether taxable or otherwise. 7. The parties hereto agree that this Agreement shall be binding upon their respective successors and assigns and shall inure to the benefit of all entities released hereby. 8. The parties hereto hereby each acknowledge, represent, and warrant that each has not voluntarily or involuntarily assigned, transferred, conveyed, sold, bargained, given or granted all or any part of any claims or contractual rights which each may have, invol ving or relating to parties which are being released on the basis of this Agreement. 9. The undersigned acknowledge that each of the parties has been advised of, or are familiar with, the decisions of the Alaska Supreme Court in the cases of Witt v. Watkins, 579 P.2d 1065 (Alaska 1978); Youna v. State, 455 P.2d 889 (Alaska 1979), and Totem Marine Tua and Barae v. Alyeska Pipeline Services Company, 584 P.2d 15 (Alaska 1978). It is the undersigneds' true intent and desire herein to fully release (as fully as though each were specifically listed and named herein) all individuals, firms, sureties, corporations, or entities that could, at any future date, be possible defendants, SETTLEMENT AGREEMENT & MUTUAL RELEASE Page 3 of 4 . . . counterdefendants, cross defendants, or third-party defendants in any legal suit, action, litigation, arbitration, or proceeding whatsoever arising out of the transactions referenced herein, including but not limited to the project and contract referenced herein, which form the basis for this Agreement. It is the undersigneds' true intent and de- sire to fully and forever release the parties referenced herein, from any and all obligations, responsibilities, and liabilities arising out of the transactions which form the basis for this Agreement, re- gardless of whether or not such obligations, responsibilities, and/or liabilities are subsequently discovered or are different in degree or kind than have been or are now alleged, known, or anticipated. The undersigneds understand that this settlement is in compromise of disputed claims and that the payment recited above is not to be con- strued as an admission of liability on the part of the persons and entities making such payment, by whom liability is expressly denied. 10. The parties acknowledge that they have reviewed the terms of this Agreement with their respective attorneys; that they have read this Agreement and understand it; that their respective attor- neys have advised them as to its legal effect; and that they have voluntarily executed it with full understanding of its consequences. 11. Each party who or which executes this Agreement, either individually or through its authorized agent, attorney, or represen- tative, has carefully read it, thoroughly knows and understands the contents, consequences and meaning of it, and executes and delivers it as their free, knowing, and voluntary act and deed. Each signa- ture on behalf of a corporation or the City of Seward, as referenced below shall act as a material representation that the person signing on behalf of said corporation or City of Seward is doing so with the authority and permission of said corporation or the City of Seward. 12. This Agreement shall be effective when all parties to this Agreement have executed it. CITY OF SEWARD DATED: By: Its: ALASKA BOILER & HEAT EXCHANGER SERVICE, INC. d/b/a AB&H CONSTRUCTION DATED: By: Its: SETTLEMENT AGREEMENT & MUTUAL RELEASE Page 4 of 4 . . CITY OF SEWARD, ALASKA RESOLUTION NO. 93-085 Section 2. The City Council approves payment in the sum of $20,000 to AB&H, constituting a sum in addition to amounts previously paid by the City of Seward to AB&H on the basis of undisputed records, as full settlement. Section. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 14th day of June, 1993. AYES: NOES: ABSENT: ABSTAIN: A TIEST: THE CITY OF SEWARD, ALASKA ~C1JK? u..9. O~ Dave W. Crane, Mayor Bencardino, Crane, Darling, Krasnansky, Sieminski, Swartz, White None None None APPROVED AS TO FORM: Wohlforth, Argetsinger, Johnson & Brecht, Attorneys for the city of Seward, Alaska . (City Seal) ~;~ City Attorney