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HomeMy WebLinkAboutRes1987-044 . . . Sponsored by: Arvidson CITY OF SEWARD, ALASKA RESOLUTION NO. 87-044 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROPRIATING FUNDS FOR SETTLEMENT OF THE WAUSAU V CROWLEY CONSTRUCTORS, ET. AL. CLAIM WHEREAS, the Seward City Council has agreed to partici- pate in a settlement of the Wausau ~ Crowley Constructors, et. al., claim; and WHEREAS, the settlement agreement, attached and incor- porated herein by reference, requires payment of $50,000 by the city of Seward in full and final settlement of all claims by and between all parties thereto; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to appropriate the sum of $50,000 from the General Fund-Fund Balance Account No. 101-000-271-00-00 to the Claims Contin- gency II Capital Projects Account No. 258-000-368-04-00. Section 2. The City Manager is further authorized to issue a check in the amount of $50,000 payable to Guess & Rudd Trust Account in settlement of the claim hereinabove mentioned. Section 3. This resolution shall take effect immedi- ately upon its adoption. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 15th day of June , 19 87 . THE CITY OF SEWARD, ALASKA AYES: NOES: ABSENT: ABSTAIN: GIESELER, HILTON, MEEHAN AND NOLL NONE BOOHER, DUNHAM AND SIMUTIS NONE -1- . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 87-044 ATTEST: (City Seal) APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Attorneys for the City of Seward, AK 7~J1/~ Fred B. Arvidson City Attorney -2- . '~~~i..m AGREEMENT ,.~. ~, ~o., ~II SE'l"l'LEMENT AGREEMENT AND MUTUAL RELEASE CLAIMS (.Settlement Agreement.) is made and entered into this 24th day of May, 1987, by and among Employer's Insurance of I Wausau (.Employer's.), (Plaintiff in Cause No. AS5-154 Civill; Crowley Constructors, Inc. , Def endants and Third-Party Plainti ffs in Cause Nos. AS5-154 and A85-204 Civil, and Plaintiff in Cause No. A85-368 Civil, now consolidated as AS5-154 Civil (hereinafter referred to as "Crowley.); Pacifi~ Erectors, Inc., (hereinafter referred to as "Pacer"), Plaintiff in Cause AS5-36S, use-Plaintiff in 1.85-204 Civil, and Defendant i and Third-Party Plaintiff in Cause AS5-154 Civil, all of which I are now denominated as A85-154 Civil (Consolidated); Acres : i International, corp., Hanscomb" Associates, Inc., and Acres/ \ ,I Hanscomb' - Joint Venture, Defendants and Cross-Claimants in " 'I Cause No. A85-154 Civil (Consolidated), (hereinafter referred to . as "Acres/Hanscomb" - Joint Venture"); Pearlson Engineering Co.. Inc., Defendant in Cause No. A85-154 Civil (Consolidat-e'] properly now denomi n.a t ad a3 NEI Syncroli ft. herei naEter ref ,'c' to as ("Pearlson"); and the City of Seward, Alaska, Defendant l~ Cause No. A85-154 Civil (Consolidated), hereinafter referreu as ("City"); and &merican Insurance Co., Defendant in Cause A85-204 Civil (C:onsolidated) , hereinafter r,?ferred tel ("American") . RECITALS Pearlson contracted with the City of Seward to provide shiplift components, i nd udi ng the sheave hous i ngs , J.n installation manual, and design drawings for construction of the ilhiplift faciLity at the City's Fourth of July Creek Manne - 1 - SETTL~ENT & RELEASE AGREEMENT . /' 1 II .. ....A.,.... Induatrial Park. Crowley contracted with the City to fabricate t_..~ and install the shiplUt system. Crowley also ~ suppl~, t~ platform steel used on the project. Pacer _,;,.' .1l,......~.. contracted with Crowley to provide the steel erection and welding for the shipli ft. The City selected Acres/Hanscomb - Joint Venture, to serve as project administrator of this project. Employer's was the builder's risk insurer for Crowley and certain other parties under Employer's policy No. 0664 00 040211. The parties hereto desire to enter into this Settlement Agreement 1n order to provide for certain payments in full settlement and discharge of all claims against and between all I parties hereto which were raised or I 'I could have been raised in the causes described aboved relating in any way to the design, construction and testing of the Seward shiplift project and/or claims under Employer's Builder's Risk Policy No. 0664 00 040211 (hereinafter, the "Released Claims"), with the exception of the claims descrlbed in paragraph 6 herein, upon the following teL'S and conditions: 'I 1. Release and Dlscharge. In consideration of the payments called for herein, the part1es hereto completely release and forever discharge the Released Cla1ms and release as well all claims against all otner parties and their past, present and future officers, dlrectors, stockholders, insurers, attorneys, agents, servants, representatlves, employees, subsidiaries, affiliates, related companies, predecessors and successors in interest, as well as any parties wh,ch were or could have been named in any complaint aris1ng frcm the Released Claims on the Seward shiplift as above-described from any and all past, present or future clalffis, - a - SETTLEMENT & RELEASE AGREEMENT /' ~ . ,- I': . . . " ~D_, ~lptio9, action., caue. of' action., and -, ~ether in law or in equity, whether Msed in ~~ tin, or other theory at recovery and whether for 'oS" '" compensatory or other damages (including all claims for bsd faith, breach of the covenant of good faith and fair dealing, extra contractual damages of any kind, contribetion or indElllni ty, which were or may have been asserted against any party by any of the parties heretol, on account of~ or in any way arising from the Released Claims, and/or claims handling' "'I activities by Employer's including, without limitation, any ana , " Ii all known or unknown claims for contribution, indemnity damages, II consequential damages or other damages including bet not limited i I I , to direct and indirect damages which have resulted or may result ' from the Released Claims on the Seward shiplift. This Settlement Agreement embraces all damages incurred by any party hereto whether or not greater in amount than currently known by the parties, which damages in any way at"," from the Released Claims. 2. Payments. In consideration of the Release set forth abc~e, E.mployer' s, releases and discharges Crowley and Pacer from .Iny obligation to repay or reimburse or return the loan or adva~~e of Four Hundred ~inety-eight Thousand Dollars ($498.000.00) principal amount, or any interest thereon, made to Crowley ,~~ Pacer pursuant to the loan agreement dated August 16, 1984. " 'i Crowley agrees to accept the sum of Three Hundred Twenty-five Thousand Dollars ($325,000.00) less Forty-eight Thousand Do:11rs ($48,000.00) previously advanced by Employer's " il1 full and fi"al satisfaction of any and all claims against all - :1 - 'I I I SETTLEMENT , RELEASE AGREEMENT Ii :~ /' ..----, - #;:?':T"'~':' .. . " "';'~~i<- ~"~~''';",::_,,;,,:~t,~ '''-'~''. .-,'..'-\11"".--....-.'-- .......~' . '. ~j .:~..~~;~_;- ~~~,_~~~:~_~~~:~'..,.:~.., co,.._\. ., "~-'.,-,,-:,{ J~':?'!','.,:'~~~-"'-j' partie. hereto. Pacer agree. to .ccept the sua of Seven Hundred PiftY' 'l'hoWl&nd Dollars ($750,000.00) less Four Hundred Fifty f I Thou.and Dollars ($450,000.00) previously advanced by II Employer 's, in full and final settlement of all clailllll against I all parties hereto. The amount of Three Hundred Thousand Dollars ($300,000.00) shall be paid to Pacer, and the sum of Two Hundred :! Seventy-seven Thousand ($277,000.00) shall be paid to Crowley, ' such sums shall be contribl1ted by the parties in the following I: amounts: " " " " , I A. The City of Seward shall pay Fifty Thousand Dollars ($50,000.00l in full and final settlement of all claims I' by and between all parties hereto. I, B. pearlson shall pay One Hundred Sixty-three 11 Thousand Five Hundred Dollars ($163,500.00) in full and final settlement of all claims by and between all parties hereto. c. Acres/H3.oscornb-r - Joint 'len"'.ure shall contriGc: One Hundred Sixty-three Thousand ?l.':e Hundred Dol ~ ($163,500.0J) in full and fin1:' 3ettl:;~;le::':". .J: ~ll c:lai;i',s 81 between all partles hereto. D. E:nr/1oY0r's shal~_ :::ontribL1":e ~"~]() HU,:.d~ed T~o_!s_. Dollars ($200,O~O.OO) in full and final settle~ent of all cl~i by and between all p~r~ies hereto. For t~~ purpose of f:~~pediting p3.yment :'0 the par'::' ~ and to permit t.,e cunds to be apportioned between Crowley 3nd Pacer as set forth ahove, the settlement monies contribl1ted ~: the C:ity of Seward, Pearlson, Acres/Hanscomb' - Joint Venture, and Em~loyer'9 shall be made payable by certified check drawn to trust account established by Guess & Rudd, attorneys c" a i ~ " :i Acres/~an3co~~' - Joi nt Venture. The trust monies shall ',' 'I , - 4 - II SETTLEMENT , RELEASE AGREEMENT II /' 11 ! I "--~" -.-.-....-........ . . . , '''''.'~'''''.'''''':'..' '".... ",_~,' .,' .' :~""..r-'''';. ..' _r '~..". .~". . . _ A ; F~~ .,~':~ . _.~ ,,:"~',-~~~~-:-: Crowley and Pacer in the amount. torth upon receipt. by Gue.. , Rude! of all tunela Pn>>vi4H for abclve. 3. Attornevs' Fees. Each party hereto shall bear all attorneys' fees and costs arising from the Released Claims and this Settlement Agreement and the matters and documents referred to herein and in all related matters. This applies to all fees and costs whether incurred pr ior or subsequent to institution of litigation in this matter. 4. Execution Of Settlement Agreement And Mutual Release Of All Claims. The parties hereto represent and warrant that t~e I signatories hereto are fully and duly authorized to execute this " Settlement Agreement and to receive the sums specified therei n I and that they have not sold, assigned, transferred, conveyed or otherwise disposed of any of the clai'1\s, d"mands, obligatlc'" or causes of action refeered to in this Settlement Agree:nenc, The parties hereto represent and warrant tnat no other perseo ~_ " entity has or had any interest in the claims, demands, obliga- tions or causes of action referred to in this Settlerrec.c I\geeement. 5. Disclaimer of Liability, All parties agree and acknowledge that Crowley an~ Pacer accept pay"'ent of the selms specified in this Settler.1er:: ,', Agreement as a full and complete compromise of all matters involving disputed issues; that neither payment of the sUmS b'l the parties hereto nor the negotiations pertaining to this setlc 1 """ent ,I I! ( including all statements, admissions, - 5 - !!e~~L~eNT & RELEASE AGREEMENT ;' ... or ~ tbe .,~'~~:09~ ,j bereto or tbeir attorney. ) .hall be conddered a. an a&ahdon by any of. and that no pa.t or pre.ent admi..ion of liabtlity .hall be implied by such payment or such neqotiationa, the same being expre.sly denied. 6. Electrical Claims. The parties hereto acknowledge that all of the Released Claims set forth above have been settled and fully compromised. This Settlement Agreement in no way compromises or in any way effects that portion of Cause No. A85-204 and/or A86-540 Civil, relating to electrical claims of Newbery Alaska against Crowley, American, and Seward, and the electrical claims of Crowley against Seward and Newbery as alleged in those actions or the liability of any party arising from those electrical claims. I! ,! 7. Insurance Issues Decision. All parties hereby stipulate that: the decision or United States District Court Judge H. 'h.:ssel Holland in C~_,.' No. A85-154 Civil (Consolidated), per':ai:1ing to the insur,- issues raised by certain summary judgment motions of the partl~s hereto may be withdrawn subject to the agreement of Jc:";. Holland to accomplish this task. Further, the parties ner .,:C will jointly stipulate to ask Judge Holland not to publish t~;; opinion; however, the decision on publication remains within ~,1" Court's prerogative. The Courts decision on whether to act ." accord with this stipulation shall not affect the validity of this agreement. 8. Effect Of Execution Of Settlement Agreement And Mutual Release Of All Claims. In addition to binding the parties hereto as set forth , " - 6 - 'I :i I' SBTTLEMENT , RELEASE AGREEMENT II I[ ,~ It ;.w. .~:1- :., ..:' .;0.,.1 .. .~~~/~tlt:'i :~!~r , ',;. ~..... ~~ :" -~_. . party to acknowledge and su~it to the this Court with respect to any breach or dispute arising from the execution of this Settlement Agreement. Purther, execution of this Settl_ent Agreement shall have the effect of constituting a judgment against the parti.. executing this agreement and in the event the settlement funda or other provisions of this agreement are not complied with within thirty (30) days from the date hereof, or this agreement is otherwise breached, a judgment sub1ect to execution shall be entered against the offending party in accordance with this agreement. 9. The Entire Agreement And Successors In Interest. This Settlement Agreement executed herein contains the entire agreement between the parties hereto with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. . 10. Additional Documents, Stipulation To Dismiss ilith Prejudice. i 'i i execute any and all supplementary documents All parties hereto have agreed to cooperate fully and i nel udi ng but not " " limited to a stipulation to dismiss all claims of the par~ies , hereto with prejudice and to take all additional actions which 'i may be necessary or appropriate to give full force and effect to , the terms and intent of this Settlement Agreement. i " 11. Controlling Law. This Settlement Agreement is entered into in the State i: i! of Alaska and s'hould be construed and interpreted in accordance , with the laws of the State of Alaska. . - 7 - SETTLEMENT & RELEASE AGREEMENT .r~' ~~.,- ,- ..~~. ,. Ii .~' ~.~~~~ ,:. ~ r-!~r'~~~:~ ~ . . ''Y';' '.~ ,. , - of the .igaatori.. r.pr...nt. and warrant. that it a.iliar with and und.r.tanda the applicability of Tot.. Mar in. Tu Service Co. et al., 58~ P.2d 15 (Ala.ka 19781. In making any rel.... contained in this agreement, ..ch signatory specifically intends to assume all risk that a claim or cause of action released and the damages caused thereby are or may be greater or more extensive than is now known, expected or possible of anticipation; and represents and warrants that it has freely and voluntarily chosen to enter this agreement from among several alternatives , available to it. :1 Each signatory acknowledges that the litigation as presently constituted imposes some degree of economic duress on each of the signatories; however, each signatory desires to ensure that this Settlement Agreement is valid, enforceable and not voidable on the grounds that the Settlement Agreement was entered under duress. Each signatory represents and warrant~ that any existing duress is not such as to allow it to "'lcoi' this Settlement Agreement and that it shall make no attempt to void this Settlement Agreement on such grounds. Each signatory specifically recognizes that the other signatory may reasonably rely upon a,d wiJ.l rely to its substantial detriment upon s'~ch representation and warranty. Each signatory knowingly and voluntarily waives all rights to avoid this Settlement Agre~~~nt or any of its obligations hereunder based upon any of the principles recognized in Totem Marine Tuq & Barqe v. Alyeska Pipeline Service Company, et al., 58~ P.2d 15 (Alaska 1978), or ! any similar principle of law or equity; it being absolutely essential to the making of this Settlement Agreement and the " subs~antial changes in position to be made in reliance upon this i' jI II SETTLEMENT , RELEASE )1; :o.i~* - 8 - AGREEMENT -' .', ~, ;;';;r-~~~'~. ~,. ~_~ . +~~,.r,:., - .....,., . , f that there N ao cbal1eDfe- to; tbb and no furth~ litigation bltw..n .. <'~J".~~J>-i>1' d~l~l'~ concerning any clai. or cala. of action r.l....d or dismis.ed by this S.ttlem.nt Agreem.nt. 13. Effective Date. This Settlement Agreement shall becOtlle effective immediately following its execution by all of the parties. The parties hereto which are responsible for malting payment under the terms of this Settlement Agreement shall have thirty (30) days from the date of the execution hereof to comply fully with the terms of payment; and Guess . Rudd shall disb~rs. the funds from this trust account as soon as reasonably practicable after receipt of such payments as provided for herein; the recipients of settlement monies shall immediately execute the necessary stipulation for dismissal with prejudice. . IN WITNESS WHEREOF, the parties hereto have exe-::,,:, '2" ,;;( 0 WI and entered into this Agreement as 071MaY'24, 1987.' ' , :1 'S WSURA:1CE OF WAUSAU i' DATE: ~ --- )ll - 87 BY: CROWLEY DATE: I:, ::- - 2-1' -.:;)"7 " Ii :1 , 'Ii DATE: ,---2 /~r31 . I ;BTT~IM.N~ . R.L&AS& AGRBEMBNT " r ,,,,:.- "" .. I ~ .' /' -~."::'t.' ""'~...... j. -"_..t.- ~_.lc". BY: ~~~~ Ita Attorney , Autborized Agent DATE:~~ .z~ /~&'? 2: It? ~.n ACRES INTERNATIONAL CORPORATION HANSCOMB ASSOCIATES, INC. ACRES/HANSCOMB - JOINT VENTURE ." ~~E4~ 'Its Attorney' utborlzed Agent PEARLS ON ENGINEERING CO., INC. DATE:~? 24, /f8? .2.' I <? ill, p? /~~.., CITY OF SEWARD J\!lan.t I " I I , ('11., 2~, 1'~7 2' 2.:> a_. BY: --k:A, ::::;::::.- Its Attorney' Authorized Agent DATE: 'I Ii ii :i i: :i , I il - 10 - " :1 S8TTL~8~T 8 ~LEASB AGREEMENT II II , , ,'~:- -' u ~':~':~r '.'.',' " ,-~? ,~- "_ ~ .1<._....__. ,+ .:t.:z ~6. r/',::~_ ~~ .' .:' .~:~..*'; -:.';...., :1 .~ U.q .-,*.:~ ..~~ - _ '",..";;.-. :__,;<~'~' _~-'~I(V: '~v.;' ~_"_ _~. ..--.-__