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HomeMy WebLinkAbout18- Settlement Agreement - City of Bozeman v. McAlvain Civil Contractors, et al. and McAlvain v. Wymont Construction, Inc. et al. SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement") is effective the day loth of May, 2018, by and among the following parties: • Plaintiff, City of Bozeman(the"City); • Plaintiff, Defendant, and Third Party Plaintiff, McAlvain Civil Constructors, Inc. ("McAlvain"); • Defendant, Travelers Casualty and Surety Company of America ("Travelers"); • Third Party Defendant, HDR Engineering, Inc. ("HDR"); • Third Party Defendant, Morrison-Maierle, Inc. ("MM"); • Defendant and Third Party Defendant, WyMont Construction, Inc. ("WyMont"); and • Defendant and Third Party Defendant, Headwater Lining, LLC ("Headwater"). The City, McAlvain, Travelers, HDR, MM, WyMont, and Headwater are referred to collectively in this Agreement as the"Parties". I. RECITALS A. In Cause No. DV-12-601A, McAlvain filed a Complaint against WyMont and Headwater (hereafter referred to as "McAlvain Litigation") for breach of contract related to the August 3, 2010, Subcontract Agreement No. S210001-12 Concrete Embedment Liner (hereafter "Subcontract Agreement") between McAlvain, WyMont and Headwater. The Subcontract Agreement related to work to be performed by WyMont and Headwater regarding the supply and installation of a HDPE concrete protection embedment liner (hereafter referred to as "Work"). As Settlement Agreement Page 1 of 9 part of this litigation, McAlvain sought damages arising out of the claimed breach of the Subcontract Agreement and WyMont and Headwater's failure to perform their Work under the Subcontract Agreement in a workmanlike manner. Additionally, McAlvain sought attorneys' fees and costs. B. In Cause No. DV-16-552A,the City filed a Complaint against McAlvain(hereafter "City Litigation") seeking, among other things, liquidated damages arising out of the work performed under the contract dated April 5, 2010 for the construction of Bozeman WRF Digester No. 3 and Solids Dewatering Building Project, C. McAlvain filed a Third Party Complaint against HDR and MM alleging negligent design and engineering work relating to the Digester 3 Tank. D. McAlvain filed a Third Party Complaint against WyMont and Headwater seeking, among other things, contribution and indemnity for damages arising out of negligent and defective workmanship relating to WyMont and Headwater's Work wider the Subcontract Agreement in the Digester 3 Tank. E. The City filed a First Amended Complaint against Travelers seeking, among other things, damages arising out of the Unfair ClauzLs Settlement Practices Act. F. The claims brought in the McAlvain Litigation and the claims brought in the City Litigation are collectively referred to in this Agreement as the"Claims". The Parties now wish to compromise, resolve,settle and tenninate the Claims according to the terms set forth below. H H Settlement Agreement Page 2 of 9 11. TERMS OF SETTLEMENT 1. Consideration and Payment Terms For good and valuable consideration, including the payments outlined below in fiill satisfaction of the Claims, the Parties agree as follows: McAlvain, HDR, MM, WyMont, and Headwater and/or their respective liability insurers, shall pay, collectively, to the City, the total sum of$1 million dollars payable as follows: a. The payment by McAlvain consists of two components: (i)the release and disclaim by McAlvain of the withheld payments and retainage under the contract for the Digester 3 Tank. That amount is $547,207.43; and (ii) a cash payment in the amount of$202,792.57. b. The sum of$125,000.00 by WyMont and Headwater; c. The sum of$75,000.00 by MM; and d. The sum of$50,000.00 by HDR. The cash payments shall be made by each party within 30 days of the date of this Agreement, and by company check to the City, mailed to the address of the City's counsel of record in the City Litigation. Failure of a party to make the payment or perform any other term of this Agreement shall not invalidate this Agreement as to the other parties. 2. Release of Citv Litiution For and in consideration of the payments set forth in Section 1 above, the City and McAlvain waive, release and forever discharge each other, Travelers, HDR, MM, WyMont, and Headwater their agents, heirs, officers, directors, shareholders, employees, subcontractors, suppliers, successors and assigns, predecessors, related companies, insurers, and attorneys from any and all claims, demands, damages, liabilities, causes of action and the like, liens, or claims or lien, whether asserted or unasserted, known or unknown, foreseen or unforeseen, in contract or in Settlement Agreement Page 3 of 9 tort, arising on account of, or in any way growing out of, related to,or connected with the Claims, including without limitation, the withholding of payments and retention for work on the City of Bozeman Water Reclamation Facility Digester No. 3 and Solids Dewatering Building Project. Notwithstanding any of the foregoing, McAlvain has filed suit against the Cincinnati Insurance Company in the Butte Division of the United States District Court for the District of Montana, Cause No. CV-17-085. McAlvain does not release and expressly reserves all claims or causes of action against the Cincinnati Insurance Company. 3. Release of McAlvain Litigation For and in consideration of the payments set forth in Section 1 above, McAlvain waives, releases and forever discharges WyMont and Headwater their agents, heirs, officers, directors, shareholders, employees, subcontractors, suppliers, successors and assigns, predecessors, related companies, insurers, and attorneys from any and all claims, demands, damages, liabilities, causes of action and the like, liens, or claims or lien, whether asserted or unasserted,known or unknown, foreseen or unforeseen, in contract or ul tort, arising on account of, or in any way growing out of, related to, or connected with the Claims, including without limitation, WyMont and Headwater's Work on the City of Bozeman Water Reclamation Facility Digester No. 3 and Solids Dewatering Building Project. Notwithstanding any of the foregoing, McAlvain has filed suit against the Cincinnati Insurance Company in the Butte Division of the United States District Court for the District of Montana, Cause No. CV-17-085. McAlvain does not release and expressly reserves its claims or causes of action against the Cincinnati Insurance Company. 4. Dismissal of Civil Actions The City and McAlvain each agree to cause their respective attorneys to dismiss, with Settlement Agreement Page 4 of 9 prejudice,the Claims upon payment of the amounts set forth in Section 1 above,each party to bear their own attorney's fees and costs. It is fin-ther intended and understood that McAlvain reserves its claims against the Cincinnati Insurance Company, and McAlvain will not dismiss its pending lawsuit against the Cincinnati Insurance Company pursuant to this Settlement Agreement. 5. Future Damages Because the injuries, damages,and losses arising fi-om the events pertaining to the disputes describe in this Agreement may not be fully known and may be more numerous or more serious than now understood or expected, the Parties agree, as a fiirther consideration of this Agreement, that this Agreement applies to any and all injuries,damages and losses directly or indirectly related to the Claims, even though now unanticipated, unexpected and unknown, as well as any and all injuries, damages and losses which are now known or anticipated or should reasonably be known or anticipated. This section does not apply to the claims against Cincinnati Insurance Company not released by McAlvain set forth in Section 2 and Section 3 above. 6. No Additional Claims Except as otherwise stated in this Agreement, each party represents and warrants that no additional claims are contemplated by any of the undersigned against any other party for the losses and damages for which this Agreement is given. In the event any party to this Agreement makes an additional claim that directly or indirectly results in additional liability exposure to the other party for the losses and damages for which this Agreement is given, the party making such a claim covenants and agrees to indemnify and save the other party harmless from all additional claims and demands, including attorneys' fees and all other expenses necessarily incurred. Notwithstanding any of the foregoing, McAlvain has filed suit against the Cincinnati Insurance Company in the Butte Division of the United States District Court for the District of Settlement Agreement Page 5 of 9 Montana, Cause No. CV-17-085. McAlvaui does not release and expressly reserves its claims or causes of action against the Cincinnati Insurance Company or any affiliated or related entities arising on account of, or in any way growing out of, related to, or connected with the Claims described in this Settlement Agreement. McAlvain agrees to indemnify and save the other parties to this Agreement harmless from any additional claims and demands, including attorneys' fees and all other expenses necessarily incurred, as a result of its suit against Cincinnati Insurance Company. 7. No Admission Neither this Agreement,nor the fact of signing the Agreement, shall be taken or construed as an admission on the part of the Parties of any liability or wrongdoing of any kind or nature. All such liability is expressly denied. This Agreement is entered into for the purpose of ending the litigation. 8. Joint Authorship This Agreement is the product of the negotiations of the Parties. By virtue of the signature of all parties, this Agreement shall be deemed to have been drafted by all parties jointly, and any ambiguity in this Agreement shall not be construed for or against any party. 9. Disclaimer The Parties state that they have carefully read this Agreement, have had the opportunity to discuss with counsel the contents of this Agreement, and that they sign this Agreement voluntarily, it being their intention to be legally bound by this Agreement. 10. Authorization The undersigned represent that they have the requisite authority and are authorized to execute this Agreement on behalf of the party for which they are signing. This Agreement shall Settlement Agreement Page 6 of 9 be binding upon and inure to the benefit of the Parties and their respective agents, administrators, representatives, attorneys, successors and assigns. It. Severabilitv Tile invalidity of any one or more of the covenants, phrases, clauses, sentences or paragraphs of this Agreement shall not affect the remaining portions of this Agreement, and in case of any such invalidity,this Agreement shall be construed as if such invalid covenants,phrases, clauses, sentences or paragraphs have not been inserted. 12. Binding Effect This Agreement is binding upon and inures to the benefit of, the Parties, their heirs, executors, administrators, successors and assigns. 13. Attornevs' Fees and Costs In the event any party brings suit to enforce any term or condition of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and disbursements reasonably incurred therein. 14. No Effect on Indemnity Rights as Between Travelers and McAlvain McAlvain and Travelers agree that this Agreement does not operate as a waiver, release, or modification of Travelers' indemnity rights as against McAlvain and/or its Indemnitors (collectively the "Indemnitors"), under the law, in equity or otherwise, including, but not limited to, those arising pursuant to any General Agreements of Indemnity ("GAI"), including the GAI executed by the Indeirmitors on or about August 31, 2010, September 1, 2010 and September 2, 2010, all of which rights are expressly reserved. // Settlement Agreement Page 7 of 9 15. Entire Agreement Except as expressly provided herein, this Agreement sets forth the entire integrated agreement relating to the matter contained in this Agreement and supersedes all prior and contemporaneous oral or written promises, representations, or negotiations relating to this Agreement. There have been no representations or agreements that have induced any party to enter into this Agreement other than those set forth in this Agreement. This Agreement may not be amended or modified except by another written instrument signed by the Parties. 16. Counterparts This Agreement may be executed in counterparts and shall be effective immediately upon exchange of counterpart signatures by facsimile, electronic mail (scanned) or otherwise. 4ti Dated this day of , 2018. -M QP C City of Bozeman Tim Cooper, Assistant City Attorney Dated this_day of . 2018. i i ff McAly n Civil Constructors, Inc. Dated this day of-MA 2018, 1 Travelers Casualty and Surety Company of America }+ i Settlement Agreement Page 8 of 10 I( I 15. Entire Agreement Except as expressly provided herein, this Agreement sets forth the entire integrated agreement relating to the matter contained in this Agreement and supersedes all prior and contemporaneous oral or written promises, representations, or negotiations relating to this Agreement. There have been no representations or agreements that have induced any party to enter into this Agreement other than those set forth in this Agreement. This Agreement may not be amended or modified except by another written instrument signed by the Parties. 16. Counterparts This Agreement may be executed in counterparts and shall be effective immediately upon exchange of counterpart signatures by facsimile,electronic mail(scanned)or otherwise. Dated this—day of ,2018. City of Bozeman Tim Cooper,Assistant City Attorney Dated this—day of ,2018. McAlvain Civil Constructors,Inc. Dated this eday of 2018. Travelers Casualty and Surety Company of America Settlement Agreement Page 8 of 10 Dated this Z-6jday of Nlu ,2018.. WR rnghicering,Inc. Dated this_ day of ,2018. Morrison-Maierlo,Inc. Dated this day of 12018. Joe Mungas, Wyniont Construction,Inc. & Headwater Lining, LLC Settlement Agreement Page 9 of 9 Dated this—day of , 2018. HDR Engineering, Inc. Dated this 14 day of May , 2018. r u - -%&, Morrison-Maierle, Inc. Dated this—day of_______, 2018. Joe Mungas, Wymont Construction, Inc. & Headwater Lining, LLC Settlement Agreement Page 9 of 9 Dated this_day of , 2018. HDR Engineering, Inc. Dated this_day of ,2018. Morrison-Maierle, Inc. Dated this 10 day of 2018. Joe Mungas, Wymont Construe ion, Inc. & Headwater Lining, LLC Settlement Agreement Page 9 of 9