Loading...
HomeMy WebLinkAbout06- Olympus, City & Morrison Maierle SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN: Olympus Technologies Incorporated, an Oregon corporation ("OTI") c/o Scott G. Bassinger Bassinger & Kim 1200 Executive Parkway, Suite 320 Eugene, Oregon 97401 AND: City of Bozeman, a Political Subdivision of the State of Montana ("City") c/o Patricia Day-Moore City of Bozeman City's Attorney Office P.O. Box 1230 Bozeman, MT 59715-1230 AND: Morrison Maierle, Inc., a Montana corporation (" M M I") c/o Neil G. Westesen Crowley, Haughey, Hanson, Toole & Dietrich P.L.L.P. 45 Discovery Drive, Suite 200 Bozeman, MT 59718 EFFECTIVE DATE: February 6, 2006 RECIT ALS A. On January 28, 2003, OTI shipped four anaerobic digester mixers ("mixers") to the City. The mixers were placed into operation at the City's wastewater treatment plant. B. In August 2005, the City's wastewater treatment plant superintendent notified OTI that he observed heavy contamination in the purged oil in one of the mixers ("suspect mixer"). OTI removed the suspect mixer and observed a 27 foot rag wrapped around the shaft housing at the lower bearing/seal cartridge just above the propeller. C. OTI transported the suspect mixer and a second operable mixer to its Eugene facility for evaluation. OTI's evaluation revealed that the oil of the suspect mixer was not contaminated but was discolored. OTI contends that the discoloration was due to excessive heat caused by the rag wrapped around the shaft housing which acted as an insulation layer preventing heat from disbursing. MMI disagrees that the rag wrapped around the shaft housing was the reason for the excessive heat. D. The City contends that the mixers do not conform to specifications and that the mixers are defective. OTI denies the contentions. E. OTI asserts that the City failed to maintain the mixers as required by OTI's maintenance manual and that the City failed to prevent uncharacteristic debris from interfering with the mixer operation. The City denies the assertions. Page 1 - Settlement Agreement and Mutual Release F. OTI designed the mixers to operate at liquid levels as specifically designed by MMI. OTI contends that the actual liquid levels were below the levels specified and required by OTI's design. OTI further contends that these conditions caused damage to the mixer's lower bearing and seal cartridge. MMI agrees that the liquid levels were below specified levels, however, MMI disagrees that the liquid levels caused the damage to the mixer. G. MMI contends that OTI's lubrication system failed to meet the design specifications for oil lubrication and lubrication system as originally provided contributed to the damage sustained by the mixer. OTI denies the contentions. H. The City has an outstanding account balance with OTI in the sum of $26,342.39. I. OTI, the City and MMI desire to resolve all claims between them, known or unknown, on the terms and conditions contained hereinafter. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals which are by this reference expressly made a part hereof, and in consideration of the mutual terms, covenants and conditions hereinafter contained, the parties agree as follows: 1. REPAIRS. OTI will disassemble the two mixers currently located at OTI's facility in Eugene, Oregon. OTI will replace any seals or bearings in the lower cartridge that show signs of wear and reassemble the mixers. 2. INSTAllATION. OTI, at its expense, will ship the mixers to the City and supervise installation of the mixers in the draft tubes on March 16, 2006. On said date, the City, at its expense, will have a crane and crane operator available to OTI to hoist the mixers from the carrier and place the mixers in the draft tubes and the City will have personnel available to install the mixers. 3. RELEASE. The parties, their predecessors, successors, assigns, attorneys, insured and agents, hereby irrevocably release and forever discharge the parties, their successors and assigns, from any and all causes of action, suits, debts, sums of money, accounts, bills, covenants, contracts, controversies, agreements, promises, damages, judgments, expenses, executions, claims, losses and demands of whatsoever nature in law or in equity or otherwise, whether known or unknown, suspected or unsuspected, existing or occurring before the Effective Date and through and including the Effective Date, claims related to the above recitals and claims related to the mixers arising after installation of the mixers by OTI, including, but not limited to any and all warranties, whether expressed or implied. 4. CONSIDERATION. In consideration of this agreement, the parties have agreed as follows: 4.1 The mutual release of each party's claims against all other parties and in accordance with and in terms of this agreement and the promises contained herein. 4.2 The sum of $6,300.00 in immediately collectible funds shall be paid by the City to OTI c/o Scott G. Bassinger, Bassinger & Kim, 1200 Executive Parkway, Suite 320, Eugene, Oregon 97401 on or before February 17, 2006. Failure of the City to timely pay the $6,300.00 to OTI as provided in this section shall constitute a material breach of this Page 2 - Settlement Agreement and Mutual Release Agreement, thereby discharging OTI's obligations to repair and install the mixers as set forth in Sections 1 and 2 and OTI will ship the mixers to the City at its expense. MMI agrees to pay the City the sum of $6,300 in immediately collectible funds as additional consideration for the releases contained in this Agreement. 5. COVENANT NOT TO SUE. It is hereby expressly agreed by each party that they will not commence, maintain or further prosecute any action at law, suit in equity, or otherwise against the other party hereby released, by reason of, or in any way connected with or growing out of, any of the claims affected by this release. If any action or claim is ever asserted by a releasing party against any of the parties released by this agreement, then this agreement may be asserted or plead by the party released by this agreement as it defends against any such action or claim. 6. UNDERST ANDING. It is understood and agreed that this mutual release is given in connection with a compromise of disputed claims and that nothing contained herein shall be construed as an admission of liability of any party or any other party herein, all of which parties hereby expressly deny liability_ It is further understood that this release contains the entire agreement between the parties and that this document and its terms are contractual and not a mere recital. 7. NO DISPARAGING REMARKS. The parties agree not to make any disparaging remarks or comments regarding any party to this agreement. 8. MISCELLANEOUS PROVISIONS. 8.1 The headings in this agreement are intended solely for convenience or reference and shall be given no effect in the construction or interpretation of this agreement. 8.2 This agreement shall be governed by the laws of the State of Oregon. 8.3 This agreement shall inure to the benefit of and be binding on the successors and legal representatives of each of the parties. No party may assign this agreement without the express written consent of all of the parties hereto. 8.4 This agreement embodies all of the representations, warranties and agreement of the parties with respect to the subject matter hereof, and all prior understandings, representations and warranties (whether oral or written) with respect to such matters are superseded and may not be amended, modified, waived, discharged or orally terminated except by a writing signed by all the parties. 8.5 The invalidity or unenforceability of any particular provision of this agreement shall not affect the other provisions hereof, and this agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. 8.6 This agreement has undergone several drafts with the negotiated suggestions of all of the parties and therefore no presumptions shall arise favoring any party by virtue of the authorship of any of its provisions. 8.7 If any suit, action, or other proceeding of any nature whatsoever (including any proceeding under U.S. Bankruptcy Code) is instituted in connection with any controversy arising out of this agreement, or to interpret or enforce any rights hereunder, the Page 3 - Settlement Agreement and Mutual Release prevailing party shall be entitled to recover its attorney fees, including, but not limited to, salary of in-house counsel, paralegal, accountant and other experts fees and all other fees, costs and expenses actually incurred and reasonably necessary in connection therewith, as determined by the arbitrator or court at trial or on any appeal or review, in addition to all other amounts provided by law. Litigation shall be commenced only in Lane County, Oregon. 8.8 This agreement has been drafted by Scott G. Bassinger of the law firm of Bassinger & Kim, 1200 Executive Parkway, Suite 320, Eugene, Oregon 97401, solely as attorney for OT!. The City acknowledges that Patricia Day-Moore, City's Attorney Office, P.O. Box 1230, Bozeman, MT 89715-1230 represents the City with regards to the terms of this agreement. MMI acknowledges that Neil G. Westesen of Crowley, Haughey, Hanson, Toole & Dietrich P.L.L.P., 45 Discovery Drive, Suite 200, Bozeman, MT 59718 represents MMI with regards to the terms of this agreement. 8.9 A waiver of any breach of this agreement or of any of the terms of conditions thereof shall not be deemed a waiver of any repetition of such breach or otherwise affect any other term or condition hereof; no waiver shall be valid or binding unless the same shall be in writing signed by the parties so waiving. 8.10 As used in this agreement, the singular shall include the plural and the plural the singular whenever the context so requires. The masculine and neuter shall each include the masculine, feminine and neuter if required by the context and generally all grammatical changes shall be made when appropriate. 8.11 This agreement may be executed in several counterparts, including facsimile counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one agreement binding on the parties hereto, notwithstanding all of the parties have not signed the same counterpart. For purposes of executing this agreement, a document signed and transmitted by facsimile shall be treated as an original document. The signature of any party thereon shall be considered as an original signature and the document transmitted shall be considered to have the same binding legal effect as an original signature on an original document. At the request of either party, any facsimile document shall be re- executed by all parties in original form. No party hereto may raise the use of a facsimile or the fact that any signature was transmitted through the use of a facsimile as a defense to the enforcement of this agreement or any amendment executed in compliance with this paragraph. IN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date first written above. By Date: "2- 2/- Ofe,. . Title Page 4 - Settlement Agreement and Mutual Release City of Bozeman By : (Sld.~' Date: 2 -10-06 Chns Kukulski, City Manager ATTEST: ~~ o<tl ~ Robin Sullivan, Clerk of the Commission Morrison Maierle, Inc. \ I By : :,'^"--~--' ,'.l'" Date: - "-- __ ('- ,.-."...~.... Thle: ./ I \__" .\. ' APPROVED AS TO FO~----- ...../ / Bassin~& Kim City's Attorney Office By By ": ~..-:::: - ~atrici ay-Moore Stat Attorney tor City Crowley, Haughey, Hanson, Toole 1 Dietrich P.L.L.P. By Jj)tJ ~ Neil G. Westesen Of Attorneys for MMI Page 5 - Settlement Agreement and Mutual Release