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Contract No. 1992-06 JAMIN. EBELL. BOLGER & GENTRY MATTHEW 0, ,JAMIN C. WALTER ESELL- .JOEL 1-4. BOLGER- OlANNA R. GENT"'Y ALAN L. SCHMITT WALTER W. "",ASON.. OUNCAN $. !'"IEL-OS MICHAEL ARAU,JO . PROF'ES$IONAL CORPORATION ATTORNEYS AT L.AW 323 CAROLYN STREET KODIAK. ALASKA 9gel!S F"AC$IMILE: (gO?) "8e'8112 TELEPHONE: (907) 488.e02" SEATTLE OF"F'ICE: 300 MUTU....L l..1F'E eUIl-OING eo!! F'lltST AVEIIIUE SEATTLE, WASHINGTON SteIO. ,....C5IMILIl: (2015) 823-7521 TlEI..EPHONE: (20$) 822-.783" ...o...,TTItO TO ...1......... ."0 w....,..OTOH .... ...o...,TTI:O TO w.o.SHINOTON .... ALL OTHIl". AO,,"'TTCO TO ........ ...." litEPL.Y TO KODIAK OI""ICE March 24, 1992 The Honorable Jerome Selby, Mayor Kodiak Island Borough 710 Mill Bq RoIId Kodiak, AK 99615 Be: Main Elementary roof Our File No. 4702-214 DeBr Jerome: 1l!....I---1ls a revised Settlement Agreement with respect to the Main 1l!1....._.,. roof claim. The agreem'!Dt baa been revised to limit the reIeue granted by the Kodiak Island Borough to claims which are related to the design or COJI8tructioD of the roof of Main "EI.........tary SchooL After the a-hly approves the aettlem-t, pl.- aign tbls agreement before a notary public 8Dd return it to me, 8Dd I will set up the ~ of the settl.....- fuudL Siucere1y youn, JAMIN, "f.:'R1l!T.T \ BOLGER '" GENTRY ~ JHB:tah 1l!nMIwo1l'll ex: Mr. JlIcUfcFarIIIIId, 1\ ......" Officer Kodiak I8IaDd Borough.Y1 -..", n02\21G..027 .- SETTLEMENT AGREEMENT. RECEIPT AND . RELEASE OF ALL CLAIMS .' The Kodiak Island Borough ("the Borough") executes this Settlement Agreement, Receipt and Release of All Claims in favor of CTA Architects Engineers, Inc. ("CTA") and Rogers & Babler, a division of MAPCO Petroleum, Inc. (Rogers & Babler/MAPCO"). WHEREAS the Borough is owner of the Main Elementary School in Kodiak, Alaska; and WHEREAS CTA was the designer of the Main, Elementary School; and WHEREAS Rogers & Babler/MAPCO was the general contractor for construction of the Main Elementary School; and WHEREAS the roof on the Main Elementary School has experienced significant deterioration and leakage due to condensation of moisture within the roof cavity; and WHEREAS the Borough has asserted claims against both CTA and Rogers & Babler/MAPCO for the coste of repairing and/or replacing the roof; and WHEREAS both CTA and Rogers & Babler/MAPCO have denied any liability to the Borough; and WHEREAS the Borough, CTA and Rogers & Babler/MAPCO all desire to settle fully and finally all claims which have been asserted and which could have been asserted in connection with the Main Elementary School; NON, THEREFORE, it is agreed as followsl 1. For and in consideration of the payment of the sum of FOUR HUNDRED TWENTY THOUSAND DOLLARS ($420,000.00) in cash, together with six payments of THIRTY-FOUR THOUSAND, ONE HUNDRED ~, THIRTY-SEVEN DOLLARS and EIGHTY-TWO CENTS ($34,137.82) each commencinq July 17, 1992 and continuinq each month thereafter until December 17, 1992, and for other qood and valuable consideration, the Borouqh, for itself, its political subdivisions, aqents, employees, officers, administrators, successors and assigns (hereinafter collectively referred to as "the Releasers"), hereby releases, acquits and forever discharqes CTA, Roqers & Babler/KAPCO, their predecessors, stockholders, owners, parent corporations, subsidiary corporations, affiliate corporations, any and all consultants, sub-consultants, contractors and subcontractors used or retained by CTA or Roqers & Babler/KAPCO, their representatives, personal representatives, executors, administrators, officers, directors, employees, agents, insurers and reinsurers, from any and all claims, demands, actions and causes of action, lawsuits and controversies of any kind and nature, for all injuries, dll1llaqes and losses of every kind and nature, whether presently known or unknown, suspected or unsuspected, disclosed or undisclosed, arisinq out of or in any way connected with the design and/or construction of the roof of the Main Elementary School in Kodiak, Alaska. 2. It is fully understood that the consideration for this release is given for the sole purpose of terminatinq further controversy and settlinq disputed claims of disputed value, and that none of the parties admit any liability whatsoever, but, on the contrary, expressly denies any neqligence, breach of contract, ~ .........~, lUICZIft AlII) DLUa ~ ALl. CLADII - 2 breach of duty or other unlawful or inappropriate conduct of any kind or nature, and any liability therefor. The Borough hereby expressly acknowledges and assumes all risk, chance or hazard that the damages to which this release pertains may be or become greater or more extensive which is now known, anticipated, alleged or expected, and that they may be mistaken as to the character and extent of those damages. 3. Each party shall bear all of its own attorneys' fees and costs in connection with this matter. The Releasers further warrant and agree that they will neither individually, nor in concert with others, maintain or cause to be maintained, any further demands, actions, claims, lawsuits, arbitrations, or similar proceedings, in any capacity whatsoever against CTA or Rogers & Babler/MAPCO as a result of or pertaining to the facts or claims which have been asserted or could be asserted by the Borough in connection with this dispute. 4. The parties affirm and state that they are represented by counsel and that their attorneys have fully explained the terms and conditions of this Settlement Agreement, Receipt and Release, and that they are familiar with the decisions of the Alaska Supreme Court, including Youna v. State of Alaska. et ~, 455 P.2d 889 (Alaska 1969), Alaska v. Sweat, 568 P.2d 916 (Alaska 1977), and Witt v. Watkins, 579 P.2d 1065 (Alaska 1978). Having been advised of the effect of these decisions upon this Settlement Agreement, Receipt and Release, it is still the full 8B'1"rLIIIIIr. a..I.A..~, 1tJlC2IP.r AIm RBLKllld ow ALL CLAIIl8 - 3 intent and desire of the Borough to fully release CTA and Rogers & Babler/MAPCO from any future liability arising out of the design or construction of the roof of the Main Elementary School. S. The Borough affirms that it is not at any financial disadvantage and that no promise or inducement which is not herein expressed has been made regarding execution of this Settlement Agreement, Receipt and Release, nor does the Borough rely on any statement or representation made by CTA, Rogers & Babler/MAPCO, or any agent or person representing CTA or Rogers & Bllbler/MAPCO, except as expressly provided herein. DATED I 4-(P-f.~ KODIAK ISLAND BOROUGH ~, )~-\ll1.~,~ STATE OP ALASKA ) )ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the ,-t!J of ~~ , 1992, before me, the undersigned, a Notary Public in and r the State of Alaska, duly commissioned and sworn, personally appeared .TerOIM"t. M, $; e I b 'if ' to me known and known to me to be the identical individual! described in and who executed the within and foregoing instrument as m"" yo" of KODIAK ISLAND BOROUGH and he acknowledged to me that he signed the same in the name of and for and on behalf of said municipality, freely and voluntarily and by authority of its Assembly for the uses and purposes therein mentioned. GIVEN UNDER MY HAND and official seal the day and year last above written. 4702\2UIl.002 ~O~ ~h - Notary Publ c in and f~aska My Commission Expiresl hue 1, /q 7 </ ~ AAMuI..ta'!, 1I8CI:Ift AlII) RBLB&S8 or ALL CLAIMS - . ~,j -ltJ JAMIN, ESELL. BOLGER & GENTRY .JOEL H. BOLGE~. C. WALTE~ EBELL" DUNCAN S. ~IELOS DIANNA ~. GENTRY MATTHEW O. .JAMIN WALTER W, MASON" ...JANE E. SAUER ALAN L, SCHMITT MICHAEL C. SCIACCA" A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET ~Q)[?)~CHORAG. omc., n . 0 00 , ST"'EET, SUITE 704 G 'J ! NCHORAGE. Al.A5KA 99501 TELEPHONE AND FAX (907) 278-6100 KODIAK, ALASKA 99615 TELEPj-.tONE: (907) 486-6024 FACSIMILE: (907) 486-6112 SEATTLE O~~ICE: ...O..,TTEOTO......S.... ....OW..S..,..GTO.. 1!I....s ...... OT"E"S "O""TTEO TQ ",,"SK" ..... REPLY TO KODIAK O~~ICE 300 MUTUAL. 1.,F"E BUI..QING 605 FIRST AVENUE 5E:ATTL.E, WASHINGTON 98104 TEl.EPHONE: (2C61 622-7634 .AC5IMll..E: (206) 623-752' January 15, 1992 VIA FACSIMILE TO 276-4152. AND MAIL rJAN 1 6 92 Douglas S. Parker, Esq. Bogle & Gates 1031 W. 4th Ave., Suite 600 Anchorage, AK 99501 Re: Main Elementary roof Our File No. 4702.214 Dear Doug: Thank you for returning my call concerning resolution of the Main Elementary roof problem. Please find enclosed a copy of my letter of January 8, 1992 to James Wagner representing CT A Architects concerning a proposal for settlement discussions. As noted, we plan to meet with Mr. Wagner and his client in Seattle on January 23 or 24, 1992, if possible. You are welcome to attend if your client seriously wants to consider a complete settlement of this matter prior to construction. I believe there are several reasons that MAPCO shouid give this alternative serious consideration. We have previously forwarded the reports indicating that the lack of an effective sealing job by the contractor is a substantial contributing factor to the moisture loading observed. The architects who have reviewed the roof have not found any evidence of compliance with the specifications requiring tape or adhesive to be used to seal penetrations in the vapor barrier. We are proceeding with the completion of design documents and reconstruction of the Main Elementary roof. We will have no choice but to begin litigation against your client to recover the cost of the repair unless a settlement is accomplished through negotiation or mediation. The pI'PliminAry estimate of the repair alternative approved by the architectural review board was $784,000. We expect to have a final cost estimate by January 17, 1992. We intend to advertise for ~ Mr. Parker January 15, 1992 Page 2 competitive bids beginning the week of February 3, 1992. We must reach a settlement before that time. Please let me know if you want to participate in settlement discussions in Seattle. JHB:tah ce: Ray Camardella (via fax and mail) James P. Wagner (via fax and mail) Honorable Jerome Selby, Mayor vMr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4702\214L.018 Sincerely yours, JAMIN, EBELL, BOLGER & GENTRY Joel H. Bolger ~ &-q-f=-trt-./ .~ c.q\ -Db AGREEMENT THIS AGREEMENT lUade and entered into this Jrd day of September, 1991 by and between the Kodiak Island Borough ("the Borough") ; and CTA Architects Engineers, Inc. ("CTA") . WIT N E 5 SET H WHEREAS, the Borough is the owner of a school in Kodiak, Alaska known as the Main Elementary School ("the school"); and w~EREAS, CTA was the architect for the school: and WHEREAS, a dispute has arisen in connection with the design and construction of the roof for the school; and WHEREAS, the Borough and CTA are in agreement that repairs should be made to the roof of the school, but are at this ,. point unable to determine the actual scope or cost of the necessary repairs; and WHEREAS, eTA and the Borough have each made demands upon Rogers & Babler, the contractor who built the school, and its parent company, Mapco Petroleum, Inc. ("Rogers" Babler/Mapco"l, to participate in resolution of the present dispute, but Rogers & Babler/Mapco has refused to participate: and WHEREAS, the Borough and CTA desire to equally share in the costs of procuring the additional testing, analysis and design work necessary to produce final construction documents, including plans and specifications, for the necessary repair work, together with a detailed construction cost estimate; with both the Borough and CTA reserving all of their claims, rights, defenses, counterclaims, and/or set-offs between or against each other and against Rogers & Babler/Mapco and any other parties: 7,-, ' -:: ""'"'!I--< ::J . :-'3:3::: '.;I!'JI:11 -,- . -,-, -.=' ""',- NOW, THEREFORE, in consideration of the mutual covenants and agreements, the parties hereto do contract and agree as follows: 1. CTA and the Borough will contract with a design firm acceptaDle to the Borough (lithe design firm") for performance of all additional testing, analysis and design work necessary to produce final construction documents, including plans and specifications, for repair of the roof of the Main Elementary School as well as a detailed construction cos'~ estimate. Both parties will actively participate in selection of the design firm. and will cooperate in contacting, interviewing. providing information to and selecting an acceptaDle design fin. 2. The Borough and CTA will each contribute 50% of the total cost of the design work to be procured pursuant to this agreement. Each party will initiallY contribute the sum of $35,000 which will be held in trust by eTA's attorneys, Lane Powell Spears Lubersky, and each party will make such additional contributions to that fund as necessary for completion of the required design work on a pro rata basis. payments from the fund shall be subject to the approval of both parties. The parties presently anticipate that the total cost of the necessary design work to be procured pursuant to this agreement will not exceed $100,000. 3. The design firm selected to perform the work envisioned by this agreement shall maintain professional liability insurance covering all negligent errors or omissions which the design firm, any subcontractor or anyone directly or indirectly 2 ~~' ~ ~TT? ~=~ _C~ .... __ . -~~'~= ..;! l ;f:"~- \-'(1 : ,=,-, T'" '-',"" employed by them, may make in the performance of their worle. Minimum limits required will be $1,000,000 coabined single limit per occurrence and annual aggregate. 4. The design firm retained pursuant to this agreement shall agree to indemnify, defend and hold harmless the Borough and eTA from any and all losses, claims or causes of action which may arise from the performance or nonperformance by the design firm of any of its work with respect to the school. The Borough and eTA agree that they will not look to each other, bu~ will loole solely to the retained design firm and/or its insurer, for satisfaction or indemnification of any losses, claims or causes of action arising from the performance or nonperformance by the design firm of any of its work with respect to the school. Neither party to this agreement will warrant, guarantee or in any other manner assure or insure the work to be performed by the design firm. S. Nothing herein shall be construed as an admission by either party of any liability for the problems associated with the roof of the school. The Borough and eTA re5erve all of their claims, rights, defenses, counterclaims, and/or set-offs between or against each other and against Rogers , Babler/Mapco and any other parties arising from the design and construction of the Main Elementary School, including without limitation all claims for reimbursement or recovery of the monies to be expended for the design werle to be procured herein and any related costs or attorney's fees. 3 ......,w .:...:: '-';==3 'HIl'J~[ nl"':":C'\ '-,,,", ' T'" .....,. SO'd l>:<lOl 6. Both parties will cooperate fully with each other and with the retained design firm during the performance of the design firm's work. This cooperation shall include, without 1 im! tat ion , access to the school, access to the each party I s project files, availability for consultation, and provision of any and all information which the design firm might require during the course of its work. No lawsuits or other proceedings of any nature whatsoever shall be instituted by either of the parties against the other pending completion of the design work to be procured pursuant to this agreement or before January 1, 1992. whichever occurs first. Any statute of limitations governing any claims between the parties hereto shall be tolled pending completion of the design work to be procured pursuant to this agreement or until January 1, 1992, whichever occurs first. 7. This agreement is subject to the approval of the Kodiak Island Borough Assembly. The attorneys signing this agreement are authorized to execute it on behalf of their clients. IN WITNESS WHEREOF the parties have executed this agreement on the day and date first above written. KODIAK ISLAND BOROUGH , ~ts attorney S ENGINEERS ALASKA, INC. klb\agrmt (jtJM@ f ~)~ /~mes P. Wagner, t attorney .' / I' :.J 4 ;;-::-1' -: -::-T -::. -,-.,- '-1": .-,---::;':r:: . . j ~ ~:H ~ ~c~: ~o .,. T :-''''' 4.rT""c.wa............. ~. 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FllOl!: "AH.1N. :;~ BOI.~ A~~Q:=ey. ar La.w TOTAL ;;.GZS ntANsm.'",-;;~, :~tCLUDIUG ~s C:VER SEZ'r: c) ~ =a .,... __._ .. ~_ ,.... .... .... ... aC .... ~n_'" .....~ <II ..- U :.a.r -.... ".., 0......... ~..... t>>o u onnl.-' <=&u-....... ..... - 1..- .,--..-.." ..- ,"'''T-''. _. '1011 ad'_ aouU- t>>T. ~ ...--.uuu. 4U=...... .. ............... o( =- .....----.- ....- 0...... UlU us "'.- __ or .:a ......._ _.. a "A~V ;--. :: ',___.-ot. 0' "... ......__..._ a ;.0 ........ ;._ ._:or'~ I~ .-&_v .., eo...... ...... ~ li01\ .......... .... .- ....:a o.nq~ _~.J.GIl (4 ... rt ~ :.au .c. ~ .... ~. aL~{1 ,eQ@ to'-_. r.u..Lt J 1(\ 11/") JOt ( f J w. U'8 t.::-..-i ~~i:1q tQ you from orei.... ....~ tfI. L......: (9011 48&- 6112. I: you an net receivinq prapuly, or should fCl: sClll8 :rea.on nc1: :ec:.i.... all paqea. ple... pbl:ln8 the "..riAnt.igDIIG a~ (901) 48&..024. \1;:;;'.v1 Transm. t~lU: I ::' 7- T.::: =,'=.... _':-: ,-;... 1.:3 ':-:~'33 '~l!l.]t!f 6S:80 IS;! .. JT r SETTLEMENT AGREEMENT THIS AGREEMENT is entered into between Kodiak Island Borough, Attention: Mayor Jerome Selby, of 710 Mill Bay Road, Kodiak Island, Alaska 99615, hereinafter referred to as the Claimant, and Continental Casualty Company, hereinafter referred to as the Company, an Illinois corporation with its principal place of business in Chicago, Illinois. The Claimant and the Company have agreed to a settlement of their claim under Policy Number AAE 8219014, issued by Continental Casualty Company to CTAArchitects Engineers, insured. A portion of the proceeds of this claim settlement are to be paid as follows: 1. Deferred Monthly Payments - The Company will pay to Kodiak Island Borough the sum of Two Hundred Four Thousand Eight Hundred Twenty-Six Dollars and Ninety-Two Cents ($204,826.92) to be paid in six (6) consecutive deferred monthly payments of Thirty-Four Thousand One Hundred Thirty-Seven Dollars and Eighty-Two Cents ($34,137.82) each. The first such deferred monthly payment is to be made on July 17, 1992. No one shall have the right to accelerate any payment or to increase or decrease the amount of deferred monthly payments specified above. The aforesaid deferred monthly payments shall not be subject to assignment, transfer, commutation or encumbrance by the Claimant or Payee. This Agreement is dated March 17, 1992 and will terminate as specified above. We further state that we have carefully read the foregoing Settlement Agreement and Release and know the contents thereof, and we sign the same as our own free act. WITNESS OUR HAND AND SEAL this 15 "'.-" day of 0- LJ , 1992. KODIAK ISLAND BOROUGH Claimant '}tu.-..-.-WI' ' tVu~'v ('. . By Its Y(_~I_'--"'1' _ ~~ ATTEST: C. () 1 .It, :fA} Hi;; Donna F. Smith Borough Clerk , " JAMIN, EBELL, BOLGER & GENTRY Attorneys for Kodiak Island Borough t l ,..... By~~ Witness The above Settlement Agreement is hereby accepted as of the date it bears. CONTINENTAL CASUALTY COMPANY Vivian Robinson Benefit Settlement Option Department 4702\214D.004 IIll'rl'LEMBRT AGREEIlEIl'r - 2 C- 1;} -trO~ ITEM NO. 12. D. I. Kodiak Island Borough AGENDA STATEMENT Meeting of: .April 2, 1992 ITEM TITLE: Main Roof Repair Settlement Offer by CTA Architects and MAPCO Petroleum. SUMMARY STATEMENT A settlement offer was received by Joel Bolger and Ray Camardella from CTA Architects and MAPCO Petroleum for the repair of Main Elementary School Roof. The offer was received during a meeting in Seattle on March 18, 1992, for the total amount of $624,827. $420,000 is to be paid to the Kodiak Island Borough at the time of the settlement agreement; and the remainder to be paid in installments of $34,137.82 from July 17, 1992 through December 17, 1992. This joint settlement is expected to cover the costs of the repair, including construction administration and the cost of the design contract. It is recommended that the Assembly approve this settlement offer. FISCAL NOTES [] N/A Expenditure Required Account No. I APPROVAL FOR AGENDA: Mayor d~/ RECOMMENDED ACTION: Move to approve Main Elementary School Roof Repair Settlement offer from CTA Architects and MAPCO Petroleum for a total amount of $624,827. JAMIN, EBELL, BOLGER & GENTRY MATTI-lEW 0, ,JAMIN C. W"LTEFl EBELL* .JOEL H. BOLGER- DIA~NA R. GENTRY Ai-AN L, SCHMITT WALTER W. M"'SON'" DUNCAN S. 1'"1 EL.OS MICHAEL ARAU"JO ...O..'T'I"ItOTO........II..." .....0........5.....0TOI< IIA"a ....O~ITTr:I;>TO ""'AS"'''lGTON .....11II AI-I... DT...ltRllAO..,TTI!:DTO ...US........." VIA HAND DELIVERY The Honorable Jerome Selby, Mayor Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 Be: Main R1""l"'lt.ary roof Our File No. 4702-214 De&r Jerome: A PROF'E:SSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, A.LASKA 9ge15 SEATTLE OF"F"ICE: 300 MUTUAL LIF"E eUILOI~G eos ,,",RST AVENUE SII!:ATH.E, W"'SH1NGTON 9810"", FACSIMILE: (206) 15.23-75.21 TELEPI-lONIt: (208) 822-7634 F"ACSIMILE: (907) 488-6112 TEL.EPHONE: (907) 486-80Z4 RI!.PLY TO KODIAK QF"F'ICE March 20, 1992 WR2092 <J!/'. ~<. i_ rV~!\ ", '~~. -r-,- . u......,", ..J OrFI~~ to ,...-~ Please find Pnp10sed a settlement offer from CTA Architects and MAPCO Petroleum with respect to the reconstruction of the roof on Main Elementary SchooL The architect and the contractor offer to settle the case in return for payment of $624,827. They would ~ $420,000 in cash at the time of settlement and monthly ~ of $84,137.82 from JuI;y 17, 1992 through December 17, 1992. I stroDg\y l"""'mmPn.l approval of this settlement by the Kodiak Island Borough }._hly. I believe from my diacussions with Bay CamardeDa that this settJ~ would ~ for the estimated construction cost, the estimated costs of construct.ion administration and the cost of the design contract in full. Bay and I represented to the other parties that we would endeavor to have the matter placed on the April 2, 1992 agenda for approval by the assembly. Feel free to call if you have ~ questions. Sincerely yours, JAMIN, RRF.T.T , BOLGER & GENTRY 4f!{~ JHB:tah Enclosure cc: Bay CamardeIIa, Eogineering and Facilities Director Mr. Jack McFarland, Presiding Officer Kodiak Island Borough A_l)ly 4702\214100026 MAR 18 '92 16:22 FROM STAFFORD FREY COOPER IU O~~(~~1 .~ . STAFF( D FREY COOPER & S :WART r-'~Ul::. .lc::IlCIC:/l::h:J<.t JtONAI.D .con al....., ROllIn" fl. ....... ..OMIlIau~ HOWAU w. CMIUIAfIII JClMII G. I;OONfI .to. _leMA.. ~A. nlOIIM III. ...~..' ntDtIAS D. FftY ..IIQLD L. PAY' .'"..... .. loA""'" DIANE ",HI.. Lt." wn.t.tAM L. NE.L' ......D...... ........ .-rAl"ll'OtlD. ..... ~ ........ ..,...,RTI _LLI"'L,.~ ATTORNEY. ...-.... 11II. .".... ". ..... COCMt. INIIIT DlEIfIlI_ ,..,...., Il. HA..ILTaM ...."" ~. ...... .. ...... CM"I&._ _" A. In'eEW!CII .It""-" .. WlL_"""" .....a T, T.MIII aoo \vAT.It.AIIK TOW.R .1 ...flING STIt..T Sl!ATTI... WASHINGTON tI104-!O'Ui 1208. .21....00 'A.C.IMIL&; tlO'1 .,..~..., .,......... .,.,. '~M_. I A~ICAU. I OR.........IIH.40.. UR . ...1",UKA.........,.."JIl . CA101POMI...W....IMO\'Off .Aft . tau. ~_.... 1 It.l.I...",.WA.....'IeN .". t __NNW'n."urIAolllCW JI".Y. ""AIMI_TOJlI ... o,.~....'" liJAYID I. HAJn1IAJI ~e eHlee wee II...,,,M.,, FRANKUN ~ ONe '.W. =uDII.'A fllleMUNI, o~ en....., llU'l II...... "AUI""".' I'" 2Z!.87Oa March 18, 1992 ~ (206) 623-7521 Joel Bolger, Esq. JAMIN, EBELL, BOLGER &: GENTRY 60S First Avenue, Suite 300 Seattle, Washington 98104 Re: ~niIIA1r Island Bt\rnuah v. erA ArChitects" Enpeers. et aI. Our File No. 4058113522 Dear Joel: JUIt a short note to confirm that we have reached aareement on a settlement in the Main Elementary School matter. We have aarccd to settle the case for a payment to your client of $420,000 In caah and monthly payments of $34,137.82 from July 17, 1992 throuah December 17. 1m. The total payout on the Ittuctured portion of the settlement will be $204,827.00. We understand that this settlement is contingent upon approval by the Kodiak Island Borough Assembly. We understand that this agreement will be favorably recommended to the Assembly by both Ray C"',"Ardella and younclf. I will be shortly forwarding a draft settlement agreement and release. I look forward to receiving your cnmm'=Dts on that draft. "n, . .. Joel Bolger, Esq. March 18, 1992 Page Two Joel, I want you to know I enjoyed working with you on this matter and very much appreciated your courteous and professional manner. I am very aIad we were able to work out a settlement without resort to Iitiption. Very tnIly yours. STAFFORD FREY COOPER &: STEWART "P.~.Q~ JPW:1aa cc: Douglas Parker (via telecopier) Leslie Asbury (via telecopier) Keith Rupert (via first c1aaa mail) ~nnAltl Lodders (via teJecopier) a:31/aajpw.$60 - .:~-~:;:.. - ,."..~~-:::.:....-,~- -- SETTLEMENT AGREEMENT. RECEIPT AND RELEASE OF ALL CLAIMS The Kodiak Island Borough ("the Borough") executes this Settlement Agreement, Receipt and Release of All Claims in favor of CTA Architects Engineers, Inc. ("CTA") and Rogers & Babler, a division of MAPCO Petroleum, Inc. (Rogers & Babler/MAPCO"). WHEREAS the Borough is owner of the Main Elementary School in Kodiak, Alaska, and WHEREAS CTA was the designer of the Main; Elementary School, and WHEREAS Rogers & Babler/MAPCO was the general contractor for construction of the Main Elementary School, and WHEREAS the roof on the Main Elementary School has experienced significant deterioration and leakage due to condensation of moisture within the roof cavity, and WHEREAS the Borough has asserted claims against both CTA and Rogers & Babler/MAPCO for the costs of repairing and/or replacing the roof, and WHEREAS both CTA and Rogers & Babler/MAPCO have denied any liability to the Borough, and WHEREAS the Borough, CTA and Rogers & Babler/MAPCO all desire to settle fully and finally all claims which have been asserted and which could have been asserted in connection with the Main Elementary School, NOW, THEREFORE, it is agreed as followsl 1. For and in consideration of the payment of the sum of FOUR HUNDRED TWENTY THOUSAND DOLLARS ($420,000.00) in cash, together with six payments of THIRTY-FOUR THOUSAND, ONE HUNDRED THIRTY-SEVEN DOLLARS and EIGHTY-TWO CENTS ($34,137.82) each commencing July 17, 1992 and continuing each month thereafter until December 17, 1992, and for other good and valuable consideration, the Borough, for itself, its political. subdivisions, agents, employees, officers, administrators, successors and assigns (hereinafter collectively referred to as "the Releasers"), hereby releases, acquits and forever discharges CTA, Rogers & Babler /MAPCO, their predecessors, stockholders, owners, parent corporations, subsidiary corporations, affiliate corporations, any and all consultants, sub-consultants, contractors and subcontractors used or retained by CTA or Rogers & Babler/MAPCO, their representatives, personal representatives, executors, administrators, officers, directors, employees, agents, insurers and reinsurers, from any and all claims, demands, actions and causes of action, lawsuits and controversies of any kind and nature, for all injuries, damages and losses of every kind and nature, whether presently known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in anyway connected with the design and/or construction of the roof of the Main Elementary School in Kodiak, Alaska. 2. It is fully understood that the consideration for this release is given for the sole purpose of terminating further controversy and settling disputed claims of disputed value, and that none of the parties admit any liability whatsoever, but, on the contrary, expressly denies any negligence, breach of contract, 8B'ITLBMBI'l' ~.a:, RBCBIPT AIm RBLBASB or ALL CLAIMS - 2 breach of duty or other unlawful or inappropriate conduct of any kind or nature, and any liability therefor. The Borough hereby expressly acknowledges and assumes all risk, chance or hazard that the damages to which this release pertains may be or become greater or more extensive which is now known, anticipated, alleged or expected; and that they may be mistaken as to the character and extent of those damages. 3. Each party shall bear all of its own attorneys' fees and costs in connection with this matter. The Releasers further warrant and agree that they will neither individually, nor in concert with others, maintain or cause to be _ maintained, any further demands, actions, claims, lawsuits, arbitrations, or similar proceedings, in any capacity whatsoever against CTA or Rogers & Babler/MAPCO as a result of or pertaining to the facts or claims which have been asserted or could be asserted by the Borough in connection with this dispute. 4. The parties affirm and state that they are represented by counsel and that their attorneys have fully explained the terms and conditions of this Settlement Agreement, Receipt and Release, and that they are fi!lIlli.liar with the decisions of the Alaska Supreme Court, including Youna v. State of Alaska. et al., 455 P.2d 889 (Alaska 1969); Alaska v. Sweat, 568 P.2d 916 (Alaska 1977); and Witt v. Watkins, 579 P.2d 1065 (Alaska 1978). Having been advised of the effect of these decisions upon this Settlement Agreement, Receipt and Release, it is still the full SB'J.".rLBMD" AQRBBMBII".f', RBCBlPl' AlII) RBLBASB OF ALL CLAIMS - 3 intent and desire of the Borough to fully release CTA and Rogers & Babler/MAPCO from any future liability arising out of the design or construction of the roof of the Main Elementary School. S. The Borough affirms that it is not at any financial disadvantage and that no promise or inducement which is not herein expressed has been made regarding execution of this Settlement Agreement, Receipt and Release, nor does the Borough rely on any statement or representation made by CTA, Rogers & Babl~r/MAPCO, or ! any agent or person representing CTA or Rogers & Babler /MAPCO, except as expressly provided herein. DATED I KODIAK ISLAND BOROUGH By: Itsl STATE OF ALASKA ) )ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the of , 1992, before me, the undersigned, a Notary public in and for the State of Alaska, duly commissioned and sworn, personally appeared , to me known and known to me to be the identical individual described in and who executed the within and foregoing instrument as of KODIAK ISLAND BOROUGH and he acknowledged to me that he signed the same in the name of and for and on behalf of said municipality, freely and voluntarily and by authority of its Assembly for the uses and purposes therein mentioned. GIVEN UNDER MY HAND and official seal the day and year last above written. 4702\2141l.002 Notary Public in and for Alaska My Commission Expiresl BB'1".rLBMBlIT &.....11I rrlElft', RBCBIPT AIID RBLBASB OF ALL CI.ADI8 - .. JAM IN. ESELL. BOLGER & GENTRY ~rgWJ~ ,JOEl. H. BOLGER- C. WALTER EBELL* DUNCAN S. FIELDS DIANNA R. GENTRY MATTHEW D, JAMIN WALTER W. MASON- ,JANE E. SAUER ALAN L. SCHMITT MICHAEL C, SCIACCA- A PROFESSIONAL CORPORATION ATTORNEYS AT LAW ANCHORAGE OFFICE: 323 CAROLYN STREET 1200 I STREET, SUITE 704 ANCHORAGE. AL.ASKA 99501 TELEPHONE AND FAX (907) 278-6100 KODIAK, ALASKA 99615 -ELEF'HQNE: (907} 486-6024 FACSIMILE: (907) 486-6112 SEATTLE OFF"ICE: ....O...'TTEOTO ALASlt. AND W.o,Sl-<'''CTON 8.....S ALL. OTHE-RS AO"',TTEO TO ALAS".. eAR REPL.Y TO KODIAK OFF"ICE .300 MUTUAL LIF"E BUILDING 605 ,II:IST AVENUE SEATTLE, WAS....INGTON 98104 TELEPHONE: (206\ 622-7634 FACSIMIL.E: (2061 823-7521 February 24, 1992 INA of Texas, Inc. c/o Frank B. Hall & Co. of Oklahoma 1008 Utica Tower Bldg. 1924 S. Utica Tulsa, OK 74104 ~,ECE'VED fm2692 He: Kodiak Island Borough Main Elementary School General Liability Policy ISL-G09283422-4 Our File No. 4702-214 '. '.~ ISLt.ND EC~ - , C\ ~--,\/.'S c:- Greetings: Our records indicate that your company provided a general liability policy to Rogers & Babler, a Division of MAPCO Alaska, Inc., for the completion of the Kodiak Main Elementary School I have enclosed a copy of the insurance certificate dated May 1, 1983. I am writing on behalf of the Kodiak Island Borough. We have recently experienced severe decay and condensation in the roof of the Main Elementary School. Our architect's investigation during the preparation of design documents indicates that the lack of an effective sealing job by the contractor in the installation of the vapor barrier is a substantial contributing factor to the moisture loading observed. I have enclosed a copy of the letter we received from John Kumin, ALA, dated December 3, 1991, confirming that the defects in the installation of the vapor barrier constitute a violation of the contract specifications. We have recently advertised for bids for reconstruction of the roof during the summer of 1992. Our preliminary estimate indicates that the tots! cost of reconstruction will be approximately $800,000. I am writing to determine if your company may be liable for the cost of reconstruction under the terms of the referenced policy. INA of Texas, Inc. February 24, 1992 Page 2 Feel free to write or call if you have any questions. Sincerely yours, JAMIN, EBELL, BOLGER & GENTRY Joel H. Bolger JHB:tah Enclosures cc: Ray Camarde1Ja, Engineering & Facilities Director ~onorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4702\214L.024