Contract No. 1992-06MATTHEW D. JAMIN
C. WAVER EBELV
JOEL H. BOLGER*
DIANNA R. GENTRY
ALAN L. SCHMITT
WALTER W. MASON"
DUNCAN S. FIELDS
MICHAEL ARAUJO
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JAMIN. EBELL. BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK, ALASKA 99613
The Honorable Jerome Selby, Mayor
Kodiak Island Borough
710 Mill Bay Road
Kodiak, AK 99616
Re: Main Elementary roof
Our Fik No. 4702-214
Deer Jerome:
FACSIMILE: (909) 486.6112
TELEPHONE: (907) 466.6024
REPLY TO KODIAK OFFICE
March 24, 1992
SEATTLE OFFICE:
300 MUTUAL LIFE SUILOING
609 FIRST AVENUE
SEATTLE, WASHINGTON 96104
FACSIMI LE: (206) 623.7321
TELEPHONE: (206) 6220634
Enclosed is a revised Settlement Agreement with respect to the Main Elementary roof claim The
agreement hes been revised to limit the release granted by the Kodiak Island Borough to claims which are
related to the design or construction of the roof of Main Elementary School. Atter the assembly approves
the settlement, plesse sign this agreement before a notary public and return it to me, and I will set up the
payment of the settlement finds.
JAMIN, EBELL, BOLGER & GENTRY
JHB tsh
Enclosure
oo: Mr. Jack McFarlsnd, Presiding Offaw
Kodiak Island Borough Assembly
4702\214L.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 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 follows:
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 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 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,
-- -
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 Young v. State of Alaska. et
aa,_, 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
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.
5. 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 & Babler/MAPCO,
except as expressly provided herein.
DATED: KODIAK ISLAND BOROUGH
By:
Itss
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 r the State of
Alaska, duly commissioned and sworn, personally appeared
Tero n, e YYl �e I6 , to me known and known to me to be the
identical individual described in and who executed the within and
foregoing instrument asRYor� of KODIAK ISLAND BOROUGH
and he acknowledged to meM 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.
^� o-y� fi• .�h� I tX�!
\-Notary Public in and fo asks
My Commission Expires: y
4702\214D. 002
AR'1T MMT ALIT, R=IPT AND
RHLSM Or ALL CLAIMS - 4
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
JOEL H. BOLGER•
ATTORNEYS AT LAW
C. WALTER EBELL'
\ - /20 S
DUNCAN S. FIELDS
323 CAROLYN STREET
DIANNA R. GENTRY
KODIAK, ALASKA 99615
MATTHEW D. JAMIN
WALTER W. MASON -
JANE E. SAUER
TELEPHONE: (909( 486-6024
ALAN L. SCHMITT
FACSIMILE: (907) 466-6112
MICHAEL C. SCIACCA'
OALASKA
REPLY TO KODIAK OFFICE
wA9NiNG ON GAw!
L OTHERS ADMITTED TO
ALASKA !AR
January 15, 1992
VIA FACEMME TO 276-4152. AND MAIL
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:
SEATTLE OFFICE:
300 MUTUAL LIFE BUILDING
603 FIRST AVENUE
5EATTLE. WASHINGTON 98104
TELEPHONE: 1X61 622 763A
FGCSIM ILE: (206) 623 TS21
JA0 1 6 92
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 CTA 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 should 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 preliminary 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
CHORAGE OFFICE:
D
I/r/'�\�\///�1J
1 n
\ - /20 S
\ `L�� �J
ORAGE. AL KA 95
,LJ(NCI-IOR<G E. ALASKA 99501
TELEPHONE
AND FAX
(907)278 6100
SEATTLE OFFICE:
300 MUTUAL LIFE BUILDING
603 FIRST AVENUE
5EATTLE. WASHINGTON 98104
TELEPHONE: 1X61 622 763A
FGCSIM ILE: (206) 623 TS21
JA0 1 6 92
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 CTA 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 should 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 preliminary 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.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
Joel H. Bolger
JHB:tah
cc: Ray Camardella (via fax and mail)
James P. Wagner (via fax and mail)
Honorable Jerome Selby, Mayor
,/Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\214L.018
1.
./
cql -o&
THIS AGREEMENT made and entered into this 3rd day of
September, 1991 by and between the Kodiak Island Borough ("the
Borough"); and CTA Architects Engineers, Inc. ("CTA").
W I T N E S S E T H
WHEREAS, the Borough is the owner of a school in Kodiak,
Alaska known as the Main Elementary School ("the school"); and
WHEREAS, 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, CTA 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"),
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;
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
acceptable to the Borough ("the 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 ccnstruction cost estimate. Both
parties will actively participate in selection of the design firm,
and will cooperate in contacting, interviewing, providing
information to and selecting an acceptable design first.
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 CTA'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
employed by them, may make in the performance of their work.
Minimum limits required will be $1,000,000 combined 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
CTA 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 CTA
agree that they will not look to each other, but will look 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.
5. 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 CTA reserve 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 work to be procured herein and any related costs or
attorney's fees.
3
Sn•:� lHioi
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
limitation, access to the school, access to the each party'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
4.9 'H. Bolge its attorney
CTA ARCHITE S ENGINEERS ALASKA, INC.
rr
Imes P.Wagner, t attorney
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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 CTA Architects 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 �S_day of
1992.
KODIAK ISLAND BOROUGH
Claimant
By
Its
ATTEST: G)i r. 7 ttt�i
Donna F. Smith
Borough Clerk
Witness
I
JAMIN, EBELL, BOLGER & GENTRY
Attorneys for Kodiak Island Borough
��.el —H. BoKer
The above Settlement Agreement is hereby accepted as of
the date it bears.
CONTINENTAL CASUALTY COMPANY
Vivian Robinson
Benefit Settlement Option Department
6702\216D.006
ITEM NO. 12.D. 1.
Kodiak Island Borough
Meeting of:
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 Account
Required No.
APPROVAL FOR AGENDA:
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
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER•
DIANNA R. GENTRY
ALAN L. SCHMITT
WALTER W, MASON**
DUNCAN S. FIELDS
MICHAEL APAUJO
TTED TO ALASEA
AND w.SNINOTON MARS
..NIrTMD To w.MNmcTON sA6
AI -L OTRERS ADMITTED TO
ALAS— IIAR
VIA HAND DELIVERY
The Honorable Jerome Selby, Mayor
Kodiak Ialand Borough
710 Mill Bay Road
Kodiak, Alaska 99815
Re: Main Elementary roof
Our File No. 4702-214
Dear Jerome.
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK. ALASKA 99613
FACSIMILE: (901) 466-6112
TELEPHONE: (907) 466-6024
REPLY TO KODIAK OFFICE
March 20, 1992
SEATTLE OFFICE:
300 MUTUAL LIFE GUILDINO
606 FIRST AVENUE
SEATTLE, WASHINGTON 96104
FACSIMILE:(ROO) 623 1621
TELEPHONE: (206) 622-1634
IM 2 0 92
Please find enclosed a settlement offer from GTA 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 $824,827. They would pay $420,000 in cash at the time of
settlement and monthly payments of $94,137.82 from July 17, 1992 through December 17, 1992.
I strongly recommend approval of this settlement by the Kodiak Island Borough Assembly. I
believe from my discussions with Ray Camardella that this settlement would pay for the estimated
construction cast, the estimated costs of construction administration and the cast of the design contract
in full. Rap 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 cell if you have any questions.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
C
JHB:tah
Enclosure
W. Ray C E. ardetyR, Engineering and Facilities Director
Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\234L.026
MAR IS 192 16:22 FROM STAFFORD FREY GOUFER W 0cjloai
S UFFA) FREY COOPER & S WART
MOMMD sea" RLMN,
MOMMY M. ■MAIN
JOON 61wOL01M
NMWAMO W. CAM4MAM•
JOIW e. COOPRM
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THUM M. FITZPATRIC K,
THOMAS D. PRICY
AMNDLD L. DRAT
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DIANE aICIM■R LISW
VM6iAM L. MEAL.
JAM ■. a11KOL.
MAINOM WAPPp11D. P.I.
JOHN GANGER W{WART-
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DAVID 9. HARTMAN
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ATTORNEYS
300 WATERMARK TOWER
SS SPRING STREET
iQATTLt. WASHINGTON 90104-1095
12061633-9900
PACSIMILS: U66, 62A -Maas
PORTLAND DPPIea
1Tl0 ■LKJAMIN PKARKLIN RASA
OIIL D.W. 4=At1 ■IA
PORTLAND. eO■WN MU."W
49021 44144"
FA 811016111, 101141 222.61]06
March 18, 1992
Joel Bolger, Esq.
JAMIN, EBEL - BOLGER & GENTRY
605 First Avenue, Suite 300
Seattle, Washington 98104
Re:
Our File No.
Dear Joel:
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Just a short note to confirm that we have reached agreement on a settlement in
the Main Elementary School matter. We have agreed to settle the case for a payment
to your client of $420,000 in cash and monthly payments of $34,137.82 from July 17, 1992
through December 17, 1992. The total payout on the structured 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 Camardella and yourself
I will be shortly forwarding a draft settlement agreement and release. I look
forward to receiving your comments on that draft
Joel Bolger, Esq.
March 18, 1942
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 glad we were able to
work out a settlement without resort to litigation.
Very truly yours,
STAFFORD FREY COOPER & STEWART
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cc: Douglas Parker (via telecopier)
Leslie Asbury (via telecopier)
Keith Rupert (via first class mail)
Ronald I udders (via telecopier)
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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 follows:
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 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 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,
MWZLZ mrT AMMDMT, MCNIPT AND
MRARa or ALL CLAM - 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 Young v. State of Alaska. at
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
cU V05'i is fn iia 9.1 is Y: i` \:'u
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.
5. 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 & Babler/MAPCO,
except as expressly provided herein.
DATED: KODIAK ISLAND BOROUGH
By:
Its:
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.
Notary Public in and for Alaska
4702\214D.002My Commission Expires:
sa1TLZKUT AAIVDMT. FJ=XPT AHD
ABLBAU OF ALL CLAIMS - 4
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•
O ALASKA
WASHINGTON BA.S
ANDALL WASHINGTON
AGNITTED TO
ALASKA EUR
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK, ALASKA 99615
-ELEPHONE: (907) 486-6024
FACSIMILE: (907) 485-6112
REPLY TO KODIAK OFFICE
February 24, 1992
csF
ANCHORAGE OFFICE:
1200 I STREET. SUITE 704
ANCHORAGE. ALASKA 99501
TELEPHONE AND FAX
(907) 278 6100
SEATTLE OFFICE:
300 MUTUAL LIFE BUILDING
605 FIRST AVENUE
SEATTLE. WASHINGTON 96104
TELEPHONE: 12061 622 7634
FACSIMILE: (2061 e23 7521
INA of Texas, Inc.
c/o Frank B. Hall & Co. of Oklahoma
1008 Utica Tower Bldg. C C C' � % E D
1924 S. Utica L G v
Tulsa, OK 74104 TM 2 6
Re: Kodiak Island Borough
Main Elementary School ',h ISLC.NO Cc
General Liability Policy ISL-GO9283422-4
Our File No. 4702-214
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, A.I A., 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 total 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 Camardella, Engineering & Facilities Director
vilonorable Jerome Selby, Mayor
Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\214L.024