Loading...
HomeMy WebLinkAboutresolution.council.027-06 RESOLUTION NO. ~ Series of 2006 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A MUTUAL RELEASE AND SETTLEMENT AGREEMENT, BETWEEN THE CITY OF ASPEN AND THE DURRANT GROUP, INC., AND AUTHORIZING THE MAYOR OR CITY MANAGER TO ACCEPT SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council, a Mutual Release and Settlement Agreement for the civil action in Pitkin County District Court case number 2003CV50, between the City of Aspen and The Durrant Group, Inc., a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves the Mutual Release and Settlement Agreement for Pitkin County District Court case number 2003CV50, between the City of Aspen and The Durrant Group, Inc., a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or City Manager to approve said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the.2?i- day Of~ 2006. I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day her inabove stated. ~ G:\tara\RESOS\Durrant settlement.doc MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement is entered into by and between the City of Aspen, Colorado ("Aspen") and The Durrant Group, Inc. ("Durrant") and is effective this 12th day of April, 2006. RECITALS A. Aspen is a Colorado municipal corporation. B. Durrant is a Wisconsin corporation authorized to do business in Colorado with its principal place of business in Dubuque, Iowa, and with offices located in Denver, Colorado. It has done business in Colorado as Durrant Architects, Inc. Where Durrant is referred to herein, the name is intended to refer to The Durrant Group, Inc., Durrant Architects, Inc., and all related or affiliated entities. C. On or about January II, 2000, Durrant entered into a Professional Architectural Services Agreement ("Agreement") with Aspen, pursuant to which Durrant undertook the performance of certain professional architectural and engineering services with respect to the design of the Iselin Pool and Ice Facility ("the Facility") for Aspen. The Agreement was amended from time to time, and references to the Agreement herein encompass the Agreement and all amendments thereto. D. Durrant retained consultants to assist with various portions of the design of the Facility, including Vic Davies Architect, Ltd. ("Davies") and Keen Engineering, Inc. ("Keen"). E. Following completion of the Facility, Aspen asserted various claims against Durrant. Aspen claimed that the plans and specifications prepared by Durrant and its consultants for the Facility were incomplete or contained errors or omissions, that Aspen incurred additional and/or excessive costs as a result thereof, and that certain remedial work had to be performed following completion of the Facility. Durrant denied those claims. F. Although Aspen and Durrant first attempted to resolve those claims through negotiation, they were unable to do so. Aspen then commenced a civil action against Durrant based upon those claims, that civil action being identified as City of Aspen v. The Durrant Group, Inc., Pitkin County District Court, Case No. 03CV50, referred to hereinafter as "the Civil Action." G. In the Civil Action, Durrant asserted a counterclaim against Aspen for indemnification based upon the terms of the Agreement. H. Following further negotiations, Aspen and Durrant have now agreed to resolve all matters in dispute between them under the terms and conditions set forth below. TERMS OF AGREEMENT 1. For and in consideration of payment to it by or on behalf of Durrant of the sum of Seven Hundred Sixty Two Thousand Five Hundred and noli 00 Dollars ($762,500.00), the sufficiency of which is hereby acknowledged, Aspen, for itself, its elected officials, officers, employees, agents and insurers, hereby releases and forever discharges Durrant, its officers, directors, shareholders, employees, agents, insurers and consultants, including, but not limited to, Davies and Keen, of and from any and all claims whatsoever, whether in tort, contract or otherwise, for any and all damages of any kind whatsoever arising out of or in any way related to the professional services performed by Durrant or its consultants with respect to the Facility. This release is intended to include all claims asserted in the Civil Action, all other claims which may be presently known to Aspen, and all claims which might arise in the future, but are presently unknown to Aspen. 2. In consideration of the release given by Aspen in Paragraph I, above, Durrant, for itself, its officers, directors, shareholders, employees and agents, hereby releases Aspen, its elected officials, officers, employees, agents and insurers of and from any and all claims arising out of the design and construction of the Facility, including, but not limited to, those claims asserted by Durrant in the Civil Action. 3. Upon execution of this Release and Settlement Agreement, the parties agree to prepare and file, or cause to be filed, any necessary documents to accomplish the dismissal ofthe Civil Action with prejudice, each of the parties to pay its own costs. 4. The parties acknowledge that the payment made and the obligations undertaken hereunder are for the purpose of compromising and resolving contested claims between them, and such payment and obligations are not to be construed as an admission of liability by either party to the other and, in fact, each of the parties denies liability to the other. 5. In entering into this Mutual Release and Settlement Agreement, each of the parties acknowledges that it is not relying upon any statements or representations of the other party or the other party's consultants or attorneys, but is relying exclusively upon its own knowledge, as well as the knowledge of its own consultants and attorneys with respect to the condition of the Facility and the existence of any claims or potential claims against the other party. 6. Should Durrant proceed in arbitration or litigation against any of its consultants with claims for indemnification, contribution or otherwise, and should Durrant seek to engage consultants or experts who have been retained by Aspen in the Civil Action, Aspen agrees that it will not object to such retention, it being understood that any such engagement shall be a matter between Durrant and any such expert or consultant on such ierms as they may agree. 7. Aspen further agrees that it shall not communicate to third parties any disparaging statements or remarks concerning Durrant or the services performed by Durrant and its consultants, for the Facility and shall take such steps as are necessary to inform its elected officials, officers and employees of this non-disparagement provision. 2 8. Aspen hereby confirms that no claim being released hereunder has been transferred or assigned to any third party in whole or in part. 9. The parties acknowledge that this Mutual Release and Settlement Agreement shall be binding upon each of the parties and its respective successors, assigns and insurers. .-/' DATED thi0S day of April, 2006. CITY OF ASPEN By: Its: THE DURRANT GROUP, INC. By: Its: ATTESTATION: ~: ~~re!'~ 3 MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement is entered into by and between the City of Aspen, Colorado ("Aspen") and The Durrant Group, Inc. ("Durrant") and is effective this 12th day of April, 2006. RECITALS A. Aspen is a Colorado municipal corporation. B. Durrant is a Wisconsin corporation authorized to do business in Colorado with its principal place of business in Dubuque, Iowa, and with offices located in Denver, Colorado. It has done business in Colorado as Durrant Architects, Inc. Where Durrant is referred to herein, the name is intended to refer to The Durrant Group, Inc., Durrant Architects, Inc., and all related or affiliated entities. C. On or about January II, 2000, Durrant entered into a Professional Architectural Services Agreement ("Agreement") with Aspen, pursuant to which Durrant undertook the performance of certain professional architectural and engineering services with respect to the design of the Iselin Pool and Ice Facility ("the Facility") for Aspen. The Agreement was amended from time to time, and references to the Agreement herein encompass the Agreement and all amendments thereto. D. Durrant retained consultants to assist with various portions of the design of the Facility, including Vic Davies Architect, Ltd. ("Davies") and Keen Engineering, Inc. ("Keen"). E. Following completion of the Facility, Aspen asserted various claims against Durrant. Aspen claimed that the plans and specifications prepared by Durrant and its consultants for the Facility were incomplete or contained errors or omissions, that Aspen incurred additional and/or excessive costs as a result thereof, and that certain remedial work had to be performed following completion of the Facility. Durrant denied those claims. F. Although Aspen and Durrant first attempted to resolve those claims through negotiation, they were unable to do so. Aspen then commenced a civil action against Durrant based upon those claims, that civil action being identified as City of Aspen v. The Durrant Group, Inc., Pitkin County District Court, Case No. 03CV50, referred to hereinafter as "the Civil Action." G. In the Civil Action, Durrant asserted a counterclaim against Aspen for indemnification based upon the terms of the Agreement. H. Following further negotiations, Aspen and Durrant have now agreed to resolve all matters in dispute between them under the terms and conditions set forth below. TERMS OF AGREEMENT 1. For and in consideration of payment to it by or on behalf of Durrant ofthe sum of Seven Hundred Sixty Two Thousand Five Hundred and noli 00 Dollars ($762,500.00), the sufficiency of which is hereby acknowledged, Aspen, for itself, its elected officials, officers, employees, agents and insurers, hereby releases and forever discharges Durrant, its officers, directors, shareholders, employees, agents, insurers and consultants, including, but not limited to, Davies and Keen, of and from any and all claims whatsoever, whether in tort, contract or otherwise, for any and all damages of any kind whatsoever arising out of or in any way related to the professional services performed by Durrant or its consultants with respect to the Facility. This release is intended to include all claims asserted in the Civil Action, all other claims which may be presently known to Aspen, and all claims which might arise in the future, but are presently unknown to Aspen. 2. In consideration of the release given by Aspen in Paragraph I, above, Durrant, for itself, its officers, directors, shareholders, employees and agents, hereby releases Aspen, its elected officials, officers, employees, agents and insurers of and from any and all claims arising out of the design and construction of the Facility, including, but not limited to, those claims asserted by Durrant in the Civil Action. 3. Upon execution of this Release and Settlement Agreement, the parties agree to prepare and file, or cause to be filed, any necessary documents to accomplish the dismissal of the Civil Action with prejudice, each ofthe parties to pay its own costs. 4. The parties acknowledge that the payment made and the obligations undertaken hereunder are for the purpose of compromising and resolving contested claims between them, and such payment and obligations are not to be construed as an admission of liability by either party to the other and, in fact, each of the parties denies liability to the other. 5. In entering into this Mutual Release and Settlement Agreement, each of the parties acknowledges that it is not relying upon any statements or representations of the other party or the other party's consultants or attorneys, but is relying exclusively upon its own knowledge, as well as the knowledge of its own consultants and attorneys with respect to the condition of the Facility and the existence of any claims or potential claims against the other party. 6. Should Durrant proceed in arbitration or litigation against any of its consultants with claims for indemnification, contribution or otherwise, and should Durrant seek to engage consultants or experts who have been retained by Aspen in the Civil Action, Aspen agrees that it will not object to such retention, it being understood that any such engagement shall be a matter between Durrant and any such expert or consultant on such terms as they may agree. 7. Aspen further agrees that it shall not communicate to third parties any disparaging statements or remarks concerning Durrant or the services performed by Durrant and its consultants, for the Facility and shall take such steps as are necessary to inform its elected officials, officers and employees of this non-disparagement provision. 2 8. Aspen hereby confirms that no claim being released hereunder has been transferred or assigned to any third party in whole or in part. 9. The parties acknowledge that this Mutual Release and Settlement Agreement shall be binding upon each of the parties and its respective successors, assigns and insurers. DATED this ~S-day of April, 2006. CITY OF ASPEN By: Its: ATTESTATION: By~k Its: ClG' L THE DURRANT GROUP, INC. By: Its: 3