City vs Allen & Urbain AgreemenBarry A. Lindahl, Esq.
Coz'potation Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 520016944
(563) 583-~113 office
(563) 583-1040 fax
balesq~cityofdubuque.org
Mayor Terrance Duggan and
Members of the City Council
City Hall - City Clerk's Office
50 West 13th Street
Dubuque, IA 52001
February 5, 2004
03, oq
RE: Release and Indemnity Agreement
City of Dubuque vs. Allen & Urbain et al.
Dear Mayor and Council Members:
During the course of the Main Street Buildings litigation, an issue arose with respect to
the obligation of Conlon Construction's insurer, St. Paul Fire & Marine Insurance
Company, to defend the City in the litigation. St. Paul initially took the position that it did
not have an obligation to defend the City against some of the claims. The Iowa
Communities Assurance Pool, the City's insurer, defended the City and then brought an
action in the City's name against St. Paul and Conlon Construction Company, asking
the Court to determine the obligation of St. Paul to defend the City.
The coverage was resolved and St. Paul did defend the City in the litigation. Now that
the litigation has been concluded, with the exception of the Maxim Technologies claim
being defended by ICAP, all of the issues of coverage with St. Paul have been resolved.
The City is now being asked to approve the attached Release and Indemnity Agreement
which acknowledges that the coverage issues have been resol'
longer has any claim against Conlon Construction Company o~
Insurance Company for the handling of the Main Street litigation
who represented us in the Main Street litigation and who cont
the Maxim Technologies claim, has approved the Release, a:
Public Entity Risk Services.
I recommend that the City Council approve the Release and In
authorize me to sign it on behalf of the City of Dubuque.
,ed and that the City no
St. Paul Fire & Marine
. Attorney Les Reddick,
hues to represent us in
has Frank Miller from
lemnity Agreement and
Service People Integrity Responsibility Innovation Teamwork
BAL:tls
Attachment
cc: Michael Van Milligen, City Manager
Very/~erely,
Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Les Reddick, Esq.
RELEASE AND INDEMNITY AGREEMENT
The undersigned, as duly authorized representative of The City of Dubuque, Iowa, being
of legal age, acknowledges receipt of payment in the sum of Sixty-Six Thousand Dollars
($66,000) plus the attorney fees for the defense of the City of Dubuque for the Plaintiffs' claim
in the litigation described in paragraph (a) below in consideration of which payment The City of
Dubuque, Iowa, does release, acquit and forever discharge St. Paul Fire & Marine Insurance
Company, Conlon Construction Company and all of their parents, owners, predecessors,
successors, agents, attorneys, employees, representatives, affiliates, subsidiaries, directors,
officers, indemnitors, insurers, reinsurers, and assigns, from any and all liability whatsoever,
including all claims, demands and causes of action of every nature affecting The City of
Dubuque, Iowa, which it may have or ever claim to have by reason of:
(a)
The adjustment, handling and/or defense of a lawsuit brought against
~2ae City of Dubuque, Iowa, captioned "Steven AlthoJf; MM&H Corporation;
Guy A. Gar& Ellen M. Willis; Dm;idA. Willis; and Clark VK Wolff, Plaintiffs vs.
The City of Dubuque; Cordon Construction Co.; Schnabel Foundation Company;
Blackhawk Foundation Company; Vedi Associates, Inc.; Maxim Technologies,
Inc.; Harbor View Development, L.L.C.; and Allen and Urbain Arctfitects and
Construction Managers, Inc., Defend, ants," w~ch was filed in Dubuque County,
Iowa District Court, on or about June 1 I, 2001, and any resulting duty owed by
St. Paul Fire & Marine Insurance Company and Cordon Construction Company
to provide liability insurance coverage, indemnity and/or a defense to this laxvsuit
to The City of Dubuque, Iowa, p~trsuant to (1) St. Paul Fire & Marine Insurance
Company Policy #KK08000786; (2) the "Improvement Contract" entered into
between Cordon Construction and The City of Dubuque, Iowa, on or about
August 8, 2000 and/or (3) any other contracts, agreements or insurance policies
existing between The City of Dubuque, Iowa, Cordon Construction Company and
St. Paul Fire & Marine Insurance Company;
(b)
The adjustment, handling and/or defense of a lawsuit brought against The City of
Dubuque, Io~va, captioned "Steven Althoff; MM&H Corporation; Guy A. Gar&
Ellen M. Willis; David A. Willis; and Clark I;K Wolff, Plaintiffs. vs. The City of
Dubuque; Conlon Construction Co.; Schnabel Foundation Company; Blackhawk
Foundation Company; Vedi Associates, Inc.; Maxim Technologies', Inc.; Harbor
View Development, L.L.C.; and Allen and Urbain Architects and Construction
Managers, Inc.; and CD[ Excavating, Defendants and Maxim Technologies, Inc.,
Cross-Claimant and Counter-Claim Defendant vs. The City of Dubuque and Vedi
Associates, Inc., Cross-Claim Defendants and Counterclaimants, which was filed
in Dubuque County, Iowa District Court, on or about April 10, 2003, and any
resulting duty owed by St. Paul Fire & Marine Insurance Company and Conlon
Construction Company to provide liability insurance coverage, indemnity and/or
a defense to this lawsuit to The City of Dubuque, Iowa, pursuant to (1) St. Pard
Fire & Marine Insurance Company Policy #KK08000786; (2) the "Improvement
Contract" entered into between Cordon Construction Company and The City of
Dubuque, Iowa, on or about August 8, 2000; andior (3) any other contracts,
agreements or insurance policies existing between The City of Dubuque, Iowa,
Cordon Construction Company and St. Pard Fire & Marine Insurance Company;
(c)
Any and all claims asserted in or that may have been asserted or joined with the
claims asserted in the Petition for Declaratory Judgment, No. 01311 CVCV
053016, filed in the Iowa District Court for Dubuque County on or about July 16,
2002, including amendments; and
: (d) Any matter derivative of (a), (b) and/or (c).
As further consideration of the above payment, The City of Dubuque, Iowa, also
agrees:
That this Release and Indemnity Agreement covers all injuries and damages
(including, but not limited to, engineering, repairs, testing or other investigative or
corrective expenses, defense costs, expenses and attorneys' fees) whether lmown
or not and w~ch may subsequently appear or develop arising from the matters
referred to above.
That the above payment is all that The City of Dubuque, Iowa, will receive for
those claims and no promise for any other or further consideration has been made
by anyone.
That this Release and Indemnity Agreement is executed as a compromise
settlement of a disputed claim, liability for which is expressly denied by the
parties released, and the payment of the above sum does not constitute an
admission of liability on the part of any person or entity.
4. That it is executing this Release and Indemnity Agreement solely in reliance upon
its own knowledge, belief and judgment and not upon any representations made
by the parties released or others in their behalf.
That it will dismiss its claims in the Dubuque County Case No. 01311 CVCV
053016 against the released parties with prejudice.
That it agrees to indemnify, hold harmless, and defend the released parties from
any claims, liens, subrogated interests or suits of the Iowa Community Assurance
Pool and the Public Entity Risk Service of Iowa.
That I have read the foregoing Release and Indemnity & Agreement and understand its
terms amd freely and voluntarily sign the same.
Word and phrases herein shall be construed as in the singular or plural number, and as
masculine, feminine or neuter gender, according to the context.
Dated at this __ day of 2004.
CAUTION: TItIS IS A RELEASE -- READ BEFORE SIGNING.*
as the duly
authorized representative of The City of Dubuque, Iowa.
STATE OF IOWA
COUSqTY OF DUBUQUE
)
) SS:
)
Subscribed and sworn to before me by
representative of The City of Dubuque, Iowa, this __
., as the duly authorized
day of ,2004.
Notary Public-State of Iowa
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