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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 S:\Mew\0947-0319 AlthofiSplead\Release chmlges20040130.rff6304