HomeMy WebLinkAboutCAG2001-0429 - Original - Boise Mobile Equipment, Inc. - Fire Trucks - 08/27/2001 T Records M eme
KEN w.ax'x oro Documentx
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission to City Clerks Office. All
portions are to be completed, if you have questions, please contact Mary Simmons, City
Clerks Office.
Ya�gv�Name:
Contract Number.
This is assigned by Mary Simmons
Vendor Number. /
Project Name: Z&JI2,7/� l�l
Contract Effective Date:
Contract Termination Date: /TI
Contract Renewal Notice (Days): Il'�
Number of days required notice for t4rrimi1nartiion or renewal or amendment
Contract Manager:
Department: C
Abstract:
4 W.,
ADCL7832 07/02
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims is made by and between The City of Kent
(hereinafter "Kent") and Boise Mobile Equipment, Inc (hereinafter "BME"), and between BME
and Simon-Duplex, Inc (hereinafter "Simon") and American LaFrance, Inc (hereinafter "ALF")
with respect to certain claims among them
BACKGROUND
1 Kent contracted with BME to supply two Triple Combination Pumper Fire
Apparatuses, known as Vehicle Identification Numbers 1SN911771J4V1020018 and
1SN911771MV1020019, and/or City of Kent Apparatus nos 706 and 708, (hereinafter "Fire
Trucks") for the Kent Fire Department
2 BME contracted with Simon to supply the chassis and cabs for the Fire Trucks,
3 Simon contracted with ALF to provide certain of Simon's warranty services with
respect to the Fire Trucks
4 Kent initiated an action against BME, captioned City of Kent v Boise Mobile
Equipment, Inc , et al , US. District Court for the Western District of Washington Cause
No C00-502C (hereinafter "Litigation"), alleging certain defects in the Fire Trucks, and also
alleging breach of contract on the part of BME BME filed a Third Party Complaint in the
Litigation against Simon and ALF, alleging, among other claims, breach of contract and
indemnification for any recovery by Kent BME also filed an action against Simon and ALF in
the U S District Court of Idaho, captioned Boise Mobile Equipment, Inc v Simon-Duplex, Inc
00000i00000
SeltlementAgieement-FINAL IOC
et al., Cause No CW00-0061-S-EX, (hereinafter "Idaho Action"), which has been stayed
pending resolution of this Litigation
5 Kent, BME, Simon and ALF, for the sole purpose of avoiding the uncertainties
and inconveniences of further litigation, and the expenses attendant thereto, wish to fully resolve,
compromise, and settle any and all claims of any nature among them ansmg from the Fire Trucks
which were asserted or could have been asserted in the Litigation, pursuant to the terms of this
Agreement
AGREEMENT
6. For the sole consideration of Five Hundred Twenty Five Thousand Dollars
($525,000), the provisions of paragraphs 9, 10 and 13 below, and the mutual releases contained
herein, Kent does on behalf of itself, its officials, employees, successors and assigns release and
forever discharge BME, Simon and ALF, their stockholders, officers, employees, assigns,
successors, parents, subsidiaries, related companies, subcontractors, suppliers, subconsultants,
representatives, agents, directors, insurers, reinsurers, attorneys, and predecessors from any and
all claims, demands, rights, actions or causes of action, known or unknown, contingent or
matured, on account of or in any way whatsoever growing out of or relating to the Fire Trucks,
including but not limited to claims which were alleged or could have been alleged in the
Litigation Payment of the settlement amount set forth herein shall be made within 10 days of
execution of this agreement by all parties
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS-2
7 BME, Simon and ALF shall contribute funds to the settlement set out in the
preceding paragraph in the following amounts BME: $390,000; Simon: $90,000, and ALP
$45,000.
8 For the sole consideration of the mutual releases herein, and the obligations
assumed in this Agreement, BME, Simon, ALF and Kent do on behalf of themselves, their
stockholders, officers, officials, employees, parents, subsidiaries, related companies,
subcontractors, suppliers, subconsultants, representatives, agents, directors, insurers, reinsurers,
attorneys, and predecessors release and forever discharge each other, and their stockholders,
officials, officers, employees, parents, subsidiaries, related companies, subcontractors, suppliers,
subconsultants, representatives, agents, directors, insurers, reinsurers, attorneys, and predecessors
from any and all claims, demands, rights, actions or causes of action, known or unknown,
contingent or matured, on account of or in any way whatsoever growing out of or relating to the
Fire Trucks, including but not limited to claims which were alleged or could have been alleged in
the Litigation, including counter-claims, cross-claims, and third party claims Further, Simon
and ALF similarly release each other and their stockholders, officers, officials, employees,
assigns, successors, parents, subsidiaries, related companies, subcontractors, suppliers,
subconsultants, representatives, agents, directors, insurers, reinsurers, attorneys, and predecessors
from all claims of any kind ansmg from any agreements previously entered into between them, as
such claims may relate to the subject Fire Trucks or the issues in this Litigation.
9 Kent will promptly transfer title to the Fire Trucks to BME upon payment of the
settlement amount herein Kent will cooperate reasonably with BME to accomplish the transfer
of title
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS-3
10. BME shall indemnify and hold Kent harmless from any claims that may be made
against Kent ansing from a resale of the Fire Trucks by BME to a third party or parties
II ALF agrees to pay to BME the sum of $15,000 in lieu of performing certain
repairs to the Fire Trucks for the benefit of BME, to make the trucks more readily saleable.
12 ALF shall procure and provide to BME extensions of the warranties on the
engines of the subject Fire Trucks, which warranties shall run to BME and any subsequent
purchaser of the trucks The warranty extensions shall provide for a warranty of three years from
the date this Agreement is fully executed, or 25,000 miles (in addition to the mileage currently on
the trucks), whichever event occurs first
13 Kent may elect to attempt to recoup from the State of Washington some or all of
the sales tax which it paid upon the original purchase of the Fire Trucks In the event Kent so
elects, BME will cooperate reasonably with Kent in that effort. The parties recognize that Kent's
acceptance of the Fire Trucks was effectively revoked.
14. In conjunction with the release of claims herein, the Parties hereby authorize and
direct their counsel to prepare and file an appropriate order dismissing with prejudice all claims
in the Litigation Additionally, BME shall dismiss with prejudice the Idaho Action currently
pending in the U.S District Court of Idaho
Each Party to this Agreement agrees to execute and deliver all documents, and to
cooperate and perform all additional actions which may be reasonably necessary to carry out the
provisions of this Agreement and to give full force and effect to the terms and intent of this
Agreement
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS-4
15 This Agreement shall be construed and enforced in accordance with, and governed
by, the laws of the state of Washington This Agreement has been drafted Jointly by the Parties
following negotiations between them It shall be construed according to its terms and not for or
against any Party.
In the event that any Party hereto shall institute proceedings related to this Agreement,
venue shall he in King County, Washington and the prevailing Party shall be entitled to be
reimbursed for its reasonable costs, expenses and attorneys' fees incurred.
16 The parties agree that in the event of disagreement or dispute between any of them
as to the terms of settlement agreed to in the mediation of June 27, 2001, or the reduction of
those terms into this Agreement, mediator Peter D Byrnes is appointed as arbitrator to conduct
binding arbitration of any such dispute
17 With the exception of the obligations expressly undertaken by the Parties pursuant
to this Agreement, nothing herein is intended to constitute an admission of liability by any Party
with respect to any or all of the claims released, waived and discharged hereunder. It is expressly
understood and agreed that BME, Simon and ALF have denied liability for the claims asserted by
Kent, that the compromise and settlement of these claims is not an admission of liability, breach
of contract or negligence, and that this Settlement Agreement and Release of Claims shall in no
way be construed as an admission of liability at any time or in any manner whatsoever
18 Each Party hereto acknowledges and warrants that it has been represented by
independent legal counsel of its choice throughout all negotiations which preceded the execution
of this Agreement Each Party has read or had read to it all of this Agreement, or had it
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS-5
explained to it by its attorney, and each Party fully understands all of the terms used and their
significance Each Party, having been fully advised as to the legal effect of this Agreement, has
executed this instrument freely and voluntarily for the purpose of making a full and final
compromise and settlement of any and all claims which were alleged or could have been alleged
in the Litigation
I9 This instrument contains the entire Agreement and understanding concerning the
subject matter hereof between the Parties and supersedes and replaces all prior negotiations,
proposed agreements and agreements, written or oral Each of the Parties hereto acknowledges
that no Party hereto nor any agent or attorney of any other Party whatsoever has made any
promise, representation or warranty, express or implied, not contained herein, concerning the
subject matter hereof to induce it to execute this Agreement Each of the Parties further
acknowledges that it is not executing this Agreement in reliance on any promise, representation
or warranty not contained herein This Agreement may not be supplemented, modified, or
amended in any manner, except by written agreement among the Parties.
20 Each of the Parties hereto warrants and represents that it has not heretofore
assigned or transferred or purported to assign or transfer any claims released hereunder to any
third party. Each of the Parties hereto covenants, represents and warrants that it has all authority
necessary to execute this Agreement, and upon execution, this Agreement will be fully binding
and enforceable in accordance with its terms No other consents or approvals of any other or
third parties are required or necessary for this Agreement to be so binding
21 This Agreement may be signed in the original, in counter-part, and/or by facsimile
transmission
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS-6
The terms and releases contained herein shall extend to obligate and inure to the benefit
of each of the Parties to this Agreement and to each of their respective officers, directors,
shareholders, subsidiaries, affiliates, parent corporations, representatives, agents, heirs,
successors, assigns, employees, officials, related companies, subcontractors, suppliers,
subconsultants, insurers, reinsurers, attorneys, and predecessors .
CITY OF KENT
r
By Date
Jim r
hate, Mayor
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Jim White is the person who
appeared before me and said person acknowledged that h&sW signed this instrument and
acknowledged it to be hisAwf free and voluntary act for the uses and purposes mentioned in the
instrument.
DATED- 222
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�3 (Print Name)
'Us'
i0 Notary P
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•M N\ My appomtmen expires
WI
BOISE MOBILE EQUIPMENT, INC
By. Date:
Richard Heaton
Its General Counsel
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS-7
and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in
the instrument
DATED
(Print Name)
Notary Public
Residing at
My appointment expires
BOISE MOBILE EQUIPMENT, INC
By Date 7 ?oaf
ichard Heaton
Its General Counsel
STATE OF IDAHO )
ss
COUNTY OF _ )
I certify that I know or have satisfactory evidence that Richard Heaton is the person who
appeared before me and said person acknowledged that he signed this instrument and
acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the
instrument
DATED
ego P «0N�•�b�� / (Pant Name)
Not ry Public
v� �O tAR Y Residing at
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STATE OF IDAHO )
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I certify that I)mow or barb seta evidmec that Richard Fleatu¢Is dw PA-MA who 1
appeared before rua and said .pam, m *a be sigaad *b insuvriaat and
ack=wledged it to be his free and valuatary sac For the uses and proposes aia rimed in the
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person who appeared bcfwe men and said ptason ac)moWledged that belsWSAnod this$ulzt tw
and acknowledged it w ben his4pdTrat:and vahwazy as for the uses and purposes mentioned In
the instrument-
DATED- __ Pk�0&d e
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AMERICAN LaFRANCE CORPORATION
By:_ Date:
Its
r?f r'c•`
STATE OF DBE )
ss.
COUNTY OF Ii,,•,__. )
I certify that I know or have satisfactory evidence that r is the
person who appeared before me and said person acknowledged that he/she signed this instrument
and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in
the instrument.
DATED:
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Notary Public
Residing at -` =�,c1 - tr.�I _1 nC • tc.c_=
My appointment expires J, X
OMIAL SEAL
DAMES N.TOMRES
NOTARY PUBLIC-0BE00N
COMMISSION NO 3368B8
MY COMMISSION BM MY 26.2004
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS-9