10-204 Resolution No. 10-204
RESOLUTION
AUTHORIZING EXECUTION OF A SETTLEMENT AGREEMENT AND RELEASE
WITH RYAN INCORPORATED CENTRAL AND
SPEARS MANUFACTURING COMPANY
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
Sean R. Stegall, City Manager, be and is hereby authorized and directed to execute a Settlement
Agreement and Release with Ryan Incorporated Central and Spears Manufacturing Company on
behalf of the City of Elgin regarding the Highlands of Elgin Golf Course,a copy of which is attached
hereto and made a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: October 27, 2010
Adopted: October 27, 2010
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is entered into as of
September 22, 2010, by and between The City of Elgin, an Illinois municipal corporation
("City"), Ryan Incorporated Central, a Wisconsin Corporation ("RIC"), and Spears
Manufacturing Company, a California corporation ("Spears"), (City, RIC, and Spears are
hereinafter jointly referred to as the "Parties").
WHEREAS, RIC entered into an agreement with the City on or about April 23,
2008 to install certain improvements at the Highlands of Elgin Golf Course and provide
related materials, labor, and equipment in relation to the same ("Prime Contract"). (The
installation of improvements and related materials, labor, and equipment in accordance
with the Prime Contract is hereinafter referred to as the "Project" and the Highlands of
Elgin Golf Course is referred to as the "Premises.") Spears supplied a portion of the
materials that were installed by RIC at the Premises under the Prime Contract as part of
the Project.
WHEREAS, the City has alleged issues with respect to the Project purportedly
resulting in the City incurring damage or potential damage, including but not limited to the
water sprinkler system installed by RIC and for which Spears supplied materials ("Sprinkler
Issues").
WHEREAS, RIC, at the demand of the City, has on a number of previous
occasions provided its labor and material to the Premises and the Project in an effort to
address the Sprinkler Issues raised by the City, as well as damage arising therefore. Ryan
has made demand for payment of these costs by Spears as well as for payment of
potential damages asserted by the City.
WHEREAS, RIC and Spears deny that they are the cause of an damages or
potential damages alleged by the City.
WHEREAS, the parties hereto, after communicating with their own freely-chosen
counsel, wish to resolve and settle all claims or potential claims, damages, losses,
allegations, assertions or causes of action, known or unknown, that the City, RIC, and
Spears may have against one another in relation to or arising from the Prime Contract or
Project, including but not limited to the Sprinkler Issues.
WHEREAS, the parties wish to amicably resolve all such claims or potential
claims, damages, losses, allegations, assertions or causes of action, known or unknown,
that the parties may have against one another in relation to or arising from the Prime
Contract or Project, including but not limited to the Sprinkler Issues, solely as a means to
avoid the costs and expenses of a protracted dispute and/or potential litigation, and
without any party admitting as to liability or fault;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations hereinafter set forth, the parties hereto agree as follows:
1. On or before September 30, 2010, Spears agrees to:
(a) Pay to the City the sum of Fifty Thousand and 00/100 Dollars
($50,000.00), simultaneously with the receipt of a fully executed copy of
this Agreement.
(b) Deliver to the City, and the City agrees to accept from Spears, those
Spears fittings and materials identified in Exhibit "A" attached hereto and
incorporated herein by reference (the "Fittings"), with the cost of delivery
to be born by Spears and the destination of said Fittings to be at a
location in Elgin, Illinois as further selected by the City, with said delivery
to be completed within thirty (30) days of Spears receiving a fully
executed copy of this Agreement, and the City being responsible for all
costs associated with removal and installation in relation to the same.
Spears agrees to and does hereby provide to the City the Spears
Manufacturing Company product limited lifetime warranty for such
Fittings as set forth in Exhibit A attached hereto (the "Warranty for the
Fittings"). Said parties understand and agree that such Warranty for the
Fittings is excluded from the release being provided by the City in
Paragraph 3 hereof.
2. RIC on behalf of itself, its parents, subsidiaries, and affiliates and their
respective officers, directors, stockholders, agents, employees, attorneys, servants,
insurers, representatives, successors and assigns, does hereby remise, release and
forever discharge Spears and the City, and their parents, subsidiaries, and affiliates and
their respective officers, directors, stockholders, agents, employees, attorneys, servants,
insurers, representatives, successors and assigns from all claims, demands, damages,
losses, rights and causes of action (inchoate or otherwise), which RIC now has or may
have against Spears or the City, whether known or unknown, as of the date of this
Agreement, which arise from or relate to the Project, Prime Contract, or the materials,
labor, or equipment supplied or installed in relation to the same, including but not limited to
the Sprinkler Issues..
3. The City on behalf of itself, its parents, subsidiaries, and affiliates and their
respective officers, directors, stockholders, agents, employees, attorneys, servants,
insurers, representatives, successors and assigns, does, with the sole exception of the
Warranty for the Fittings referred to in Paragraph 1(b) hereof, being provided by Spears,
hereby remise, release and forever discharge Spears and RIC, and their parents,
subsidiaries, and affiliates and their respective officers, directors, stockholders, agents,
employees, attorneys, servants, insurers, representatives, successors and assigns from all
claims, demands, damages, losses, rights and causes of action (inchoate or otherwise),
which the City now has or may have against Spears or RIC, whether known or unknown,
as of the date of this Agreement, which arise from or relate to the Project, Prime Contract,
or the materials, labor, or equipment supplied or installed in relation to the same, including
but not limited to the Sprinkler Issues.
4. Spears on behalf of itself, its parents, subsidiaries, and affiliates and their
respective officers, directors, stockholders, agents, employees, attorneys, servants,
insurers, representatives, successors and assigns, does hereby remise, release and
2
forever discharge RIC and the City, and their parents, subsidiaries, and affiliates and their
respective officers, directors, stockholders, agents, employees, attorneys, servants,
insurers, representatives, successors and assigns from all claims, demands, damages,
losses, rights and causes of action (inchoate or otherwise), which Spears now has or may
have against RIC or the City, whether known or unknown, as of the date of this
Agreement, which arise from or relate to the Project, Prime Contract, or the materials,
labor, or equipment supplied or installed in relation to the same, including but not limited to
the Sprinkler Issues.
5. This Agreement constitutes the entire agreement between the parties hereto
and supersedes all agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter of this
Agreement. No party hereto has in any way relied, nor shall in any way rely, upon any oral
or written agreements, representations, warranties, statements, promises or
understandings made by any other party, any agent or attorney of any other party or any
other person unless such agreement, representation, warranty, statement, promise or
understanding is specifically set forth in this Agreement. No party hereto nor any of his or
its attorneys shall be bound by or charged with any statements, promises, or
understandings not specifically set forth in this Agreement.
6. Each party has relied upon the advice and representation of counsel of his or
its own selection and has been fully advised as to the legal effect of this Agreement and
has executed this Agreement as his or its own free and voluntary act.
7. The provisions contained in this Agreement shall bind and inure to the
benefit of the parties, and their respective employees, partners, agents, representatives,
successors, assigns, heirs, affiliates and legal representatives.
8. This Agreement is executed by the parties for the sole purpose of
compromising and settling potential and/or purported issues concerning and/or arising
from the Project and/or Prime Contract. It is expressly understood and agreed that, as a
condition of this Agreement, this Agreement shall not constitute nor be construed to be an
admission, or indicating in any degree an admission of the truth or correctness of any of
the allegations or purported issues, including but not limited to the Sprinkler Issues.
9. This Agreement may be executed in counterparts, and any number of
counterparts signed in the aggregate by the parties will constitute a single, original
instrument, and signatures of the parties by facsimile shall be binding.
10. This Agreement is governed by and to be construed in accordance with the
laws of Illinois.
11 . This Agreement may not be modified or amended except by a writing signed
by the party against whom the enforcement of such modification or amendment is sought.
12. The recitals in this Agreement are to be read as part of this Agreement and
specifically incorporated herein.
3
13. Descriptive headings in this Agreement are for convenience only and will not
control or affect the meaning of construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective corporate names by a proper officer or representative duly
authorized to do so as of the dates indicated.
THE CITY OF ELGIN, ILLINOIS RYAN INCORPORATED CENTRAL
ICJ
By: Se14W
tegall <.
Its: Its :r S At —
City Manager
SPEARS MANUFA RING COMPANY
01%
By: ,.fIWS
Its: D t 12_6e rote on/1 LAL
4
Parts List for Highlands of Elgin GC
225 429-020 2 PVC COUPLING SOC SCH40
150 S119-20 2 PVC REPAIR COUPLING SOCXSOC
75 401-020T 2 PVC TEE SOC CLASS 315
12 406-020T 2 PVC 90 SOC CLASS 315
10 FS5-030 QT CPVC FIRE SPRINKLER ONE-STEP CEMENT
Exhibit A
rE.....1
iir SPEARS MANUFACTURING COMPANY
PRODUCT LIMITED LIFETIME WARRANTY
Except as otherwise mandated by law or herein provided,Spears' Manufacturing Company ("Company")warrants Standard Catalog
Products("Products")which have been directly manufactured by them to be free from defects in material and workmanship for as long as the
original intended end user of the Products("End User")retains ownership and possession of the Products and complies with this Warranty
("Warranty Period"). Each other person or entity acquiring or employing the Products, including buyers, contractors and installers
("Buyer")and End Users("Buyer/End User")agrees that this Warranty shall be effective only during the Warranty Period so long as the
Products are used solely for the normal purposes for which they are intended and in conformance with industry established standards,
engineering,installation,operating,and maintenance specifications,recommendations and instructions including explicit instructions by
the Company;the Products are properly installed,operated and used,and have not been modified;and all the other terms of this Warranty
are complied with.Any violation thereof shall void this Warranty and relieve Company from all obligations arising from this Warranty and
the Products.
Upon receipt or discovery of any Products that appear questionable or defective each Buyer/End User shall promptly inspect and return any
such Product to the Company at 15853 Olden Street,Sylmar,California 91342.accompanied by a letter stating the nature of any problems.
If the Products arc determined by Company to be defective in materials or workmanship directly provided by Company,Company,at its
sole option,may either repair or replace the defective Products,or reimburse applicable Buyer/End User for the cost of such Products.The
applicable Buyer/End User shall bear all applicable shipping costs. THIS SHALL BE BUYERS/END USERS'SOLE REMEDY.EACH
BUYER/END USER AGREES THAT COMPANY WILL NOT BE RESPONSIBLE FOR ANY OTHER OBLIGATIONS RELATING TO
THE PRODUCTS,INCLUDING ANY OTHER MATERIALS OR LABOR COSTS,LOSS OF USE OR ANY OTHER ITEM OR FOR
ANY DELAYS IN COMPLYING WITH THIS WARRANTY BEYOND COMPANY'S REASONABLE CONTROL.
COMPANY SHALL NOT BE LIABLE FOR, DOES NOT ASSUME. AND EXPRESSLY DISCLAIMS, ANY LIABILITY,
RESPONSIBILITY AND DAMAGES: DUE TO ANY BUYER/END USER'S FAILURE TO COMPLY WITH THIS WARRANTY,
INCLUDING IMPROPER INSTALLATION,USE OR OPERATION;USE WITH PRODUCTS FROM OTHER MANUFACTURERS
THAT DO NOT MEET ASTM OR OTHER APPLICABLE PRODUCT STANDARDS; IMPROPER CONTROL OF SYSTEM
HYDRAULICS,IMPROPER WINTERIZATION PROCEDURES.IMPROPER VOLTAGE SUPPLY,CONTACT WITH INCOMPATIBLE
MATERIALS OR CHEMICALS, EXCAVATION/DIGGING,EXCESSIVE WEIGHT,AND VANDALISM; DUE TO REASONABLE
WEAR AND TEAR AND DUE TO ANY ACTS OF NATURE.INCLUDING LIGHTNING,EARTHQUAKES.GROUND MOVEMENT.
FROST HEAVE,OR FLOODS.
COMPANY EXTENDS ONLY THIS WARRANTY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER
IMPLIED OR. OTHERWISE EXPRESSED, WHETHER ORAL, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED
WARRANTIES OR AFFIRMATIONS FOR SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NO AFFIRMATION BY COMPANY OR ANY OF ITS REPRESENTATIVES,BY WORDS,CONDUCT OR OTHERWISE,SHALL
CONSTITUTE A WARRANTY. THIS WARRANTY MAY NOT BE TRANSFERRED, EXTENDED,ALTERED OR OTHERWISE
MODIFIED IN ANY MANNER,EXCEPT BY WRITTEN AGREEMENT SIGNED BY COMPANY.
BY ITS ACCEPTANCE OF THE PRODUCTS, EACH BUYER/END USER EXPRESSLY WAIVES ALL OTHER LIABILITY OR
OBLIGATION OF ANY KIND OR CHARACTER OF COMPANY,INCLUDING LIABILITY PREDICATED UPON CONTRACT,
TORT,STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE GROUNDS,AND ALL,IF ANY,DAMAGES AND LOSSES AS
A RESULT THEREOF.INCLUDING ALL,IF ANY,COMPENSATORY,GENERAL.SPECIAL,CONSEQUENTIAL.INCIDENTAL,
OR PUNITIVE DAMAGES. WITH RESPECT TO SUCH WAIVERS, EACH BUYER/END USER EXPLICITLY WAIVES
CALIFORNIA CIVIL CODE $1542 WHICH STATES"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THIS RELEASE,WHICH
IF KNOWN BY HIM MUST HAVE MATERIALLY ADVERSELY AFFECTED HIS SETTLEMENT WITH DEBTOR"AND ALL
OTHER SIMILAR STATUTORY.COMMON AND CASE LAW RIGHTS.DEFENSES AND LIMITATIONS.
Having previously independently inspected the Products,or a sample,as fully as desired,or having the opportunity to and having not done
so,upon acceptance of delivery of the Products,and except as otherwise herein explicitly provided,each Buyer/End User by acceptance
or use of the Products accepts them in their"AS IS"and"WITH ALL FAULTS"condition without any other warranty,expressed,implied
or otherwise,and accepts and assumes the entire risk and cost of all servicing,remediation and consequences thereof. This Warranty shall
be governed by California law and any unenforceable provisions severed without affecting the remaining provisions. As used herein,
"including"includes"without limitation."
f n SPEARS MANUFACTURING COMPANY•CORPORATE OFFICE 0"'`
41101
15853 Olden St,Sylmar,CA 91342.PO Box 9203,Sylmar,CA 91392
(818)364-1611'www.spearsmfg.com
•CeprInbt 2010 Spun°Mrud•eNMic Cowpony.AM Rgkis Rommel PMMW Into UMW aW Wagons 02110. BCCDM
LG I N
ITY IN THE SUBURBS-
MEMORANDUM
DATE: 15 October 2010
TO: Barbara Furman, Legal Secretary
FROM: Richard G. Kozal, Assistant City Manager
SUBJECT: Settlement and Release Agreement with Ryan Incorporated Central and
Spears Manufacturing Company
Attached are two, duplicate original documents of the Settlement and Release Agreement
with Ryan Incorporated Central and Spears Manufacturing Company. The city council
authorized the city manager to execute the settlement and release during executive ses-
sion.
Please arrange to have a resolution prepared so that the agreement can be approved at
the 27 October 2010 city council meeting.
• Also attached is a prepaid FedEx mailer that can be used to return the executed agree-
ment to Ryan Incorporated Central.
Thank you.
Attachment