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HomeMy WebLinkAboutResolution 9800RESOLUTION NO.9800 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPROVING SETTLEMENT AGREEMENT AND GENERAL RELEASE WITH AE2S LLC WHEREAS, effective March 26, 2019, Mounds View and AE2S INC. entered into an Agreement Between Owner and Engineering for Professional Services (the "Engineer Contract") for AE2S to provide engineering and related services for the 2019 Water Treatment Plant ("WTP") Rehabilitation Project, which included WTP Facilities Nos.: 1, 2, and 3 and the water pressure Booster Station Facility located in the City of Mounds View, Minnesota (collectively, the "Property"); WHEREAS, the 2019 Water Treatment Plant Rehabilitation Project was divided into two phases to be separately put out for bid, with the first phase comprising, among other things, the rehabilitation and construction of WTP Facilities 2 and 3 ("Project"); WHEREAS, on or about December 31, 2019, following a Public Bid, Mounds View awarded the Project's contract for construction to Shank Constructors, Inc. ("Shank") pursuant to which Shank would serve as the Project's General Contractor (the "Construction Contract"); WHEREAS, effective January 31, 2020, Mounds View and AE2S INC. entered into an Amendment to Owner -Engineer Agreement for additional services to be performed by AE2S INC. regarding the Project's Construction Phase, Post -Construction Phase, and Construction Phase Instrumentation and Control Services (the "Amendment"); WHEREAS, by letter dated November 25, 2020, from Mounds View to Shank, Mounds View sought a recovery schedule for the ongoing delay of completion of the Project; WHEREAS, by letter dated December 18, 2020, to AE2S INC., Shank requested an equitable adjustment in the Contract Time and reserved its right to seek one in the Contract Price. Shank contended that the Project was delayed, in part, due to numerous design changes and their impact on the sequencing of Shank's work; WHEREAS, effective January 22, 2021, Mounds View and Shank entered into a Tolling Agreement regarding the Project; WHEREAS, following start-up of the Project, Mounds View experienced issues with media loss in WTP Nos.: 2 and 3; and, in or about August 2021, Mounds View found media in the distribution system and in the backwash collection tank (collectively, the "Media Issue"); BE295\365\894969.v2 WHEREAS, in or about October 2021, Frontier Precision performed a floor inspection survey in the WTP No. 2 filter cells, which showed that the underdrain nozzles installed at varying elevation in cells 1 and 3 (the "Underdrain Issue"); WHEREAS, in or about 2022, Mounds View retained Barr Engineering Co. (`Barr") to conduct testing on the WTP filters to measure media loss in same; WHEREAS, on May 19, 2022, Shank served Mounds View with a Summons and Complaint (the "Action"), which asserted Causes of Action against Mounds View for Breach of Contract, Breach of Implied Warranties, and Unjust Enrichment regarding the Project. In the Action, Shank alleged that AE2S Inc.'s Specifications were deficient, which purportedly caused damage to the WTP that Shank was required to repair. Shank contended that it was owed a sum from the Construction Contract and additional Work performed due to AE2S INC'S alleged errors and/or omissions; WHEREAS, effective June 27, 2022, AE2S LLC and Mounds View signed a Tolling and Mutual Cooperation Agreement to pause the running of the applicable Statute of Limitations with respect to Mounds View's potential claims against AE2S INC. and/or AE2S LLC (the "AE2S Tolling Agreement"); WHEREAS, Barr performed testing in 2022 and 2023; and, on April 14, 2023, Barr issued a Water Treatment Plans 2 and 3 Filter Evaluation to Mounds View in which Barr opined: (1) on the root cause of the Media Issue, (2) that air was entering the underdrain during backwash, which was disrupting the gravel, (3) on the insufficient drain down of cells prior to the air and water backwash, and (4) the improper installation of the underdrain laterals, which were canted to one side (the "Barr Report"); WHEREAS, on April 14, 2023, Shank filed the Action with the District Court, Second Judicial District, Ramsey County, Minnesota. Neither Shank nor Mounds View named AE2S INC. and/or AE2S LLC as a party to the Action; WHEREAS, the Parties have engaged in settlement negotiations in an attempt to resolve their respective claims against each other without the need for further legal action and expense; and WHEREAS, the Parties have determined that it is in their best interest to avoid further costs and delays in resolving the claims, disputes, causes of action, and potential causes of action between them involving the Media Issues, Underdrain Issues and the Action and in the AE2S Tolling Agreement (collectively, the "Released Claims," as defined in the Settlement Agreement). As such, AE2S LLC and Mounds View now desire to, and have agreed to, compromise and fully and completely settle and resolve any and all of the claims, disputes, causes of action, and potential causes of action by, between and/or among them including, but not limited to, any and all claims that either Party asserted, could have asserted, or should have asserted against the other Party relating to, regarding and/or arising out of the Released Claims; and, wish to memorialize the terms and conditions in this Agreement. 2 BE295\365\894969.v2 NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Mounds View, Minnesota that the Settlement Agreement and General Release is approved in substantially the form presented to the City Council on the date of this Resolution, subject only to modifications that are approved by the City Attorney and do not alter the general substance of the agreement. NOW, THEREFORE, BE IT FURTHER RESOLVED, by the City Council of the City of Mounds View, Minnesota that the proper City staff and officials are authorized to execute the final version of the Settlement Agreement and General Release and take all actions necessary to perform the City's obligations under the Contract as a whole, including without limitation, the execution of any documents to which the City is a party referenced in or attached to the Settlement Agreement and General Release, and any deed or other documents necessary, all as described in the Settlement Agreement and General Release. Adopted by the City Council of the City of Mounds View this 141h day of August, 2023. Gary le lhause, Acting Mayor ATTEST: VAJ yle Zi und, City Administrator 3 BE295\365\894969.v2 SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASES This SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASES (the "Agreement") is made by and between the City of Mounds View, Minnesota ("Mounds View") and Advanced Engineering and Environmental Services, LLC ("AE2S LLC") f/k/a Advanced Engineering and Environmental Services, Inc. ("AE2S INC.")'. AE2S INC., AE2S LLC, and Mounds View are each individually a "Party" and collectively the "Parties". I. RECITALS WHEREAS, effective March 26, 2019, Mounds View and AE2S INC. entered into an Agreement Between Owner and Engineer for Professional Services (the "Engineer Contract") for AE2S to provide engineering and related services for the 2019 Water Treatment Plant ("WTP") Rehabilitation Project (the "Rehabilitation Project"), which included WTP Facilities Nos.: 1, 2, and 3 and the water pressure Booster Station Facility located in the City of Mounds View, Minnesota (collectively, the "Property"); WHEREAS, the Rehabilitation Project was divided into two phases that Mounds View separately put out for public bidding, with the first phase including, but not limited to, the rehabilitation and construction of WTP Nos.: 2 and 3 (the "Project"); WHEREAS, on or about December 31, 2019, following the public bidding for the Project, Mounds View awarded the Project's contract for construction to Shank Constructors, Inc. ("Shank") pursuant to which Shank would serve as the Project's General Contractor (the "Construction Contract"); WHEREAS, effective January 31, 2020, Mounds View and AE2S INC. entered into an Amendment to Owner -Engineer Agreement for additional services to be performed by AE2S INC. regarding the Project's Construction Phase, Post -Construction Phase, and Construction Phase Instrumentation and Control Services (the "Amendment"); WHEREAS, by letter dated November 25, 2020, to Shank, Mounds View sought a recovery schedule for the ongoing delay of completion of the Project; WHEREAS, by letter dated December 18, 2020, to AE2S INC., Shank requested an equitable adjustment in the Contract Time and reserved its right to seek one in the Contract Price. Shank contended that the Project was delayed, in part, due to numerous design changes and their impact on the sequencing of Shank's work; WHEREAS, effective January 22, 2021, Mounds View and Shank entered into a Tolling Agreement regarding the Project; ' Effective January 1, 2021, Advanced Engineering and Environmental Services, Inc. converted from a Corporation to a Limited Liability Company; and, henceforth was known as Advanced Engineering and Environmental Services, LLC. 1 WHEREAS, following start-up of the Project, Mounds View experienced issues with media loss in WTP Nos.: 2 and 3; and, in or about August 2021, Mounds View found media in the distribution system and in the backwash collection tank (collectively, the "Media Issue"); WHEREAS, in or about October 2021, Frontier Precision performed a floor inspection survey in the WTP No. 2 filter cells, which showed that the underdrain nozzles had been installed at varying elevations in cells 1 and 3 (the "Underdrain Issue"); WHEREAS, in or about 2022, Mounds View retained Barr Engineering Co. ("Barr") to conduct testing on the WTP filters to measure media loss in same; WHEREAS, on January 20, 2022, Shank submitted a certified claim (i.e., PCO No. 25) for additional compensation to Mounds View, which demanded payment for alleged delay, disruption, acceleration costs, and costs for extra work that Shank performed on the Project; WHEREAS, on May 19, 2022, Shank served Mounds View with a Summons and Complaint (the "Action"), which asserted causes of action against Mounds View for Breach of Contract, Breach of Implied Warranties, and Unjust Enrichment regarding the Project. In the Action, Shank alleged that AE2S INC.'s Plans and Specifications were deficient; and, as a result of said improper design, the Project's air vents do not properly operate, which purportedly caused damage to the WTP that Mounds View then required Shank to repair. Shank contended that it was owed a sum from the Construction Contract and additional work performed due to AE2S INC.'S and AE2S LLC's alleged errors and/or omissions; WHEREAS, effective June 27, 2022, AE2S LLC and Mounds View signed a Tolling and Mutual Cooperation Agreement to pause the running of the applicable Statute of Limitations with respect to Mounds View's potential claims against AE2S INC. and/or AE2S LLC (the "AE2S Tolling Agreement"); WHEREAS, Barr performed testing in 2022 and 2023; and, on April 14, 2023, Barr issued a "Water Treatment Plants 2 and 3 Filter Evaluation" to Mounds View in which Barr opined: (1) on the root cause of the Media Issue, (2) that air was entering the underdrain during backwash, which was disrupting the gravel, (3) on the insufficient drain down of cells prior to the air and water backwash, and (4) the improper installation of the underdrain laterals, which were canted to one side (the "Barr Report"); WHEREAS, on April 14, 2023, Shank filed the Action with the District Court, Second Judicial District, Ramsey County, Minnesota. Neither Shank nor Mounds View named AE2S INC. and/or AE2S LLC as a party to the Action; WHEREAS, the Parties have engaged in settlement negotiations in an attempt to resolve their respective claims against each other without the need for further legal action and expense; and WHEREAS, the Parties have determined that it is in their best interest to avoid further costs and delays in resolving all of the claims, disputes, causes of action, and potential causes of action between them involving the Media Issues and the Underdrain Issues, and as alleged in the Action, 2 the AE2S Tolling Agreement, and the Barr Report (collectively, the "Settled Claims"). As such, the Parties now desire to, and have agreed to, compromise and fully and completely settle and resolve any and all of the claims, disputes, causes of action, and potential causes of action by, between and/or among them including, but not limited to, any and all claims that any Party asserted, could have asserted, or should have asserted against the other Parties relating to, regarding and/or arising out of the Settled Claims; and, wish to memorialize the terms and conditions in this Agreement. NOW, THEREFORE, in exchange for the mutual agreements, covenants, promises, conditions, representations, and warranties contained herein, and in consideration for the execution of this Agreement and payment in the amount set forth herein, as well as for good and valuable consideration, the receipt and sufficiency of which are all hereby acknowledged, the Parties do each hereby stipulate and freely and voluntarily agree by and between themselves as follows: IL SETTLEMENT AGREEMENT 1. INCORPORATION OF RECITALS. The Recitals set forth above are made a part of this Agreement. The undersigned Parties acknowledge that all facts set forth above in the Recitals are true and correct to the best of the Parties' knowledge; they shall be binding in any future proceeding(s); and, they are incorporated herein as if set forth herein in their entirety. 2. EFFECTIVE DATE OF THIS AGREEMENT. The effective date of this Agreement is the date last executed by a Party (the "Effective Date"). 3. CONSIDERATION. Without making any admission of liability, and in consideration of the Parties' resolution of the Settled Claims, AE2S shall cause to be delivered to Mounds View's Counsel, Kennedy & Graven, Chartered ("K&G"), the total sum of Fifty -Nine Thousand Eight Hundred Thirty and 00/XX Dollars ($59,830.00) (the "Settlement Payment"), for the benefit of Mounds View, which Mounds View acknowledges as good and valuable consideration for this Agreement and the resolution of the Settled Claims. Within 30 days of the Effective Date of this Agreement, AE2S shall tender the Settlement Payment to K&G in a single installment unless the Parties agree to an alternative payment method and structure that satisfies the terms of this Agreement and that does not further alter any of the material terms set forth herein. 4. RELEASE OF CLAIMS. A. MUTUAL GENERAL RELEASES. In consideration for the terms of this Agreement, the Parties, for themselves and their respective predecessors, successors, assigns, parents, subsidiaries, affiliates, officers, directors, managers, partners, members, board members, shareholders, insurers, reinsurers, employees, consultants, agents, representatives, heirs, executors, and administrators, release and discharge each other Party and all of its respective predecessors, successors, assigns, parents, subsidiaries, affiliates, officers, directors, managers, partners, members, board members, shareholders, insurers, reinsurers, employees, consultants, agents, representatives, heirs, executors, and administrators, from the Settled Claims and any and all past, present, and future claims, demands, obligations, controversies, monies, actions, causes of action, lawsuits, 3 liabilities, damages, costs, expenses, and remedies based on any acts, errors, and omissions, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, direct or indirect, fixed or contingent disclosed or undisclosed, claimed or concealed, latent or patent, asserted or unasserted, arising out of or in any way related to the Settled Claims (collectively the "Released Claims"). B. CARVE -OUT. This Agreement shall not operate as a waiver or release of any rights and/or claims that may arise after the date of this Agreement unrelated to the Released Claims or that are based on breaches of this Agreement. Additionally, the Released Claims do not include future services rendered by AE2S LLC for Mounds View regarding the Property. C. INDEMNIFCATION AND HOLD HARMLESS. Further, in exchange for and as part of the consideration provided herein, and to the fullest extent permitted by law, Mounds View agrees to indemnify and hold harmless AE2S INC. and AE2S LLC and their respective past, present, and future employees, officers, directors, professionals, agents, managers, members, board members, stockholders, shareholders, attorneys, representatives, legal representatives, predecessors -in -interest, successors -in -interest, parents, affiliates, related entities, general and limited partners, assignees, insurers, reinsurers, consultants, sub -consultants, heirs, executors, administrators, and any others acting by or on behalf of AE2S INC. and/or AE2S LLC as their interests may appear, from any against all losses, costs, expenses, claims, actions, damages and/or other liabilities, known or unknown, liquidated or unliquidated, now or in the future, by any person or entity that is not a party to this Agreement including, but not limited to, Shank, arising out of or related to the Released Claims. D. FULL AND FINAL SATISFACTION. It is the intention of the Parties in executing this Agreement that this instrument shall be deemed effective as a full and final accord and satisfaction and release in regards to the Released Claims. The Parties acknowledge that they are aware that they may hereafter discover facts in addition to or different from those that they now know or believe to be true with respect to the subject matter of this Agreement; but, that it is their intention hereby to fully, finally, and forever settle and release any and all actions, claims, proceedings, matters, disputes and differences, known or unknown, arising from the Project. 5. NO ADMISSION OF LIABILITY. The Parties recognize and agree that this Settlement is the compromise of disputed claims and that the Settlement Payment, the compromise of claims hereunder, and this Agreement and the performances hereunder, are not intended nor shall they be construed or considered by anyone to be: (A.) an admission of liability by or on behalf of a Party, by whom all such liability is expressly denied, or (B.) a declaration against interest on the part of a Party; the Parties intending by this Settlement merely to avoid expensive, time-consuming, and uncertain Litigation. 11 6. STATUTES OF LIMITATION AND REPOSE. With respect to the Project and the Property, nothing in this Agreement is intended to, nor shall it: (A.) revive any Statutes of Limitation or Repose that have expired, or (B.) extend any Statutes of Limitation or Repose that may not have expired. 7. NON -ASSIGNMENT OF CLAIMS. The Parties warrant and represent to each other that there has been no assignment of all or part of any interest in any claim, right, or cause of action that is being resolved and released herein or is in any way related to, the Released Claims. 8. ENTIRE AGREEMENT. The Parties understand and agree that this Agreement contains the entire understanding of the Parties. This Agreement supersedes, merges, and replaces all written and oral agreements, express or implied, previously made or contemporaneously existing between the Parties, with respect to the subject matters addressed in the Agreement. Additionally, this Agreement is offered and accepted as final, mutual, and binding upon the Parties, regardless of whether a Party later contends that either too much or too little money and/or consideration was paid or received. Each Party agrees that it has not relied upon any statement, representation, promise, guarantee, or warrantee whatsoever, express or implied, of any other Party (or any officer, agent, partner, employee, representative, or attorney for any other Party) not contained in this Agreement in deciding to and inducing them to execute this Agreement and be bound its terms and conditions. 9. CHOICE OF LAW AND FORUM. This Agreement shall constitute a contract made under the laws of the State of Minnesota; and, in all respects is governed by the laws of the State of Minnesota. The language of this Agreement shall be construed as a whole according to its fair meaning. Venue and jurisdiction with respect to any dispute arising out of this Agreement shall be exclusively within the courts of the State of Minnesota. If a dispute arises between the Parties related to this Agreement, the Parties agree to use the following procedures to resolve the dispute: A. Negotiation. A meeting shall be held between representatives of the Parties with decision -making authority regarding the dispute to attempt in good faith to negotiate a resolution of any dispute involving the enforcement or interpretation of this Agreement. Such meeting shall be held within fourteen (14) calendar days of a Party's written request for such a meeting; B. Mediation. If the Parties fail to negotiate a resolution of the dispute, they shall submit the dispute to non -binding Mediation as a condition precedent to Litigation and shall bear equally the costs of the Mediation, which Mediation is to be convened within ninety (90) days of the meeting just noted in (A.) above; and C. Litigation. If the Parties fail to resolve the dispute through Mediation, then a Party may elect to file Litigation. 5 10. NO THIRD -PARTY BENEFICIARIES. This Agreement is made for the sole benefit of the Parties and those persons and entities released in Section 4(A.) of this Agreement. Thus, except for the Parties and those released in Section 4(A.) of this Agreement, no other person or entity not described herein shall have any rights, remedies, or privileges whatsoever under or by reason of this Agreement, either as a third -party beneficiary or otherwise. 11. WAIVER. No waiver of any of the terms and provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other term or provision, nor shall any waiver constitute a continuing waiver. No waiver of any breach or default hereunder shall be considered valid and binding unless in writing and signed by an authorized representative of the Party consenting to and giving such waiver; and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. Further, any failure to enforce any terms or conditions of this Agreement by a Party shall not constitute a waiver of any right to assert any of the terms and conditions of this Agreement. 12. MODIFICATION. This Agreement or any provision thereof may only be modified or amended by an agreement in writing and signed by an authorized representative of the Parties hereto. The Parties will execute all further and additional documents as shall be reasonable and necessary to carry out the provisions and terms of this Agreement. 13. DRAFTING. Each Party has participated, cooperated, or contributed to the drafting and preparation of this Agreement. The Parties agree that this Agreement was negotiated and drafted jointly by the Parties and that no inferences or presumptions regarding the interpretation of this Agreement shall be drawn or made by or against a Party as the author of this Agreement. This Agreement shall not be construed for or against any Party but shall be construed fairly, according to its plain meaning. 14. SEVERABILITY. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules, and regulations. The Parties agree that if any of the provisions or terms of this Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be declared or held to be invalid or unenforceable such determination shall not affect any of the other provisions or terms hereof, and such remaining provisions and terms shall remain in full force and effect, and only that provision, term or portion thereof shall be deemed omitted or severed from this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision or term had never been contained herein; provided, however, that it shall be construed in such a matter so as to enable the Parties to obtain a practical realization of all benefits contemplated to be acquired by them hereunder. 15. EXECUTION IN COUNTERPARTS. This Agreement may be executed simultaneously or in counterparts and when each Party has signed and delivered at least one counterpart, each counterpart shall be deemed an original and, when taken together with other signed counterparts, shall constitute one and the same agreement, which shall be binding and effective as to all Parties thereto. The Parties hereto agree that they may use an electronic record to make, transmit, and keep this Agreement. An Agreement containing the signature of a Party is binding on that Party once said C Party sends same to the other Parties. However, this Agreement will become effective only upon the execution of the Agreement by all of the Parties. 16. ATTORNEYS' FEES. The Parties shall bear their own costs of suit, consultant fees, engineering fees, expert fees, attorneys' fees, and other costs and expenses, of every kind or character, arising out of or relating in any way to this Agreement and the Released Claims. 17. NOTICES. All Notices permitted or required to be given under this Agreement shall be in writing and will be deemed sufficient if and when: (A.) hand delivered; (B.) sent via nationally - recognized express / overnight carrier; (C.) placed in the United States Postal Service Mail postage prepaid or by registered or certified mail, return receipt requested, postage and registration or certification charges prepaid; (D.) sent via facsimile if sent during regular business hours between 9:00 A.M. and 5:00 P.M. Central Standard Time ("CST") / Central Daylight Time ("CDT") with proof of delivery and transmission; or (E.) sent via e-mail if sent during regular business hours between 9:00 A.M. and 5:00 P.M. CST / CDT with proof of delivery and transmission, addressed as follows to the following persons / entities: If to Mounds View: City of Mounds View City Hall 2401 County Road 10 Mounds View, Minnesota 55112 ATTN: Nyle Zikmund, City Administrator If to AE2S INC. and/or AE2S LLC: With a copy to: Michelle Ellen Weinberg, Esquire Kennedy & Graven, Chartered 150 South 5 h Street, Suite #700 Minneapolis, Minnesota 55402 Advanced Engineering and Environmental Services, LLC Steven J. Sheridan, Esquire 4050 Garden View Drive, Suite #200 Fisher, Bren & Sheridan, LLP Grand Forks, North Dakota 58201 920 2nd Avenue S., Suite #975 ATTN: Jonathan L. Sickler, Chief Legal Officer Minneapolis, Minnesota 55402 18. DEFINITIONS AND HEADINGS. All capitalized terms shall have the definitions set forth in this Agreement. The Section Headings as used herein are inserted as a matter of convenience and reference only. The Headings of the various Sections of this Agreement have been included only in order to make it easier to locate the subject matter covered by each provision. The Headings shall not be deemed to: (A.) vary the content of this Agreement or the covenants, agreements and/or representations set forth herein; (B.) in any way affect the terms and provisions hereof, and (C.) define, limit and/or describe the provisions, scope and/or intent of any Section herein. Further, they are not to be used in construing this Agreement and/or in ascertaining its meaning. 19. GENERAL INTERPRETATION. Where the context of this Agreement requires, the use herein of the singular number shall be deemed to mean the plural, and the plural number shall be 7 deemed to mean the singular. Any references to gender shall be deemed to mean whichever is appropriate under the circumstances of the usage. This Agreement shall at all times be interpreted in accordance with its fair meaning. 20. AUTHORITY TO EXECUTE. The Parties hereby declare and represent that in effectuating this Settlement and executing this Agreement, each Party and/or its responsible officer has: (A.) had the opportunity to consult with legal counsel of its choice, and has in fact received independent legal advice from its Attorney(s) with respect to its rights and liabilities, all matters settled and resolved herein, and the advisability of executing this Agreement and being bound by its terms and conditions; (B.) made such investigation of the facts pertaining to this Agreement and of all matters pertaining thereto as it has independently deemed necessary; and (C.) carefully read this Agreement and understands the contents hereof. Each signatory to this Agreement represents and warrants that they are: (A.) of legal age; (B.) legally competent to execute and deliver this Agreement; (C.) duly empowered with the authority to execute and deliver this Agreement on behalf of their respective Party, thereby legally binding that Party on whose behalf they are signing; and (D.) has obtained any consent or authorization required to bind their Party to this Agreement. The Parties further warrant and represent to each other that they are legally authorized and entitled to settle and release every claim, right, or cause of action herein referred to and released and to give a valid, full, and final acquittance therefor. The Parties acknowledge and agree that this Agreement is fully and adequately supported by consideration and it is fair and reasonable. 21. LIMITATIONS ON DISCLOSURE. The Parties agree that, except as required by law (including, without limitation, Minnesota's Data Practices Act and Open Records Law (Minn. Statutes 13.01 et seq.)) or otherwise specifically permitted under this Agreement, they shall not discuss or otherwise disclose to any third party, the terms and conditions of this Agreement, the amount of the Settlement (including any reference to the range of settlement, demands, offers and/or counteroffers and all other aspects ofnegotiations between the Parties), and all non -publicly disclosed information, documents, and details about the Released Claims. The Parties further agree that, except as required by law (including without limitation, Minnesota's Data Practices Act and Open Records Law (Minn. Statutes 13.01 et seq.)) or otherwise specifically permitted under this Agreement, they and their Attorney(s) will not, directly or indirectly, discuss or otherwise disclose any of the non -publicly disclosed facts underlying this matter or the terms of the Settlement to any wire -service, newspaper, radio or television reporter, any other media representative, any legal periodical, journal, or case / settlement gathering source; and, nor will the Parties transmit any press release or other information to the media about the Agreement or its terms, and will not otherwise publish any information about the Agreement or its terms. The Parties hereto agree that they shall respond to any inquiry regarding the resolution of the matter by saying "[t]he matter was resolved to the mutual satisfaction of the parties." The Parties expressly agree that the financial terms and conditions of this Agreement may only be disclosed, on or after the Effective Date, under the following limited situations: A. by any Party if mandated by a: (i) Court Order issued by a Court of competent jurisdiction, or (ii.) tribunal, governmental or administrative agency, and the like, or as otherwise required by law including pursuant to a Public Records Request under Minnesota's Data Practices Act and Open Records Law (Minn. Statutes 13.01 et seq.), provided that the Party required to disclose or produce this Agreement or any part thereof gives the other Parties and/or their Attorney(s) immediate written notice thereof in order to afford such other Parties a reasonable opportunity to oppose a motion or request and/or enable it to seek a protective order; B. as may be necessary in the normal course of a Party's business operations and/or to accomplish necessary accounting and/or financial requirements including, but not limited to, to its attorneys, tax attorneys, accountants, auditors, business advisors, financial advisers, financial planners, insurers, and potential investors, under the terms of this Agreement; and C. by the Parties if necessary to enforce any of the Agreement's terms or to litigate over any provision of this Agreement. In that event, a Party may offer the Agreement as evidence in any judicial or other proceeding to enforce said terms and/or provisions against another Party. 22. NON -DISPARAGEMENT. Subject to applicable law, the Parties covenant and agree that neither it nor any of its respective agents, subsidiaries, affiliates, successors, assigns, officers, and key employees or directors, shall in any way disparage, call into disrepute, criticize, or otherwise defame or slander the other Parties or such other Parties' subsidiaries, affiliates, successors, assigns, officers, directors, employees, stockholders, agents, attorneys or representatives, or any of its products or services, in any manner that would damage the business or reputation of such other Parties, their products or services, or their subsidiaries, affiliates, successors, assigns, officers or former officers, directors or former directors, employees, stockholders, agents, attorneys or representatives. This Section shall not be construed to prohibit any person from responding publicly to incorrect statements or from making truthful statements when required by law, subpoena, court order, or the like. [SIGNATURE PAGES FOLLOW] 9 IN WITNESS WHEREOF, idividually and on behalf of Mounds View, intending to be legally bound, have h eunto set his / her hand and seal on this.S day of4_, 2023. cc!! U i READ BEFORE ,'I Y CITY OF MOUNDS VIEW, MINNESOTA BY: PRINT: Gary Meehlhause TITLE: A cti STATE OF MINNESOTA COUNTY OF The FOREGOING INSTRUMENT was acknowledged before me this a 8 day of ��- 20235 by g who is personally known to me or had f9oduced as identification anTwho did take an or ah, acknowledging that the above and foregoing is true and correct and that he / she executed it freely and voluntarily on his / her own behalf and on behalf of Mounds View, F ARA A BENESCH (Se Noj •,rPUBLIC •MINNEWTA 1 Art Con nuss+an Expires fan. 31, 2021 Personally known: X OR Produced Identification: _ Type of Identification Produced: IN Notary Public:r�jG� Print / Type / Stamp Name of Notary IN WITNESS WHE+`,ItE;OIi,Vkree�_4 ikb dividually and on behalf of Mounds View, intending to be legally bound, haunto set his /1►er hand and seal on this R Y davof.Owar, 2023. CAjjrrI0N: READ BE I, SIGNING CITY OF MOUNDS VIEW, MINNESOTA PRINT: TITLE: Git Admi►�istrator STATE OF MINNESOTA COUNTY OF The FOREGOING INSTRUMENT was acknowledged before me this 2 S day ❑f'�� 20235 by who is personally known to me or had produced as identifica ' an h❑ did take an oath, acknowledging that the above and foregoing is true and correct and that he / she executed it freely and voluntarily on his / her own behalf and on behalf of Mounds View. �rmrti --- '�` BARBARA A SENESCH NOTARY PUS LIC-MINNESMA H►Y Commission E rfy Jan. 31, 2W4 Personally known: 'C OR Produced Identification: _ Type of Identification Produced: 11 Notary Public: Print / Type / Stamp Name of Notary IN WITNESS WHEREOF, G+f c%v%} Mt 4 " Individually and on behalf of AE2S INC. and AE2S Ug, intending to be legally bound, have hereunto set his / her hand and seal on this ZS day of AV u , 2023. CAUTION: READ BEFORE SIGNING ADVANCED ENGINEERING AND ENVIRONMENTAL SERVICES, LLC f/k/a ADVANCED ENGINEERING AND ENVIRONMENTAL SERVICES, INC. PRINT: cca COUNTY OF �►M i � The FOREGOING INSTRUMENT was acknowledged before me this 2S 2023, by C-a�ay,I- �1.t•,,e.�' who is personally known , to me or had produced as identification and who did take an oath, acknowledging that the above and foregoing is true and correct and that he / she executed it freely and voluntarily on his / her own behalf and on behalf of AE2S INC. and AE2S LLC. (Seal) Personally known: EVELYN CLAIlA SLUITER Notary Public Minnesota My Commission Expires Jan 31, 2026 OR Produced Identification: Type of Identification Produced: 12 a Print / Type / Stamp Name of Notary