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HomeMy WebLinkAbout97- Bozeman Solvent Site .. f j i f I SETTLEMENT AGREEMENT This Settlement Agreement is executed by and between the City of Bozeman and those parties individually identified in Exhibit A (Settling Parties) which, by this reference, is made an integral part of this Agreement. RECITALS A. In 1993, the Settling Parties demanded compensation from the City of Bozeman for expenses incurred as a result of and damages arising from the contamination of groundwater in that area known as the Bozeman Solvent Site. B, In June 1995, the Settling Parties, through their counsel, served the City of Bozeman with a Notice of Intent to File Citizens' Suit under 42 U.S.C. ~ 6972(a)(1 )(b) (RCRA) and a Notice of intent to File Suit under 42 U.S.C. 9659 (CERCLA). C. The City of Bozeman and the Settling Parties have entered into negotiations in an effort to avoid any and all litigation premised upon violations of RCRA, CERCLA, CECRA (Mont. Code Ann. ~ 75-10-701 et seQ,), and all common-law theories of negligence, nuisance, and trespass. The City of Bozeman denies any liability for the groundwater contamination at the Buttrey Shopping Center and the Bozeman Solvent Site but, nevertheless, desires to fully and completely settle all claims, demands, actions, and causes of action of any kind or nature which the Settling Parties may now or in the future have relating to or arising from the groundwater contamination at the Buttrey Shopping Center and the Bozeman Solvent Site. Settlement Agreement ' Page 1 ., , j . I , AGREEMENT NOW THEREFORE, in consideration for the payment, covenants, and agreements of the parties made herein, the adequacy of which consideration is hereby acknowledged, the City of Bozeman and the Settling Parties agree as follows: 1. Payment. In consideration for the releases, promises, covenants, and other agreements referenced herein, the City of Bozeman shall pay to the Settling Parties the aggregate sum of Sixty Thousand Dollars ($60,000). This full sum is allocated as follows: (a) Fifty Thousand Dollars ($50,000) in settlement of any and all clai ms based upon CERCLA, RCRA, CECRA and all common-law bases of recovery excepting those of nuisance and trespass; and, (b) Ten Thousand Dollars ($10,000) in settlement of all claims based upon the common-law bases of nuisance and trespass. 2, Release. The Settling Parties, individually, for and in consideration of the payment above noted, do hereby completely, finally, and irrevocably release and forever discharge the City of Bozeman and its agents, attorneys, employees, environmental consultants and engineers, successors, heirs, assigns, and indemnitors, none of whom admit any liability to the Settling Parties and all of whom deny any liability for any actions, causes of action, suits, controversies, claims, damages, and demands of any and every name and nature whatsoever, particularly specifying: Settlement Agreement. Page 2 ------- " , j t a, All claims and demands for personal injury, death, property damages, medical monitoring, loss of use, and reduction of property values arising from the PCE contamination in that area commonly known as the Bozeman Solvent Site; and, b, All claims and demands of any type arising from the City of Bozeman's investigation of the PCE contamination at the Bozeman Solvent Site, the Settling Parties' claims, the handling of the Settling Parties' claims, and the timeliness and fai mess of negotiations leadi ng to this Settlement Agreement; and any claims arising under the Unfair Claims Settlement Practices Act of the State of Montana, or otherwise, for breach of any covenant of good faith and fair dealing. The Settling Parties, individually, acknowledge full satisfaction of all such claims, demands, causes of action, and actions against the City of Bozeman. The Settli ng Parties and each of them declare and represent that entering into this Settlement Agreement, they rely wholly on their own judgment, belief, and knowledge as to the nature of their damages. They specifically represent that they release all claims for damages of any type, including those that may be unknown at the present time. The Settling Parties and each of them hereby waive any right to assert in the future any claim not now known or suspected even though if such claims were known, such knowledge would materially affect the terms of the Settlement Agreement or their willingness to enter into this Settlement Agreement. The Settling Parties and each of them hereby reserve the right to prosecute any and all claims, demands, causes of action, and actions against any other person or entity Settlement Agreement ' Page 3 " . j , i who or which may be or may have been responsible for the contamination found at the Buttrey Shopping Center and/or in the Bozeman Solvent Site. By executing this Settlement Agreement, the Settling Parties and each of them acknowledge that they have not been fully compensated and do not intend to release any other person or entity who or which may be responsible for contamination at the Buttrey Shopping Center or in the Bozeman Solvent Site, 3. Covenant Not to Execute. The Settling Parties and each of them in entering into this Settlement Agreement and in reserving herein their respective right to seek damages from other persons or entities who or which may have caused contamination at the Buttrey Shopping Center and Bozeman Solvent Site, understand that the City of Bozeman may be named as a Third~Party Defendant or as a party responsible in such anticipated litigation. The Settling Parties agree and covenant that should the City of Bozeman be brought into the litigation anticipated by the Settling Parties against others or in subsequent litigation by others against the City of Bozeman on the bases of contribution, indemnity, or any other legal or equitable doctrine, that the Settling Parties will not execute on that portion of any judgment for which the City of Bozeman has been found liable and for the payment of which the City of Bozeman is legally or equitably liable to any other party to such litigation, 4. Claims AQainst Non-parties. Nothing in this Agreement is intended to be nor shall it be construed as a release, indemnity, or covenant not to sue for any claim or cause of action, past or future, in law Settlement Agreement ' Page 4 , , . or in equity, which the Settling Parties or anyone of them may have against any other person, firm, corporation, or entity, who or which is not a signatory to this Agreement. 5. No Admission of Liability. It is understood and agreed that this Agreement is intended to buy peace; is in final compromise of disputed claims; and, that payment of the consideration set forth herein or any other provision of this Agreement is not to be construed as an admission of liability on the part of the City of Bozeman for any claims made by the Settling Parties or claims that might be made in the future by anyone of the Settling Parties in relation to contamination at the Bozeman Solvent Site and Buttrey Shopping Center. The City of Bozeman specifically denies any liability and is participating in this Agreement solely to resolve disputed claims without litigation, The payment under this Agreement is not in whole or in part a fine, penalty, or monetary sanction of any kind. 6. Warranty of Capacity to Execute Aoreement. The Settling Parties and each of them represent and warrant that no other person or entity has or has had any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement. Moreover, the Settling Parties and each of them have not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations, or causes of action referred to in this Settlement Agreement. 7. Arm's Lenoth Neootiations. This Agreement is a product of arm's length negotiations. All parties to this Agreement have read this Agreement completely, have had the advice and assistance Settlement Agreement, Page 5 , ' . . I . of legal counsel with expertise in environmental matters, and have participated in the preparation of this Agreement. In the event that ambiguity exists or is deemed to exist in any provision of this Agreement, said ambiguity is not to be construed by reference to any doctrine calling for such ambiguity to be construed against a drafter of this document. 8. Entire AQreement and Successors in Interest. This Settlement Agreement contains the entire Agreement between the Settling Parties and each of them and the City of Bozeman and the respective attorneys with regard to the matters set forth herein and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each. Moreover, this Agreement sets forth the entire Agreement between the Settling Parties and the City of Bozeman and fully supersedes and terminates any and all prior agreements, understandings, and contracts, implied or expressed, written or oral, relating to the resolution of the Settling Parties' claims against the City of Bozeman. 9. Representation of Comprehension of Document. In entering into this Settlement Agreement, the parties represent that they entered into this Agreement upon the advice of legal counsel and that the terms of the Settlement Agreement have been completely read by them and that those terms are fully understood and voluntarily accepted by the Settling Parties. Moreover, this Agreement shall not be altered, amended, or modified in any respect except by writing duly executed by a representative of the City of Bozeman and by the Settling Parties, Sottlement Agrooment ' Page 6 " J " . I . . . . J . \ . 10, Construction by Law. This Settlement Agreement is entered into with the State of Montana and shall be construed and interpreted in accordance with the laws of said jurisdiction. 11, Additional Documents. The City of Bozeman and the Settling Parties hereto agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the terms and intent of this Settlement Agreement. 12. Effectiveness, This Settlement Agreement shall become effective immediately upon execution by the Settling Parties and a representative of the City of Bozeman, DATED this 5th day of May . 1997. CITY OF BOZEMAN BY: (O~ L J5~ , DON STUECK, Mayor KEN LeCLAIR flMtd,~.- ROBERT METCALF JOE MANLEY CAROL YN MANLEY . " AL MATHESON VIRGINIA MATHESON Seltloolent Agreement ' Page 7 . I '.f " . ' ' . . . . . .. I ?i' , <...,.. ..:0 1'" ~ " "/")<L,"C~ 'L-j )tt l4--~ .... -- ESTHER NELSON JAMES PATTEE . THOMAS WESSEL MARIL YN WESSEL CHARLES PARKS MRS. CHARLES PARKS APPROVED BY: BILL SHOTT CHRISTOPHER HARRIS, Attorney + --~. . Settlement Agr~nt ' Page 8 , I \ ,~ " I I ~ . . . . . ESTHER NELSON THOMAS WESSEL MARILYN WESSEL CHARLES PARKS MRS, CHARLES PARKS BILL SHOTT SHARON SETHRE APPROVED BY: ~~ CHRISTOPHE HARRiS, Attorney Settlement Agreement - Page 8 I I .. "' . t. I , ~ . , .. . . . 1":".1 r (tl.;,., '''", \.'} ,:' 101.1 J ;, ,'. \,,,,'.1 ~ ~> "1 { ESTHER NELSON JAMES PATTEE THOMAS WESSEL MARILYN WESSEL CHARLES PARKS MRS, CHARLES PARKS B/~j7 11# f5!t/fJiL 7"7 APPROVED BY: BILL SHOTT CHRISTOPHER HARRIS, Attorney -,- , Settlement Agrooment - Page 8 " f I "lI. . J. " 1 . . , , ~ , . . ',i,:1 n11",0,7 ; :';:.-' :;Yj, ESTHER NELSON JAMES PATTEE -~~ y~ /l-/:t" ) ..J Jt2n<>. ..f MA lLYN ESSEL CHARLES PARKS MRS. CHARLES PARKS APPROVED BY: BILL SHOTT CHRISTOPHER HARRIS, Attorney ~ -~.~ , Settlem6nt Agreement - Page 8 .... f "I ... . .. '( , . . " , 0.. , . . ESTHER NELSON JAMES PATTEE THOMAS WESSEL MARILYN WESSEL ~~~/l~ CHARLES PARKS ~ ,........... APPROVED BY: BILL SHOTT CHRISTOPHER HARRIS, Attorney --- Settlement Agreement ' Page 8 . ~. l"' '"t . I' J . .. ,. , ~ . . . . ESTHER NELSON JAMES D. PATTEE THOMAS WESSEL MARILYN WESSEL CHARLES PARKS MRS. CHARLES PARKS ~~~ GJ~~~-Le.-) BILL SHOTT SHARON SETHRE / APPROVED BY: CHRISTOPHER HARRIS, Attorney Settlement Agreement . Page 8 . 1 1 ci. ... ..., . I I' , . EXHIBIT A SETTLING PARTIES Ken LeClair Joe and Carolyn Manley AI and Virginia Matheson Robert Metcalf Esther Nelson James Pattee Bill Shott Thomas and Marilyn Wessel Mr. and Mrs. Charles Parks Settlement Agreement, Page 9 ~',- >".=::1 I ~~_ ':::J )' ;:::.. ...':')\.. l = .-". ri!: "!" r-- I'. ~;R L Ot...j r;r;j D STOG1ECIPHER TRUST I. .. .-. ~ ,...., -... .-.... \".-:!J~ PAYEE: :-: ,"-j ~', r; ,t ::l.' tt.t t}(:Jc:~ / c~ '-..., " (\~ I ~' I . - -- - - -- CJQ()(}O S'/12/!-?7 bij J ()\)(), "\)() .. ~ .. .. . CITY OF BOZEMAN CLAIM WARRANT TOTAL .. - WARRANT PAID THROUGH THE ~~ CITY OF BOZEMAN MONTANA AMERICAN BANK OF BOZEMAN ~~c No 1 n ~ ? -; ? (u::... ---;t. 't.\ P.O. BOX 640 :. ~ - ...~ ._'vl......~If-.. \.~ _H _,~.- 1,"- BOZEMAN, MONTANA 59715 "~~ l>> .??- _-<=,-v- 1 C)L"t2'-72 5/ i c;;=/S'! PAY $6(), (H)O. Cie) 6) "') .' . ~,," , ',^", ~ TO ~ THE HpfRRI~3.. T ARLOlt-J At-~IT ,,/~\ - ..... ,', . ORDER STONECIPHER TRUST .' OF 1439 W BABCOCK 5T - MAYOR /: -, ~..~~ BOZEf"1AN r"n 59715 :'-'-' . ..:.. 1__ _~~",'Y.:-1": -,' DIRECTOR OF FINANCE III l. 0 b 2 7 2 III 1:09 290 l. 2 271: l. 290... 50 300u. 200 . ,1-# .. ... . ) < -, . " . THE LAW FIRM MOORE, O'CONNELL & REFLING A PROFESSIONAL CORPORATION SUITE 10 I.IFE OF MONTANA BUILDING PERRY j, MOORE 601 HAGGERTY LANE BARRY G, O'CONNELL Reply Tu MARK l), REFUNG WM, RU%ELL McELYEA POST OFFICE BOX 1288 CINDY E, YOUNKIN BOZEMAN, MONTANA 59771.1288 WILLIAM M, BROOKE TELEPHONE: (406) 58n511 ALLAN I I. BARIS FAX: (406) 587-9079 May 21, 1997 Robin Sullivan, Clerk City corrunission, City of Bozeman P.O. Box 640 Bozeman MT 59771.0640 RE: Bozeman Solvent Site/Nelson Trailer Court Our File No. 20028.013 Dear Robin: I am enclosing for the City's files the original "Settlement Agreement" between the City of Bozeman and the Esther Nelson Group. This firm has retained a duplicate copy of the Settlement Agreement. BGOC:mp Enclosure cc: Paul J. Luwe, Esq. 20028013.L35