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Home My WebLink AboutGeneral Release for Settlement in the MMIA Suit, Bogert Pavilion Fire.pdf Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Greg Sullivan, City Attorney SUBJECT: Authorize City Attorney to Sign General Release for Settlement in the MMIA Suit to Recover Damages in Bogert Pavilion Fire (MMIA/City of Bozeman v. White et al., Cause No. DV-08-527C) MEETING DATE: February 16, 2010 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Attorney to Sign the General Release in the settlement of the Montana Municipal Interlocal Authority’s claim against the individuals responsible for the fire that destroyed the Bogert Pavilion in 2006. BACKGROUND: In 2006, a fire destroyed the Bogert Pavilion. The Montana Municipal Interlocal Authority covered the damage of the Pavilion with the City of Bozeman paying $492,702.22. The young men responsible for the damage were also ordered to pay restitution to the City in the amount of $2,435.00. The Bogert Pavilion was completely restored within a year of the fire. The MMIA sued the young men in district court to recover their payments to the City. The City was included as a plaintiff as a matter of law but generally did not participate in this recovery effort. The General Release attached as Attachment A will settle the MMIA’s recovery claim in the amount of $218,000. FISCAL EFFECTS: There are no fiscal effects associated with this settlement. The City’s total “out-of-pocket” for the fire amounts to $18,236.14 not including the City’s $5,000 deductible. ALTERNATIVES: As suggested by the City Commission. Attachments: General Release in the Settlement of MMIA/City of Bozeman v. White et al. Report compiled on: February 10, 2010 5 1 GENERAL RELEASE RELEASOR: CITY OF BOZEMAN, MONTANA MUNICIPAL INSURANCE AUTHORITY (“MMIA”) and GOVERNMENT ENTITIES MUTUAL, INC. (“GEM”) RELEASEES: BRIAN WHITE, SEAN WINTERS, LEE ROBINSON, and GEORGE “CHIP” GOODRICH DATE OF CASUALTY: JULY 2, 2006 DESCRIPTION OF CASUALTY: PROPERTY DAMAGE SUM OF SETTLEMENT: $218,000.00 CIVIL CAUSE: MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY, CAUSE NO. DV -08-527C, HONORABLE JOHN BROWN 1. Release The undersigned Releasors acknowledges receipt of the above sum of money and in consideration for payment of such sum, fully and forever releases and discharge Releasees, Releasees’ heirs, personal representatives, successors, assigns, agents, partners, employees, parents, and attorneys for any and all actions, claims, causes of action, demands, or expenses for damages or injuries, whether asserted or unasserted, known or unknown, foreseen or unforeseen, arising out of the described casualty. 2. Future Damages Inasmuch as the injuries, damages, and losses resulting from the events described herein may not be fully known and may be more numerous or more serious than it is now understood or expected, the Releasors agree, as a further consideration of this agreement, that this Release applies to any and all injuries, damages and losses resulting from the casualty described herein, even though now unanticipated, unexpected and unknown, as 6 2 well as any and all injuries, damages and losses which have already developed and which are now known or anticipated. 3. No Admission of Liability It is understood that the above-mentioned sum is accepted as the sole consideration for full satisfaction and accord to compromise a disputed claim, and that neither the payment of the sum by Releasees nor the negotiations for settlement shall be considered as an admission of liability. 4. Apportionment of Payment to Lienholders This payment shall be apportioned by Releasors and Releasors’ counsel among doctors, hospitals, all other health care providers and services and any other individuals, companies, agencies, workers’ compensation insurers or agencies, political subdivisions, or attorneys who may have valid liens or rights of subrogation or reimbursement, and Releasors and Releasors counsel agree to indemnify Releasees from and against all such claims by such parties, including payment of attorneys’ fees and costs. 5. No Additional Claims Releasors represent that no additional claims are contemplated against any other party potentially liable for the losses, damages and injuries for which this Release is given. In the event any additional claim is made which directly or indirectly results in additional liability exposure to Releasees for the losses, injuries and damages for which this Release is given, Releasors covenant and agrees to indemnify and save Releasees harmless from all such claims and demands, including reasonable attorneys’ fees and all other expenses necessarily incurred. 6. Taxability of Benefits Releasees make no warranty, representation, or promise, in any respect, with respect to the taxability of the sums which have been or will be received by Releasors. It is hereby expressly understood and agreed that Releasors is fully and exclusively responsible for complying with the tax laws of the United States or any state and that Releasors shall make no claim or demand in the future upon Releasees in any respect, including the issue of taxability of the benefits to be paid hereunder. 7. Stipulation for Dismissal With Prejudice Releasors stipulates and agrees that Releasors’ attorney of record shall dismiss, with prejudice, as fully settled upon the merits, the above-described civil action. Each party shall pay their respective costs and attorneys' fees. 7 3 8. Disclaimer Releasors have carefully read the foregoing, discussed its legal effect with Releasors’ attorney, understand the contents thereof, and sign the same of Releasors’ own free will and accord. This Release shall be binding upon Releasors’ heirs, successors, personal representatives, and assigns. DATED this ____ day of February, 2010. CAUTION: READ BEFORE SIGNING! _____________________________ ALAN HULSE - CEO, FOR RELEASOR MMIA STATE OF MONTANA ) ) ss County of LEWIS and CLARK ) On this ____ day of February, 2010, before me, a notary public of the State of Montana, personally appeared ALAN HULSE, known to me to be the person named in the foregoing Release, and acknowledged to me that he executed the same as his free act and deed, for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year in this certificate first above written. _________________________________ Notary Public for the State of Montana _________________________________ Printed/Typed Name of Notary Residing at _______________________ My commission expires _____________ 8 4 CAUTION: READ BEFORE SIGNING! __________________________________ GREG SULLIVAN, FOR RELEASOR CITY OF BOZEMAN STATE OF MONTANA ) ) ss County of Gallatin ) On this ____ day of February, 2010, before me, a notary public of the State of Montana, personally appeared GREG SULLIVAN, known to me to be the person named in the foregoing Release, and acknowledged to me that she executed the same as her free act and deed, for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year in this certificate first above written. ________________________________ Notary Public for the State of Montana _________________________________ Printed/Typed Name of Notary Residing at _______________________ My commission expires _____________ 9 5 CAUTION: READ BEFORE SIGNING! __________________________________ __________________________________ FOR RELEASOR GEM STATE OF _________________ ) ) ss County of __________________ ) On this ____ day of February, 2010, before me, a notary public of the State of ________________, personally appeared __________________________, known to me to be the person named in the foregoing Release, and acknowledged to me that he/she executed the same as his/her free act and deed, for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year in this certificate first above written. ________________________________ Notary Public for the State of ________ _________________________________ Printed/Typed Name of Notary Residing at _______________________ My commission expires _____________ APPROVED BY: __________________________________ Attorney for Releasors, TROY BENTSON 10