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Home My WebLink About10- Northwestern Energy Settlement Agreement and Release from LiabilitySETTLEMENT AGREEMENT AND RELEASE FROM LIABILITY RELEASOR: City of Bozeman, Montana RELEASEES: North Western Corporation d/b/a North Western Energy and its affiliated companies, successors, assigns, agents, partners, officers, directors, employees, insurers and attorneys INCLUDING RELEASED Chartis (f/kJa AIG), Energy Insurance Mutual and ACE-Bermuda INSURERS: DESCRIPTION March 5, 2009 Explosion and Fire in 200 Block of East Main OF INCIDENT: Street, Bozeman., Montana SETTLEMENT AMOUNT: $163,624 This Settlement Agreement and Release from Liability ("Agreement") is made and entered into by and between North Western Corporation d/b/a North Western Energy (North Western) and the City of Bozeman, Montana ("City" or "Releasor") (together referred to as "Parties"). For good and valuable consideration mutually had and received, the sufficiency of which is hereby acknowledged, the Parties agree as follows: Settlement Payment to the City of Bozeman Within thirty (30) days after acceptance and execution of this Agreement by the City, NorthWestern or its insurers acting on its behalf shall pay the City the sum of One Hundred Sixty Three Thousand, Six IIundred Twenty Four and no/100ths Dollars ($163,624). 2. Release of NorthWestern Corporation d/b/a NorthWestern Energy and its Insurers In partial consideration of the payment referred to in Paragraph 1 hereof, the City agrees to settle with and fully and forever release and discharge NorthWestern Corporation d/b/a NorthWestern Energy, including its affiliated companies, successors, assigns, agents, partners, officers, directors, employees, attorneys, insurers and adjusters and their affiliated companies (including but not limited to Chartis insurance company [formerly known as AIG insurance company], Energy Insurance Mutual, ACE-Bermuda and GAB Robins NA Inc.) (hereinafter collectively referred to as the "Releasees") from every claim, demand, liability, action and cause of action whatsoever, of every kind and nature, whether arising out of contract, tort, statute, common law or otherwise, in law or in equity, including all claims for compensatory, special, liquidated and punitive damages, penalties, costs, expenses and attorneys' fees, and other types of loss or losses, DB04/8371,49,0002/2436544.3 CDO4 1 whether presently known or unknown, fixed or contingent, matured or unmatured, suspected or unsuspected, arising out of or related to the March 5, 2009 explosion and fire that occurred in the 200 block of East Main Street in Bozeman, Montana, including but not limited to all property damages, emergency response costs, personnel costs, equipment costs, and supply costs incurred by or on behalf of the City. As additional consideration for the payment of the aforementioned sum. Releasor further agrees to release and discharge the insurance carriers and adjusters for NorthWestern Corporation and their affiliated companies (including but not limited to Chartis insurance company (formerly known as AIG insurance company), Energy Insurance Mutual, and ACE-Bermuda) and GAB Robins NA Inc. from all obligations related to Releasor's claims under any of NorthWestern Corporation's insurance policies and to release and discharge all of the Releasees from any and all claims Releasor might have against any of them arising out of their investigation, handling, adjusting, defense or settlement of any claims by Releasor arising out of or related to the March 5, 2009 explosion and fire that occurred in the 200 block of East Main Street in Bozeman, Montana including, without limitation, any common law claims and any claims under the Montana Unfair Trade Practices Act, 33-18-242, MCA. Release of Future Damages Releasor acknowledges that its losses, damages and injuries resulting from the March 5, 2009 explosion and fire that occurred on Main Street in Bozeman, Montana may not currently be fully known and may be more extensive or more serious than it is now understood or expected and Releasor agrees, as a further consideration for the settlement paid hereunder, that this Release also applies to any and all future losses, damages and injuries resulting from the March 5, 2009 explosion and fire that occurred on Main Street in Bozeman, Montana, even if some of those losses, damages and injuries are now unanticipated, unexpected or unknown, as well as any and all other losses, damages and injuries that are currently known or anticipated. 4. No Admission of Releasor understands and acknowledges that the above-mentioned settlement sum is being paid as the sole consideration for a full satisfaction and accord to compromise a disputed claim, that the Releasees and their insurers deny that Releasees and/or their insurers are liable for any of the losses, damages or injuries arising from the March 5, 2009 explosion and fire on Main Street in Bozeman, Montana and that they have agreed to pay the consideration stated herein solely to avoid the costs and uncertainties of litigation. Neither payment of that sum by or on behalf of the Releasees nor the negotiations for settlement are an admission of liability by the Releasees or their insurers, which liability is expressly denied. DB04/837149MO2/2436544.3 CD04 2 5. No Additional Claims Releasor represents that Releasor does not contemplate pursuing any additional claims against any other party potentially liable for the losses, damages, and injuries for which this Release is given. 7. Binding Agreement This Settlement Agreement and Release shall be binding upon and inure to the benefit of the successors and assigns of the parties. 8. Entire Agreement This written Agreement contains the entire understanding between the Parties hereto in connection with the subject matter and it supersedes and replaces any and all prior negotiations, agreements and representations, whether oral or written. City acknowledges that neither the Releasees, nor any agent or attorney of any of the Releasees, has made any promises, representations or warranties whatsoever, express or implied, not contained herein, concerning the subject matter hereto, to induce City to execute this Agreement, and acknowledges that it has not executed this Agreement in reliance upon any promises, representations, or warranties not contained herein. City further acknowledges that it has had a full and complete opportunity to independently investigate all facts material hereto, and has done so. 9. Govern ing Law The interpretation and enforcement of this Agreement shall be governed by the laws of the State of Montana. 10. Interpretation and Construction. This Agreement has been jointly drafted and/or reviewed by the Parties hereto following negotiations between them. It shall be construed according to the fair intent of the language as a whole, and not for or against either of the Parties. DB04/837149.0002/2436544.3 CD04 3 11. Representations The City represents that it is duly organized and has all requisite power and authority to execute and deliver this Settlement Agreement and Release From Liability and to perform its obligations thereunder; has taken all necessary action to authorize the execution and delivery of this Agreement and the performance of the obligations thereunder; the Agreement has been duly executed and delivered by the City; neither the execution nor the delivery of the Agreement nor the consummation of any of obligations contemplated, nor compliance with the terms and provisions thereof, will contravene the ordinances, rules and, regulations of the City or the laws of the State of Montana; and all consents, authorizations and orders required to be obtained, and all notices and filings required to be made, with any court, government authority, regulatory body or third party for the execution, delivery and performance by the City of the Agreement and the consummation of the obligations thereby, have been duly obtained or made. WITNESS WHEREOF, the parties hereto have executed this Agreement as of the ldayof 2010. B orney for City of Bozeman Approved as to form and content DB04/837149.0002/2436544.3 C DO4 NORTHWESTERN CORPORATION d/b/a NORTHWESTERN ENERGY By: CITY OF BOZE AN MONTA By: Robert Rowe President and CEO Chris Kukulski City Manager 4