HomeMy WebLinkAbout12- MMIA GEM Settlement Agreement 12 20 2012 All signatures.pdfDEC -20 -2012 14:29 MMIA 4064497440 P.001
SETTLEMENT AND RELEASE AGREEMENT
Recitals
WHEREAS, the City of Bozeman, Montana ( "Bozeman "), was the Judgment
Debtor of that certain Judgment ( "the Delaney Judgment "), entered in Delaney &
Company, Plaintiff, vs. City of Bozeman, Defendant, Cause No. DV- 03 -354, Eighteenth
Judicial District Court, Gallatin County, Montana, on April 41 2008, and;
WHEREAS, a dispute existed between Bozeman, the Montana Municipal
Interlocal Authority (the MMIA'), and the Government Entities Mutual ( "GEM "), regarding
their relative responsibility for the payment of some or all of the Delaney Judgment under
their respective coverage documents, which dispute resulted in the "Agreement for
Temporary Payment of Judgment and Non - Waiver of Coverage Defenses," entered into
between Bozeman and the MMIA on or about March 11, 2010, which Agreement
provided for interim payment of the Delaney Judgment until, interalla, the MMIA and
Bozeman agreed in writing as to the amount of the Delaney Judgment to be reimbursed to
the MMIA, and;
WHEREAS, Bozeman, the MMIA, and GEM have now reached an agreement as
to the terms of reimbursement of the Delaney Judgment to the MMIA, and additionally
wish to memorialize their agreement as to settlement of all potential disputes which
currently exist between them, which settlement terms are also memorialized herein, and
which terms have been approved by the respective City Commission and Boards of
Directors for Bozeman and the MMIA, Bozeman, the MMIA, and GEM agree as follows:
This Agreement shall supersede the "Agreement for Temporary Payment of
Judgment and Non - Waiver of Coverage Defenses," entered into on or
about March 11, 2010;
2. Bozeman shall pay the MMIA, by way of reimbursement for the MMIA's
interim payment of the Delaney Judgment, the principal amount of
$2,000,000 in three equal installments. The first of these installments shall
be paid no later than January 15, 2013, in an amount of no less than
$666,666, plus interest accrued as described below. The second
installment payment shall be made no later than July 15, 2013, in an
amount no less than $666,666, plus interest accrued as noted below. The
third payment shall be made no later than July 15, 2014, and shall consist of
any remaining portion of the principal balance, plus any accrued interest.
Interest shall accrue on the balance, and shall be compounded monthly at
the rate of 1 % per annum, beginning on the date that this agreement is
executed by Bozeman. Bozeman may prepay the principal balance and
any interest accrued thereon at any time without penalty;
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3. Bozeman further agrees to reimburse the MMIA up to the amount of
$1,000,000 (hereinafter referred to as "Reimbursement Principal ") if
Bozeman sells the property previously known as the Mandeville Ranch
more particularly described on the attached Exhibit A (the "ProperV), which
is hereby incorporated, for a "profit," as defined herein. No interest shall
accrue on the Reimbursement Principal. "Profit" is defined as any amount
Bozeman receives over $3,000,057.00, plus the "Costs of Development,"
which are defined as:
Those costs and fees, whether incurred prior to or after execution of this
settlement agreement, related to: engineering, grading and site
preparation; utilities and their installation; roads, curbs, gutters, stop- nwater,
and sidewalks and pedestrian facilities adjacent to roadways; amenities
such as pedestrian and commuter trails, and any improvement required
pursuant to a regulatory approval.
4. If the Property is sold, in whole or in part, Bozeman will provide the MMIA
within sixty (60) days of the close of such sale an accounting of all Costs of
Development as defined herein which Bozeman believes should be
credited against Bozeman's potential Profit. Within thirty (30) days
thereafter, the MMIA shall review the accounting and, if necessary, meet
and confer with Bozeman to resolve any discrepancies or disagreements
with respect to such accounting. Any Profits due the MMIA shall be paid
within thirty (30) days after the parties have agreed on the accounting. For
each dollar of profit earned the City shall pay the MMIA 1/3 of said dollar
and may retain 2/3 until such time as the City has paid the MMIA the
Reimbursement Principal amount. Provided further that if the Property is
sold in parts, then Bozeman shall provide an accounting for such sale or
sales as provided herein, and shall maintain a running total of all income
received and Costs of Development related to such sale. In the event that
at the time less than all the Property is sold but the right of the MMIA to
receive proceeds from the sale pursuant to paragraph 3 above is triggered,
Bozeman shall pay such amount following the procedure stated in the
paragraph 4, with the balance of Profit from such future sales, if any, due
and payable at the time such remaining property is sold, utilizing the same
procedures as set forth in the paragraph 4;
5. The MMIA's right to receive "Profit" from the sale of the Property will end
after 20 years, following which, the MMIA will have no right, title, or interest
in any "Profit" earned by Bozeman on the sale of the Property;
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6. Bozeman shall not be prevented from selling or transferring ownership of
the Property to any entity, nor shall this Agreement preclude Bozeman from
selling or transferring ownership of the property to an economic
development authority or similar entity for less than the purchase price,
Further, the terms of this Agreement do not "run with the land," nor do they
constitute an encumbrance upon the title of the Property;
7. Bozeman, the MMIA, and GEM agree to execute stipulations for dismissal
with prejudice of the appeal entitled The City of Bozeman vs. Montana
Municipal Interlocal Authority and Government Entities Mutual, Inc., filed at
Supreme Court No. DA -12 -0311, in the Supreme Court of the State of
Montana;
8. The MMIA agrees to cooperate in providing truthful testimony and
discoverable information to Bozeman to the extent allowed by the Montana
Rules of Civil Procedure, the Montana Rules of Evidence, and other
applicable law in any further legal proceedings against any non - released
entity under this Agreement, including any claims Bozeman may pursue
against the firm of Moore, O'Connell & Refling, P.C.
RELEASE
Bozeman hereby releases the MMIA, GEM, and the lawfirm of Browning,
Kaleczyc, Berry & Hoven, P.C., and their or its heirs, personal representatives,
successors, assigns, agents, officers, employees and attorneys from any and all actions,
claims, causes of action, demands, or expenses, whether asserted or unasserted, known
or unknown, foreseen or unforeseen, arising out of the following, without limitation:
a) Any obligation arising from or related to the MMIA's Memorandum of
Liability Coverage issued to Bozeman regarding the claims set forth
in Delaney & Company, Inc. v. City of Bozeman and Clark Johnson,
Cause No. DV -03 -354, fled in the Eighteenth Judicial District Court,
Gallatin County, Montana, and in the City of Bozeman v. Montana
Municipal Interfocal Authority, Govemment Entities Mutual, Inc., filed
in the Supreme Court of the State of Montana as Case No,
DA -12 -0311 ("the Litigation ");
b) All obligations of good faith and fair dealing, "bad faith," malpractice,
or any other tort or contract claim arising from the defense, claims
adjustment pre - litigation, or litigation defense of Bozeman, the
Litigation, and any and all other claims which currently exist between
them.
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3. SETrLEMENT AND RELEASE AGREEMENT
Provided, however, that nothing in this Settlement Agreement and Release shall be
construed as a release of any obligations which may exist or may arise in the future under
the MMIA's Memoranda of Coverage for defense or indemnity of Bozeman for claims
unrelated to the Litigation or the defense of Bozeman in the Delaney v. Bozeman litigation
referenced herein.
Provided, further, that nothing in this Settlement Agreement and Release shall be
construed as a release by Bozeman of the firm of Moore, O'Connell & Refling, P.C., and it
is agreed that Bozeman expressly retains whatever claims or causes of action, either
asserted or capable of assertion, it believes it may have against Moore, O'Connell &
Refling, P.C., with respect to that firm's defense of Bozeman in the Delaney v. Bozeman
litigation referenced herein.
This Agreement may be executed and delivered by facsimile or e- mailed signature and in
three or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The document will be deemed
effective once all signatures are exchanged. Bozeman's counsel shall retain all original
signature pages.
DATED this 20 day of Aecenber , 201 .
CITY /O�F� BO�ZE�(MAN
Its:
Elizabeth O'Halloran,
Attorney for City of Bozeman
DATED this day of 20.
MONTANA MUNICIPAL
INTERLOCAL AUTHORITY
BY:
Its:
Curt Drake,
Attorney for Montana Municipal Interlocal Authority
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DEC -20 -2012 14 :29 MMIA 4064497440 P.004
Provided, however, that nothing in this Settlement Agreement and Release shall be
construed as a release of any obligations which may exist or may arise in the future under
the MMIA's Memoranda of Coverage for defense or indemnity of Bozeman for claims
unrelated to the Litigation or the defense of Bozeman in the Delaney v. Bozeman litigation
referenced herein.
Provided, further, that nothing in this Settlement Agreement and Release shall be
construed as a release by Bozeman of the firm of Moore, O'Connell & Refling, P.C., and it
is agreed that Bozeman expressly retains whatever claims or causes of action, either
asserted or capable of assertion, it believes it may have against Moore, O'Connell &
Refling, P,C., with respect to that firm's defense of Bozeman in the Delaney v. Bozeman
litigation referenced herein.
This Agreement may be executed and delivered by facsimile or e- mailed signature and in
three or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The document will be deemed
effective once all signatures are exchanged. BOZeman'S counsel shall retain all original
signature pages.
DATED this day of , 20�
CITY OF BOZEMAN
BY:
Its:
Elizabeth O'Halloran,
Attorney for City of Bozeman
DATED this a= day of �1^ 20 is
MONTANA MUNICIPAL
INTF,RLOCAL AUTHORITY
Its:
Curt Drake,
Attorney for Montana Municipal Interlocal Authority
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4, SMLEMrNT AND RELEASE AGREEMENT
Joe
DATED this _Zj� day of OE4,EM Yc9. 20 tz
GOVERNMENT ENTITIES MUTUAL, INC.
Its:
for Government Entities Mutual, Inc.
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5 SETTLEMENT AND RELEASE AGREEMENT
EXHIBIT A
"PROPERTY' COMPRISES THE FOLLOWING TRACTS:
TRACT 1 -A, TRACT 3 -A AND TRACT 4 -A OF CERTIFICATE OF SURVEY NO. 2153,
SITUATED IN THE NW1 /4 OF SECTION 36, TOWNSHIP 1 SHOUTH, RANGE 5 EAST,
P.M.M., GALLATIN COUNTY, MONTANA, ACCORDING TO THE OFFICIAL PLAT
THEREOF ON FILE AND OF RECORD IN THE OFFICE OF THE COUNTY CLERK
AND RECORDER OF GALLATIN COUNTY, MONTANA,
TRACT 2 -A OF CERTIFICATE OF SURVEY NO. 2153, SITUATED IN THE NW1 /4 OF
SECTION 36, TOWNSHIP 1 SHOUTH, RANGE 5 EAST, P.M.M., GALLATIN COUNTY,
MONTANA, ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE AND OF
RECORD IN THE OFFICE OF THE COUNTY CLERK AND RECORDER OF
GALLATIN COUNTY, MONTANA.
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6. SETTLEMENT AND RELEASE AGREEMENT