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HomeMy WebLinkAbout12-17-07_Authorize City Manager to Execute Appropriate65432_12 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Paul Luwe, City Attorney Chris Kukulski, City Manager SUBJECT: Approval of settlement of Harbour v. City MEETING DATE: December 17, 2007 BACKGROUND: Devin Harbour’s employment with the City was terminated prior to the expiration of Devin Harbour’s initial employment period. He filed an action in District Court alleging breach of employment contract, breach of implied covenant of good faith and fail dealing, and wrongful discharge. The parties have reached a settlement of this case with the payment of $2,000 with no admittance of liability. Continued litigation would significantly cost the City more in time and resources then the $2,000 settlement amount. RECOMMENDATION: Authorized City Manager to execute appropriate settlement documents. FISCAL EFFECTS: $2,000 ALTERNATIVES: As suggested by the City Commission. Respectfully submitted, _________________________________ ____________________________ Paul J. Luwe, City Attorney Chris A. Kukulski, City Manager Attachments: AS Report compiled on : 12/12/07 123 1 GENERAL RELEASE RELEASOR: Devin M. Harbour RELEASEE: The City of Bozeman DATE OF CASUALTY: Various from December, 2005 through June 28, 2006. DESCRIPTION OF CASUALTY: Employment and subsequent termination of Releasor by Releasee all as specifically described in the Complaint for Damages dated September 19, 2006 in the civil cause described below. SUM OF SETTLEMENT: Two Thousand Dollars ($2,000.00) CIVIL CAUSE: Montana Eighteenth Judicial District Court Gallatin County, Cause No. DV-06-544B 1. Release. The undersigned Releasor acknowledges receipt of the above sum of money and in consideration for payment of such sum, fully and forever releases and discharges Releasee, Releasee’s heirs, personal representatives, successors, assigns, agents, officers, directors, partners, employees and attorneys from 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 Releasor agrees, 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 125 2 unanticipated, unexpected and unknown, as well as any and all injuries, damages and losses which have already developed and which are now known or anticipated. 3. Release of Insurer. Releasor further releases Montana Municipal Insurance Authority from all obligations under any part of the company's insurance policies applicable to Releasor's claims and from any and all claims arising out of the investigation, handling, adjusting, defense or settlement of the claim including, without limitation, any claims under Section 33-18-242, MCA, and Section 33-18-201, MCA. 4. 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 Releasee nor the negotiations for settlement shall be considered as an admission of liability. 5. Apportionment of Payment to Lienholders. This payment shall be apportioned by Releasor 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 Releasor agrees to indemnify and hold Releasee and its insurer harmless from and against all such claims by such parties, including payment of attorney's fees and costs. 6. No Additional Claims. Releasor represents that no additional claims are contemplated against Releasee or 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 Releasee for the losses, injuries, and damages for which this Release is given, Releasor covenants and agrees to indemnify and save Releasee harmless from all such claims and demands, including reasonable attorneys' fees and all other expenses necessarily incurred. 7. Stipulation for Dismissal With Prejudice. Releasor stipulates and agrees that Releasor's 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. 126 3 8. Taxability of Benefits. Releasee makes no warranty, representation or promise, in any respect, with respect to the taxability of the sums which have been or will be received by Releasor. It is hereby expressly understood and agreed that Releasor is fully and exclusively responsible for complying with the tax laws of the United States or any state and that Releasor shall make no claim or demand in the future upon Releasee in any respect, including the issue of taxability of the benefits to be paid hereunder. Subject to the above, it is understood that the amounts paid pursuant to this settlement represent compensation for personal injuries as contemplated by IRS Code Section 104(a)(2). 9. Release of Payment: Indemnification This is a General Release of all claims arising from or in any way connected with the occurrence described above. Releasee does not represent that they have any special expertise in determining the proper tax treatment of this settlement payment, and Releasee is in no way assuming any tax or social security (FICA) liability associated with this settlement. The Releasor agrees they will defend, indemnify and hold Releasee harmless from any and all liability Releasee may suffer as a result of any claims or demands made by any taxing authority arising out of or in any way resulting from the payment of the above-described settlement sum. 10. Disclaimer. Releasor has carefully read the foregoing, discussed its legal effect with Releasor's attorney, understands the contents thereof, and signs the same of Releasor's own free will and accord. This Release shall be binding upon Releasor's heirs, successors, personal representatives and assigns. DATED this ____ day of December, 2007. CAUTION: READ BEFORE SIGNING! ____________________________________ Devin M. Harbour, Releasor APPROVED BY: 127 4 ___________________________ Attorney for Releasor 128 5 STATE OF MONTANA ) : ss. County of Gallatin ) On this ____ day of December, 2007, before me, a Notary Public of the State of Montana, personally appeared Devin M. Harbour, 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 Name: Residing at (SEAL) My commission expires: , 20 129 130 131