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HomeMy Public PortalAboutSettlement AgreementSETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made as of April 21, 2011 ("Effective Date") by the following parties: (i) the City of McCall ("City"), an Idaho municipal corporation; (ii) Susan E. Buxton, an individual licensed to practice law in the State of Idaho, and Moore Smith Buxton & Turcke, Chartered, an Idaho professional corporation (collectively, "Moore Firm"); and (iii) William A. McCurdy, an individual licensed to practice law in the State of Idaho, and Brassey Wetherell & Crawford, LLP f/k/a Brassey, Wetherell, Crawford & Garrett, LLP, an Idaho limited liability partnership (collectively, "Brassey Firm"). RECITALS A. On May 3, 2006, the City filed an action against the Moore Firm and the Brassey Firm in the Fourth Judicial District of the State of Idaho, in and for the County of Ada, Case No. CV OC 0608079 ("Action"). B. The parties have reached a full and final settlement of all claims (i) that were made, or could have been made, in the Action, and (ii) that arise from the attorney -client relationship that existed before the Effective Date between the City, on one hand, and the Moore Firm or the Brassey Firm, on the other hand. Now, therefore, for good and valuable consideration, including the covenants and conditions set forth in this Agreement, the parties agree as follows: AGREEMENT 1. The Recitals set forth above are incorporated into and made a valid and binding part of this Agreement. 2. On or before June 20, 2011, the Moore Firm and the Brassey Firm together shall pay the City the total amount of $500,000.00. Payment shall be made by check(s) payable to the City of McCall. 3. Once the payment required in paragraph 2 of this Agreement has been made, the parties shall cause their respective counsel to take the following actions: (i) file a stipulation to dismiss the Action with prejudice, with each party to bear its own costs and attorney fees; and (ii) seek a court order dismissing the Action in accordance with that stipulation. 4. The City (for itself and its elected or appointed officials, employees, agents, representatives, successors, assigns, attorneys, and insurers) releases and forever discharges the Moore Firm and the Brassey Firm and their respective current and former officers, directors, partners, associates, employees, agents, representatives, successors, assigns, attorneys, and insurers, and any person or entity acting for, by, or through any of them (collectively, "Released Parties") from any and all past, present or future claims (including claims for costs and attorney fees), actions, causes of action, demands, rights, damages, costs, losses, expenses, penalties, liabilities, judgments, liens, indebtedness and compensation whatsoever, whether in law or in equity, known or unknown, foreseen or unforeseen, or suspected or unsuspected, that the City SETTLEMENT AGREEMENT - 1 04188.0056.2345102.6 ever had, may now have, or hereafter may have, against the Released Parties that were made, or could have been made, in the Action, or that arise from the attorney -client relationship that existed before the Effective Date between the City, on one hand, any of the Released Parties, on the other hand. 5. The City acknowledges and agrees that this Agreement is a general release. The City expressly waives and assumes the risk of any and all claims for damages which exist as of the Effective Date, but of which the City does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect the City's decision to enter into this Agreement. The City further agrees that it has accepted payment of the settlement amount as a complete compromise of all matters involving disputed issues of law and fact. The City assumes the risk that the facts or law may be other than what the City believes. 6. No party admits liability or fault with respect to the claims asserted in the Action. 7. Upon the suggestion of the Released Parties, the parties agree that, to the extent permitted by law, the parties shall maintain the confidentiality of this Agreement, subject to the terms and conditions of this paragraph: a. Upon the execution of this Agreement, the City shall issue the following statement to The Star News: All parties to the lawsuit brought by the City of McCall against its prior attorneys are pleased to announce that the lawsuit has been resolved on terms satisfactory to all concerned. No party has admitted liability, fault, malpractice, or wrongdoing. All parties wish to put the lawsuit behind them and, to that end, have agreed that no further comment concerning the settlement or the lawsuit shall be made by any party to any person or entity. b. Should any party to this Agreement be contacted regarding this Agreement or the settlement of the Action, except by means of a request for public records, that party shall provide no response aside from directing the inquiry to its designated representative, who shall repeat the public statement set forth in subparagraph (a) or confirm that the substance of that statement is the only information that can be provided in response to the inquiry. The designated representatives of the parties are: (i) the City Attorney for the City; (ii) Paul A. Turcke for the Moore Firm; (iii) John Howell for Brassey Wetherell & Crawford, LLP; and (iv) William A. McCurdy on his own behalf. c. In the event of a request for public records that encompasses this Agreement, the City shall inform the requesting party within the statutory period of three working days that it will require ten working days to determine whether this Agreement may be disclosed. Further, the City SETTLEMENT AGREEMENT - 2 04188.0056.2345102.6 shall, also within three working days of the request, tender the request to the Released Parties. The Released Parties shall then have five working days within which to inform the City whether they (1) consent to the disclosure of this Agreement or (2) do not so consent and wish the City to assert whatever protection is afforded by this confidentiality clause and applicable law. If a Released Party fails to communicate a response to the City within the time allowed by this subparagraph, then that Released Party is deemed to have consented to the disclosure of this Agreement. If all the Released Parties fail to communicate a response to the City within the time allowed by this subparagraph, then the City shall be entitled to respond to the request in accordance with the advice of the City Attorney. If the City Attorney's advice is to disclose this Agreement, the City may do so without breaching this Agreement. If one or more of the Released Parties' response to the City is not to consent to the disclosure of this Agreement, that response shall be controlling on the City, which shall decline to disclose this Agreement in response to the request for public records. In the event that a lawsuit is filed against the City by the requesting party to compel disclosure of this Agreement, the City shall tender, within one week of service of process, all documents served upon it to those Released Parties who informed the City that they did not consent to the disclosure of this Agreement pursuant to the request for public records. The Released Parties who informed the City that they did not consent to the disclosure of this Agreement to whom the papers are tendered shall retain and pay counsel to defend the City in that lawsuit, at the trial and any appellate levels, and shall indemnify the City against any damages, penalties, costs and attorney fees that may be awarded against it in that lawsuit. In the event that the Released Parties to whom the papers are tendered fail to retain counsel or to make an appearance in the lawsuit, they shall be deemed to have waived their objections to disclosure of this Agreement, and the City shall have no responsibility to defend the lawsuit at its own expense. Despite their failure to retain counsel or to make an appearance, the Released Parties who informed the City that they did not consent to the disclosure of this Agreement pursuant to the request for public records shall remain liable for any and all sums awarded against the City in the lawsuit that are covered by the indemnity clause set forth in this paragraph. Whether the lawsuit is contested or goes by default, all parties shall abide by the final order entered in that proceeding, subject to the right of appeal. d. All tenders and responses described in subparagraph (c) above shall be to and from the parties' designated representatives and shall be by facsimile or email transmission or by hand delivery. e. Notwithstanding the foregoing, this Agreement may be disclosed as follows: (i) by any party to its attorneys, accountants, and auditors; (ii) by any party to those persons whose knowledge of this Agreement is necessary to secure the execution or implementation of this Agreement; SETTLEMENT AGREEMENT - 3 04188.0056.2345102.6 (iii) by any party to any person entitled, as a matter of law, to know of its terms and whose entitlement is not by virtue of a request for public records like that contemplated in subparagraph (c); (iv) by any party pursuant to a court order, or as necessary to enforce the terms of this Agreement, or as may otherwise be required by law; (v) by the Moore Firm or the Brassey Firm to the Idaho Judicial Council, Idaho State Bar counsel, and current or prospective legal -malpractice insurers; and (vi) by the Moore Firm or the Brassey Firm in connection with employment applications or requests for proposal from prospective clients. 8. The parties agree to refrain from making any disparaging comments (written, oral, or otherwise) about each other. 9. Both the City and the person who signs this Agreement on its behalf represent and warrant to the Moore Firm and the Brassey Firm that the city council of the City has voted, in a public meeting conducted in compliance with Idaho's "open meetings" laws, to approve this Agreement and that person's execution of this Agreement on the City's behalf. 10. In negotiating and executing this Agreement, the parties have been represented by counsel of their choice, and no party has relied on any promise or representation of any other party beyond those expressly set forth in this Agreement. 11. This Agreement contains the parties' entire agreement. It may not be altered, amended, or modified, except in a writing executed by the parties. 12. The terms of this Agreement have been negotiated by all parties, and any statute or rule of construction which provides that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. 13. This Agreement shall be governed by the laws of the State of Idaho, without reference to conflict -of -laws principles. 14. If any party pursues legal action to enforce this Agreement, the prevailing party in that legal action shall recover its reasonable court costs, attorney fees, and related expenses. 15. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A party may transmit its signature to the other parties by facsimile or e-mail. 16. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors, officers, elected and appointed officials, predecessors, assigns, directors, agents, employees, insurers, and transferees. SETTLEMENT AGREEMENT - 4 04188.0056.2345102.6 IN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. CITY OF McCALL Donald C. Bailey Its Mayor Approved as to form by its attorneys: Allen B. Ellis Ellis, Brown & Sheils, Chartered Jeffrey A. Strother Strother Law Office SETTLEMENT AGREEMENT - 5 04188.0056.2345102.6 MOORE SMITH BUXTON & TURCKE, CHARTERED By Susan E. Buxton, President Susan E. Buxton, individually Approved as to form by their attorneys: Craig L. Meadows Hawley Troxell Ennis & Hawley LLP BRASSEY, WETHERELL & CRAWFORD, LLP By Its William A. McCurdy, individually Approved as to form by their attorneys: James D. LaRue Elam & Burke, P.A. SETTLEMENT AGREEMENT - 6 04188.00 56.234 5102.6