SETTLEMENT AGREEMENT AND RELEASE

Transcription

1 SETTLEMENT AGREEMENT AND RELEASE This settlement agreement ( Settlement Agreement ) is made this day of, 2016 by and between the City of Devils Lake, N.D., a municipal corporation and BNSF Railway Company, a Delaware corporation. DEFINITIONS 1. Agreement means this Settlement Agreement And Release and all Exhibits referenced herein. 2. BNSF means BNSF Railway Company, a Delaware corporation (formerly known as Burlington Northern Santa Fe Railway Company, a/k/a BNSF Railway Company, a foreign corporation ), as successor to Great Northern Railway Company, and all of its present and former shareholders, directors, officers, partners, members, employees, brokers, agents, auditors, accountants, investors, attorneys, administrators, principals, predecessors, successors, parent corporations, subsidiary corporations, partnerships, affiliates, assignors, assignees, related entities and insurers. 3. City means the City of Devils Lake, North Dakota, a municipal corporation, and all of its present and former commission members, employees, agents, attorneys, administrators, principals, predecessors, successors, affiliates, assignors, assignees, and related entities and insurers Deed means the deed attached as Exhibit 1 conveying the Property described below, which deed was recorded with the register of deeds, now known as the county recorder on, August 26, 1921 in Book 35 of Deeds, Page 221, as Document No Deed means the quitclaim deed from BNSF to City attached as Exhibit 3 6. Litigation means the action entitled City of Devils Lake, North Dakota, a Municipal Corporation v. BNSF Railway Company, et. al., venued in District Court, County of Ramsey, State of North Dakota. 7. Parties means collectively the City and BNSF. 8. Party means either the City or BNSF. 9. Property means the following described parcel of real property located in Ramsey County, North Dakota: The easterly Sixty-Six (66) feet of the right of way of the railway of said Railway Company in the Northwest Quarter of the Southwest Quarter (NW1/4 S W1/4) and the West Half of the Northwest Quarter (W1/2NW1/4) of Section Two (2), Township One Hundred Fifty Three (153) North, Range Sixty-Four (64) West, Fifth Principal Meridian, being a strip of land Sixty-Six (66) feet wide extending Page 1 of 8

2 from the west line of said Northwest Quarter of the Southwest Quarter (NW1/4 S W1/4) of Section Two (2) in an easterly and northerly direction to the southerly boundary of the station grounds of the Railway of said Railway Company in the Northwest Quarter of the Northwest Quarter (NW1/4NW1/4) of said Section Two (2) containing three and seventy-nine hundredths (3.79) acres, more or less. 10. Real Estate Donation Agreement means the BNSF Railway Company Real Estate Donation Agreement attached hereto as Exhibit 2. RECITALS 1. On or about July 26, 1921 Great Northern Railway Company executed and delivered to Ramsey County, North Dakota the Deed attached as Exhibit 1, ( 1921 Deed ) which Deed did convey to Ramsey County the Property. Said Deed was recorded with the register of deeds, now known as the county recorder on August 26, 1921 in Book 35 of Deeds, Page 221, as Document No The 1921 Deed, Exhibit 1, contains the following restriction: TO HAVE AND TO HOLD the same, together with all the appurtenances thereunto belonging, to the said County, for such time and so long as the same shall be used by said County, or its assigns as a public highway and no longer; it being expressly provided that if the said described premises or any part thereof, shall, at any time cease to be used by the public as a thourough [sic.] fare, street, or highway as aforesaid, or shall be converted to any other use whatsoever, then and in that event all the right, title, interest, benefit and enjoyment of the public in and to said premised, for any purpose whatsoever, shall immediately cease and determine, and said Great Northern Railway Company, its grantees, successors or assigns, may at its or their option reenter, re-take and hold said described premises as of the present estate of said Railway Company, without compensation to the county, the public or any person whosoever, for improvement or property removed, taken or destroyed, or liability for loss or damage to any premises or the improvements thereon, abutting on said street or highway or any part thereof. 3. An issue has arisen between the City and BNSF with regard to BNSF s interest in the Property, including whether under the above restriction in the Deed BNSF has any ownership interest in the Property. 4. The City commenced the Lawsuit seeking, among other things, to quiet the City s title in the Property and requesting a Court order that BNSF s interest in the Property is null and void and that BNSF has no estate or interest in, or lien or encumbrance upon, the Property. 5. BNSF answered the complaint and served a counterclaim and crossclaim in the Lawsuit. BNSF s answer, counterclaim and cross-claim, among other things, requests the Court enter judgment declaring that BNSF has the ownership interest Page 2 of 8

3 in the Property as set forth in the restriction language of the Deed and that any interests of the parties contrary to the interest of BNSF be adjudged null and void and that it be decreed that no party has an interest in, or lien or encumbrance upon, the property contrary to the interests of BNSF. BNSF s answer, counterclaim and cross-claim also sought damages against the City under inverse condemnation along with BNSF s litigation costs, expenses and attorney s fees. 6. BNSF and the City desire to resolve the claims set out in the Lawsuit and have reached a settlement agreement with respect to the Litigation, and the claims, causes of action and allegations each has asserted, and the parties desire to memorialize their agreement. NOW, THEREFORE FOR A VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, the parties hereto agree as follows: SETTLEMENT TERMS 1. Incorporation of Definitions and Recitals. The above Definitions and Recitals are hereby restated and incorporated into and made part of these Settlement Terms. 2. Charitable Donation By BNSF. BNSF agrees to donate the Property to the City of Devils Lake pursuant to the terms and conditions of the Real Estate Donation Agreement attached as Exhibit 2. The City agrees to accept the donation of the Property. The Parties agree to sign and approve the Real Estate Donation Agreement and necessary documents referenced therein, including the IRS Form 8283, Exhibit B to the Real Estate Donation Agreement. 3. No Warranty of Title. BNSF shall provide a quitclaim deed ( Deed ) to the Property in the form attached as Exhibit 3 hereto. In providing such quitclaim deed, BNSF makes no representations as to its ownership of the Property, its right to convey the Property, or the quality of title to the Property, including, but not limited to, the existence or non-existence of liens, mortgages, easements, or any other encumbrances whether such be of record or not. In accepting this Agreement, City agrees to release and hold BNSF harmless for any and all claims regarding the Property and the ownership and title to such Property and acknowledges that City is accepting the Property in its present state and condition without reliance upon any representations of BNSF. Specifically, City acknowledges that City has been allowed to make an inspection of the Property. CITY IS ACCEPTING OWNERSHIP OF THE PROPERTY ON AN AS-IS WITH ALL FAULTS BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM BNSF AS TO ANY MATTERS CONCERNING THE PROPERTY, including, but not limited to the physical condition of the Property; zoning status; tax consequences of this transaction; utilities; operating history or projections or valuation; compliance by the Property with Environmental Laws (defined below) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (defined Page 3 of 8

4 below), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in, on or under the Property; the condition of title to the Property, and any leases, easements, permits, orders, licenses, or other agreements, affecting the Property (collectively, the Condition of the Property ). City represents and warrants to BNSF that City has not relied and will not rely on, and BNSF is not liable for or bound by, any warranties, guaranties, statements, representations or information pertaining to the Property or relating thereto (including specifically, without limitation, any Property information packages distributed with respect to the Property) made or furnished by BNSF, any manager of the Property, or any real estate broker or agent representing or purporting to represent BNSF, to whomever made or given, directly or indirectly, orally or in writing. City assumes the risk that Hazardous Substances or other adverse matters may affect the Property that were not revealed by City s inspection and indemnifies, holds harmless and hereby waives, releases and discharges forever BNSF and BNSF s officers, directors, shareholders, employees and agents (collectively, Indemnitees ) from any and all present or future claims or demands, and any and all damages, Losses, injuries, liabilities, causes of actions (including, without limitation, causes of action in tort or asserting a constitutional claim) costs and expenses (including, without limitation fines, penalties and judgments, and attorneys fees) of any and every kind or character, known or unknown, arising from or in any way related to the Condition of the Property or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, on or under the Property. Losses shall include without limitation (a) the cost of any investigation, removal, remedial, restoration or other response action that is required by any Environmental Law, that is required by judicial order or by order of or agreement with any governmental authority, or that is necessary or otherwise is reasonable under the circumstances, (b) capital expenditures necessary to cause the BNSF remaining property or the operations or business of the BNSF on its remaining property to be in compliance with the requirements of any Environmental Law, (c) Losses for or related to injury or death of any person, (d) Losses for or related to injury or damage to animal or plant life, natural resources or the environment, and (e) Losses arising under any Environmental Law enacted after transfer. The rights of BNSF under this section shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this document or otherwise. This indemnity specifically includes the obligation of City to remove, close, remediate, reimburse or take other actions requested or required by any governmental agency concerning any Hazardous Substances on the Property. The term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law relating in any way to human health, occupational safety, natural resources, plant or animal life or the environment, including without limitation, principles of common law and equity, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. The term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions. Page 4 of 8

5 3. Release. The Parties hereto release and forever discharge each other of and from any and all manner and types of claims, demands, actions, causes of action, liabilities, suits, debts, sums of money, accounts, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, and judgments whatsoever, in law or equity, and whether the claims or damages are developed or undeveloped, known or unknown, foreseen or unforeseen, asserted or unasserted, suspected or unsuspected, anticipated or unanticipated, permanent or progressive, or from which recovery is uncertain and indefinite, and any and all consequences of any and all such claims, demands, actions, and causes of action, economic damages, non-economic damages, payments and/or distributions under any state or federal statute, special damages, compensatory damages, punitive damages, costs, disbursements, expert witness fees, and attorneys fees arising from or in any manner related to the Litigation and the Deed, including any claim any Party may now have or claim to have against any other Party, or by reason of any matter, event, cause or thing whatsoever, arising out of, based in whole or in part upon, relating to, or existing by reason of the facts, circumstances, transactions, events, occurrences, acts, omissions or failures to act, of whatever kind or character whatsoever, with respect to any and all matters relating to the Litigation or the Deed. Notwithstanding anything to the contrary, the release described in this paragraph does not extend to any of the Parties obligations under this Agreement. 4. Unknown Facts. The Parties expressly acknowledge that they are aware that they and/or their attorneys may hereafter discover claims or facts in addition to or different from those that they now know or believe to exist with respect to the subject matter of this Agreement, the Litigation and the Deed, but that it is their intention to release all claims as set forth herein regardless of the discovery or existence of different or additional facts. The Parties agree, as a further consideration for the promises herein, that upon execution of this Agreement they have waived the provision of N.D.C.C , which provides that a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known, must have materially affected his or her settlement with the debtor. The Parties agree and understand that upon execution of this Agreement no mistake, whether it be a mistake of fact or law, shall void, impair or otherwise affect the terms and finality of this agreement and the full discharge of each other from any further liability. 5. Reasonable Access. The Parties will provide each other reasonable access to the Property as necessary to complete the terms and conditions of this Agreement, including access for purposes of any inspection, review or appraisal that may be needed for BNSF to obtain any desired tax benefits from the donation identified above. It is specifically agreed that there is not time limitation as to when BNSF s right to reasonable access will expire. 6. Dismissal of Litigation. The Parties shall cause the claims between the Parties in the Litigation to be dismissed, with prejudice and in total, and the Parties shall work in good faith to achieve that dismissal while preserving the terms and conditions of this Agreement, including the benefits to the City and BNSF of the donation described above. The parties agree that they shall each bear their own respective costs, expenses and attorneys fees associated with the Litigation. Page 5 of 8

6 7. Performance of Additional Acts. The Parties agree to perform such acts and to prepare, execute, file or record any documents, instruments, security interests, or stipulations reasonably required to perform the covenants, to satisfy the conditions herein contained, or to give full force and effect to this Agreement, including any documents that may be required for BNSF to obtain any desired tax benefit from this Agreement. 8. Non-Admission of Liability. The Parties agree this Agreement shall be a full, final and complete compromise of the Litigation, and it is not nor is any payment hereunder to be construed as an admission of liability or waiver of any defenses by any Party. Each of the Parties have expressly denied any and all liability and expressly reserve any and all rights to any and all available defenses of any nature whatsoever. It is expressly understood and agreed by the Parties that this Agreement shall be a compromise settlement of all of the aforesaid claims, demands and causes of action which have been, could have been or were required to be made and that the consideration and promises made for this release are substantially less than the total value or amount of damages claimed by the respective parties. 9. Entire Agreement. This Agreement and the Real Estate Donation Agreement contain the entire agreement between the parties. No statements, promises or inducements made by any Party or any agent of any Party that are not contained in this Agreement shall be valid or binding. This Agreement may not be enlarged, modified or altered, except in writing signed by all parties hereto expressly referencing it. 10. Non-Waiver. No delay or failure by any party to exercise any right under this Agreement and no partial single exercise of any right shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 11. Representation by Counsel/Voluntary Nature of Agreement. The Parties acknowledge and represent that they have been represented by legal counsel in connection with the consideration and execution of this Agreement. The Parties represent and declare that in executing this Agreement they relied solely upon their own judgment, belief and knowledge, and the advice and recommendation of their own independently selected legal counsel concerning the nature, extent and duration of their rights and claims, and that they have not been influenced to any extent whatsoever in executing this Agreement by any representations or statements not expressly contained or referred to herein. In entering into this Agreement the Parties acknowledge and expressly warrant and represent to each other, as part of the consideration for the promises contained herein, that before executing this Agreement they have fully and completely read all of the terms thereof, that no promise, inducement, or agreement expressed therein has been made to them, and the terms of this Agreement are fully understood and voluntarily accepted by them, without duress or coercion of any kind or type. 12. Contractual Nature of Agreement. The terms and conditions of this Agreement are contractual in nature, and not a mere recital. This Agreement, when fully executed, shall constitute a legal, valid and binding obligation of the parties, enforceable in accordance with its terms and shall inure to the benefit of the Parties. The Parties represent and warrant to each other that they have each respectfully taken the necessary actions to approve this Agreement and have Page 6 of 8

7 provided the undersigned with the authority to execute and deliver this Agreement and the other instruments, documents, or agreements referenced herein. 13. Drafting. This Agreement will be deemed jointly drafted for purposes of construing the provisions and none of the Parties, or their legal counsel, shall be deemed the drafter hereof. The language in all parts of this Agreement shall be interpreted according to its fair meaning, and shall not be interpreted for or against any of the parties as the drafter thereof. 14. Execution in Counterparts. This Agreement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument. 15. Choice of Law. This Agreement shall be construed and enforced in accordance with, and governed by, the substantive laws of the State of North Dakota, without giving effect to the State s choice of law or conflicts of laws principles. 16. Severability. If any part of this Agreement is determined by any court or tribunal of competent jurisdiction to be wholly or partially unenforceable for any reason, such unenforceability shall not affect the balance of this Agreement. IN WITNESS WHEREOF, the parties have executed this Settlement Agreement as of the date first set forth above. Dated this day of, CITY OF DEVILS LAKE By: Its: Dated: BNSF Railway Company By: Its: Dated: [balance of this page intentionally left blank] Page 7 of 8

8 Approved as to form and substance this day of, J. Thomas Traynor (ND ID #03694) TRAYNOR LAW FIRM, PC th St. N.E., Suite 1 P.O. Box 838 Devils Lake, N.D Telephone: ( tomtraynor@traynorlaw.com Attorney for the City Approved as to form and substance this day of, Mark R. Hanson Nilles Law Firm P.O. Box 2626 Fargo, ND (701) mhanson@nilleslaw.com Attorney for BNSF Page 8 of 8

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