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COMMUNICATIONS AND POLICY RELEASE ... I J C I T Y 0 F Interdepartment C LEA R W ATE R Correspondence Sheet R~F.!CEIVED SEP 06 1996 FROM: Cynthia Goudeau, City Clerk fj5; Leo W. Schrader, Risk Manager Elizabeth Deptula, City Manag~r Margaret Simmons, Finance Director (by E-Mail) Pam Akin, City Attorney . C\TY CLERK DEPT. TO: COPIES: SUBJECT: Commutation and Policy Release - American Centennial Insurance Company DATE: September 5, 1996 Submitted herewith is a duplicate original (containing original signatures) of the Commutation and Policy Release executed by City officials and the duly authorized officer of American Centennial Insurance Company. Since your office is the official depository of original contracts, this document is being forwarded to your office for filing. t' .. I I COMMUTATION AND POLICY RELEASE i'fi This fOMMUTATION AND POLICY RELEASE ("RELEASE") is entered into this L day of ~1996, between AMERICAN CENTENNIAL INSURANCE COMPANY on behalf of it~elf and its affiliates, parents and subsidiaries, as specifically set forth in Exhibit "A," attached hereto and incorporated by reference ("INSURER"), and CITY OF CLEARWATER, FLORIDA, a municipal corporation, as the Named Insured in any and all of the policies of insurance issued by INSURER to the City of Clearwater ("INSURED"). RECITALS WHEREAS, INSURER entered into various agreements, certificates, contracts, endorsements and/or policies of insurance with INSURED, whereby INSURER, in consideration of payment of premium, was committed to insure certain risks of INSURED, specifically, that certain policy No. CC005846 (hereinafter collectively referred to as "the Policies"); and WHEREAS, INSURER and INSURED desire fully and finally to settle, release and commute all rights, obligations and liabilities, known and unknown, of INSURER and INSURED under the Policies and to fully and finally terminate their relationship as INSURED and INSURER; and WHEREAS, INSURER has offered to pay and INSURED has agreed to accept in full satisfaction of INSURER's present and future liability under the Policies the sum of FIFTY THOUSAND DOLLARS AND NO CENTS (US$50,OOO.OO) (the "Settlement Sum"). NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE INSURER AND INSURED THAT: 1. INSURER shall pay to INSURED the Settlement Sum within thirty business days of the execution of this RELEASE by both INSURER and INSURED. 2. INSURED shall accept the Settlement Sum in full and final settlement of any and all amounts due from INSURER to INSURED or anyone else under the Policies. 3. When the payment of the Settlement Sum has been fully made by the INSURER, INSURED, in consideration of the Settlement Sum, shall release and forever discharge INSURER from any and all present and future payment obligations, adjustments, executions, offsets, actions, causes of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, expenses (including but not limited to court costs and attorney's fees), judgments, July 23, 1996 10:23am GBd:Clearwater:Commutation and Policy Release \'> ~\ . I I claims, demands, liabilities and/or losses whatsoever, all whether known or unknown, claimed or suspected, fixed or contingent, which INSURED and their successors and assigns ever had, now have, or hereafter may have, whether grounded in law or in equity, in contract or in tort or otherwise and whether obtained by subrogation, assignment or otherwise, against the INSURER or any of them by reason of any matter whatsoever arising out of the Policies, it being the intention of the parties that this RELEASE operate as a full and final settlement of INSURER's past, alleged or actual, current and future liabilities to INSURED under the Policies to the fullest extent possible under the law. For purposes of Paragraphs 3 and 5 of this RELEASE only, the term INSURER shall include its predecessors in interest, attorneys, agents, officers, directors, shareholders or employees. 4. INSURER's payment of the Settlement Sum fully exhausts and constitutes full and final satisfaction of any and all of INSURER's per occurrence and aggregate indemnity limits and obligations under the Policies as of the date of the RELEASE, INSURER has no further obligations of any nature whatever in respect of the Policies. 5. The INSURED agrees with the INSURER that this agreement rescinds any obligation of the INSURER undertaken by the terms of said Policies. It is the expressed intent of the parties to this agreement that upon the parties entering into this agreement and upon payment by INSURER of the Settlement Sum provided for herein that the INSURED will then become self-insured for any and all claims that would have been covered by the Policies, but for this agreement as if these Policies had never existed. 6. INSURED, and each of them, do hereby withdraw ab initio all requests, demands, and tenders for defense, indemnity or other reimbursement heretofore submitted to INSURER, and do hereby covenant and agree to forever relinquish and abandon any and all rights, whether actual or alleged, known or unknown, accrued or unaccrued, under the Policies, including but not necessarily limited to the Policies. 7. Effective on the same date on which INSURED shall release INSURER as provided for in paragraph 3 herein, the INSURER agrees that is shall not seek reimbursement of the Settlement Sum or any part thereof from the INSURED or any other insurer of INSURED. However, nothing in this RELEASE shall affect any rights INSURER may have with respect to any of its reinsurers. 8. INSURER and INSURED, as between themselves, understand that they may have sustained damages that may not have manifested and that are presently unknown, but nevertheless such parties deliberately intend and do hereby release the other from all such possible future claims. Furthermore, if the facts with respect to this RELEASE is executed (other than those set forth in this RELEASE) are found hereafter to be other than or different from the facts now believed by them to be true, INSURER and INSURED expressly accept and assume the risk of such possible difference in facts and agree that this RELEASE shall be and remain effective notwithstanding such difference in facts. \~,'\ ' July 23, 1996 1O:23am GBd:Clearwater:Commutation and Policy Release 2 I I . 9. This RELEASE is a compromise of disputed claims for defense, indemnity, reimbursement, or other alleged right to recover under the Policies, and any payment by INSURER pursuant to this RELEASE is not to be construed as an admission for any purpose on the part of INSURER or an admission for any purpose on the part of INSURED, other than as necessary to enforce the terms of this RELEASE. 10. The rights, duties and obligations set forth herein shall inure to the benefit of and be binding upon any and all predecessors, parents, successors, affiliates, officers, directors, employees, subsidiaries, stockholders, liquidators, receivers and assigns of the parties hereto. 11. The parties hereto expressly warrant and represent that they are corporations or municipal corporations in good standing in their respective places of domicile; that the execution of this RELEASE is fully authorized by each of them; that the person or persons executing their RELEASE have the necessary and appropriate authority to do so; that there are no pending agreements, transactions, or negotiations to which any of them are a party that would render this RELEASE or any part thereof void, voidable, or unenforceable; that no authorization, consent or approval of any government entity is required to make this RELEASE valid and binding upon them; and that no claim or loss being paid or settled hereunder has been previously assigned, sold or transferred to any other person or entity. INSURER and INSURED represent and warrant to each other that they have conducted a diligent search of their respective companies' records and that the Policies which are the subject of this RELEASE constitute all of the various agreements, certificates, contracts, endorsements and/or policies of insurance issued by the INSURER to the INSURED. In recognition of this representation and in consideration of the Settlement Sum, the INSURED specifically waives the right to assert at any time in the future that, at the time it negotiated and executed this RELEASE, it was unaware of and is otherwise entitled to any benefit, defense, indemnification or insurance coverage under any agreement, certificate, contract, endorsement and/or policy of insurance with the INSURER, other than the policies specified herein. 12. INSURED and INSURER agree to execute promptly any and all voluntary dismissals, stipulations, supplemental agreements, releases, affidavits, waivers and other documents of any nature or kind which the other party may reasonably require in order to implement the provisions or objectives of this RELEASE. 13. This RELEASE may be executed in multiple counter-parts, each of which, when so executed and delivered shall be an original, but such counterparts shall together constitute one and the same instrument and agreement. 14. This RELEASE contains the entire agreement between the parties as respects its subject matter. All discussions and agreements previously entertained between the parties concerning the subject matter of this RELEASE are merged into this RELEASE. This '~~\\ July 23, 1996 10:23am GBd:Clearwater:Commutation and Policy Release 3 I I RELEASE may not be modified or amended, nor any of its provisions waived, except by an instrument in writing, signed by both parties hereunder. 15. INSURER and INSURED expressly agree that the terms and conditions of this RELEASE shall be confidential between the parties and shall not be disclosed by one party without the prior written consent of the other party except where required (1) by financial statements or reinsurers; (2) in an examination or audit of the parties' respective businesses; (3) to enforce the obligations under this RELEASE; (4) by order of a court, arbitration panel, insurance regulatory agency or governmental authority or (5) where required under applicable law. 16. INSURER and INSURED agree that they will not, except when required by legal process, commence, maintain, continue or voluntarily assist in any way in the prosecution by any other person or entity of any claim, lawsuit or other proceeding against the other, any related corporate entity, or any present or former employee relating to any matter covered by this RELEASE. 17. Each of the parties hereto declares that, except as set forth in writing in this RELEASE, the decision to execute this RELEASE is not predicated on or influenced by any declarations or representations of the other party, or any predecessors in interest, successors, assigns, officer, directors, employees or agents of same. The parties state that the contents of this RELEASE have been explained to them by their respective counsel, that this RELEASE constitutes the entire agreement intended by them; and that this RELEASE is entered into freely and voluntarily, upon the advise and with the approval of such counsel. 18. The drafting and negotiation of this RELEASE has been participated in by each of the parties and/or their counsel and for all purposes this RELEASE shall be deemed to have been crafted jointly by all parties. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK ~''\, July 23, 1996 10:23am GBd:Clearwater:Commutation and Policy Release 4 '- I I IN WITNESS WHEREOF, the parties hereto have executed this Commutation and Policy Release by their duly authorized representatives in duplicate as of the first date set forth below. AMERICAN CENTENNIAL INSURANCE COMPANY On behalf of itself and its affiliates, parents and subsidiaries BY: TITLE: DATE: ;?/J:-- I~ c..\vu , ~-\S-~6 BY: NAME: RITA GARVEY TITLE: Mayor Commissioner CITY OF CLEARWATER BY: ~~~ NAME: E ABE M. DEPTULA TITLE: City Manager Approved as to form and legal sufficiency Attest: BY:~~ NAME: 'PAUL RICHARD HULL TITLE: Assistant City Attorney BY: r \..\\ .=-~. 11170 ~n " NAM~A -!L GOtIDEAlL TITLE: City Clerk ... ',,F / DATE: ~i7 19y I July 23, 1996 1O:23am GBd:Clearwater:Commutation and Policy Release 5 "- I ~ EXHffiIT "A" American Centennial Insurance Company British International Insurance Co., Ltd. Consolidated General Insurance Company Limited Consolidated Insurance Company of Puerto Rico Consolidated Insurance Holdings Limited (Canada) Consolidated International Group, Inc. Consolidated International Reinsurance Company, B.V. Consolidated International Insurance Co., Ltd. First Delaware Financial Group, Inc. First Delaware Insurance Agency, Inc. First Delaware Insurance Group, Inc. National Credit Plan Corp. Peninsula Indemnity Company [The] Peninsula Insurance Company Richmond Properties, Inc. Richmond Realty Corporation Security Assurance Company Security Assurance Company of Puerto Rico Silverlake Development Corporation \'\ July 23, 19% 1O:23am GBd:Clearwater:Commutation and Policy Release 6