Free Motion for Clarification - District Court of Federal Claims - federal

Case 1:02-cv-01795-JFM

Document 160

Filed 02/14/2007

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) THE SWEETWATER, A WILDERNESS ) LODGE LLC, ) ) Plaintiff, ) ) No. 02-1795C v. ) (Senior Judge Merow) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________) PLAINTIFF'S MOTION FOR A CLARIFICATION OF THE COURT'S JUDGMENT AND REQUEST FOR EXPEDITED BRIEFING The Sweetwater, A Wilderness Lodge LLC ("The Sweetwater"), respectfully seeks a clarification of the Court's October 12, 2006 Judgment in this matter. The Sweetwater is asking the Court to issue an Order clarifying the Court's Judgment with regard to the particular obligations which The Sweetwater must agree to in order to receive its award in this case. The Sweetwater believes, pursuant to the Court's Opinion and Judgment, that The Sweetwater should not be required to execute a document which creates any obligations for The Sweetwater which exceed the obligations necessary to ensure that The Sweetwater transfers to the government clear and unencumbered title to the property at issue. The Sweetwater is asking that this understanding be explicitly included in the agreement signed by the parties transferring title to the property at issue. The Sweetwater has agreed to all terms which ensure that The Sweetwater transfers clear and unencumbered title to the property. However, The Sweetwater is concerned that any new contract which it executes with the government will subsequently be used as a basis for the government to seek monetary damages against The Sweetwater based on the condition of the

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Document 160

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lodge facilities at issue, irrespective of whether clear title has been transferred. This concern is based on the government's post-judgment filings in this matter in which the government has asserted its belief that The Sweetwater has such obligations. While The Sweetwater believes the Court's Opinion and subsequent Order clearly demonstrated that The Sweetwater had no obligation under the Term Permit for the condition of the lodge facilities after 2001, The Sweetwater is concerned that the government will use any new contract with The Sweetwater as a basis to obtain monies from The Sweetwater which the government otherwise believes are owed to the government. Because The Sweetwater does not want to engage in any further litigation with the federal government over this matter, The Sweetwater is seeking to have the documents which pertain to the transfer of title to the government explicitly state that those documents do not create any obligations on The Sweetwater other than those related to the transfer of clear and unencumbered title. As The Sweetwater has learned from its experience in executing the Term Permit, unstated assumptions can lead to lengthy litigation. Therefore, in an effort to avoid a repeat of its prior situation related to the unstated assumptions about maintenance of the bridges to the lodge facilities, The Sweetwater believes that the understanding and agreements between the parties have to explicitly set forth in the agreement between the parties. Attached hereto as Attachment A and B are a draft proposed Buy Sell Agreement and a draft proposed Bill of Sale for purposes of transferring clear and unencumbered title to the government. The underlined terms in the agreements constitute the language which The Sweetwater is seeking to have included in those agreements. The language which The Sweetwater is seeking to exclude is indicated with a strike-through line. The government has refused to include (or omit) language to the effect of the proposed language on Attachment A

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and B, and the government has informed The Sweetwater that The Sweetwater will not receive its award in this case until it agrees to sign an agreement which does not reflect these proposed edits. For the reasons set forth above, The Sweetwater respectfully requests that the Court issue an Order clarifying its October 12, 2006 Judgment and stating that the underlined terms set forth on the attached documents are consistent with the Court's Judgment and appropriate in this situation. The Sweetwater does not believe that this request in any way alters or modifies the Court's judgment. The Sweetwater further requests that the Court require expedited briefing on this issue. Respectfully submitted, s/Kevin R. Garden _______________________ Kevin R. Garden THE GARDEN LAW FIRM P.C. 211 N. Union Street, Suite 100 Alexandria, VA 22314 (703) 519-1286

Dated: February 14, 2007

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Document 160-2

Filed 02/14/2007

Page 1 of 3

AGREEMENT TO CONVEY OWNERSHIP IN IMPROVEMENTS

Washington, DC, January __, 2007 WHEREAS, The Sweetwater, A Wilderness Lodge LLC (hereinafter referred to as "The Sweetwater") and the United States desire to carry through the Final Judgment issued by the United States Court of Federal Claims in the matter of The Sweetwater, A Wilderness Lodge LLC v. United States, No. 02-1795C and dated October 12, 2006, which was issued pursuant to the Court's Opinion dated October 6, 2006 (copies of both the Opinion and Judgment are attached hereto and incorporated herein); The Sweetwater and the United States hereby enter into the following agreement: The United States agrees to pay in a prompt manner that amount as set forth in the Final Judgment issued by the United States Court of Federal Claims dated October 12, 2006 in the matter of The Sweetwater, A Wilderness Lodge LLC v. United States, No. 021795C as payment in full for all improvements, structural or otherwise, located on the 15.4-acre site covered by the Term Special Use Permit issued by the United States Department of Agriculture Forest Service and dated August 21, 1995. Both parties to this agreement have determined that the total amount of funds to be paid pursuant to the Court of Federal Claims Final Judgment is $806,688.88. The Sweetwater agrees to convey the following property to the United States: all structures and all other attached or unattached property (collectively the "Improvements") located on the 15.4 acre site covered by the Term Special Use Permit which was issued by the United States Department of Agriculture Forest Service and dated August 21, 1995. The Improvements include a lodge building, five cabins, a manager's residence, water and sewage systems, all utility lines, and fencing. The Improvements include all property, whether attached or unattached, present on the site area on May 4, 2005, the date the Improvements were appraised by Mr. Que Mangus as part of the litigation referenced above. The Improvements include, but are not limited to, the items listed on the attached document titled "Sweetwater Improvements Transferred To The United States," and this document is part of this Agreement. The Sweetwater warrants and represents that neither it nor any of its representatives have removed or damaged, or are aware of the removal or damage to, any property of any kind from the site since the date on which the lodge facilities were appraised by Mr. Que Mangus for purposes related to the litigation referenced above. The Sweetwater warrants and represents that it presently has title to the Improvements, and that at the time the transfer is consummated, The Sweetwater will convey to the United States good and marketable title to the Improvements at the time it executes the attached Bill of Sale. The Sweetwater further represents and warrants that: (i) to the best of The Sweetwater's knowledge, there are no parties in possession or

Attachment A

Case 1:02-cv-01795-JFM

Document 160-2

Filed 02/14/2007

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occupancy of the Improvements other than The Sweetwater; (ii) The Sweetwater shall not in any way alter or authorize the alteration of the present state of the Improvements from the date hereof through the date of transfer; (iii) as of the date hereof and on the date of transfer there is and shall be no litigation pending or threatened which in any manner affects the Improvements; (iv) as of the date hereof and on the date of transfer there are no leases, written or oral, affecting the Improvements; and (v) as of the date hereof and on the date of transfer the Improvements are not encumbered by any lien, mortgage, or other secured interest that would encumber clear title. The Sweetwater warrants and represents that there are, and will be, no agent's, broker's, or other intermediary's fees or commissions payable as a consequence of this transaction, and that it has not dealt with a broker, agent, or other intermediary who might by reason of such dealing have any claim for a fee, commission, or other compensation, expenses, or charges of whatever nature that would constitute an encumbrance on title to the Improvements. The parties agree that nothing set forth in this Agreement places any obligation on the parties which is contrary to, inconsistent with or in excess of the findings, determinations and obligations of the parties as set forth in the Court's Opinion dated October 6, 2006 and the Court's Judgment dated October 12, 2006. Similarly, the parties agree that The Sweetwater, by executing this agreement, is not agreeing to any obligations or duties which are not related to and necessary for ensuring the transfer or clear and unencumbered title to the Improvements. Subject to any express warranties set forth herein, The Sweetwater is transferring the Improvements to the United States in their "as is" condition. The parties are aware of and acknowledge significant rodent damage to the lodge buildings as of December 2006. Pursuant to the Court's January 24, 2007 Order, the parties agree that the United States will not assert in any court or administrative proceeding that The Sweetwater is financially responsible for this damage. Pursuant to this Agreement, The Sweetwater will execute and deliver a good and sufficient bill of sale, and deliver same to the United States conveying good and marketable title in the Improvements. The Sweetwater will also provide to the United States proper and adequate releases of any mortgage interests held by any institution or person in the Improvements as well as documentation demonstrating that all outstanding tax liabilities through 2006 have been satisfied. Upon signature of this Agreement by both parties, The Sweetwater will provide all sets of keys for access to the facilities to the United States along with the Bill of Sale. Any warranties not explicitly identified herein are not applicable to this agreement or sale.

Attachment A

Case 1:02-cv-01795-JFM

Document 160-2

Filed 02/14/2007

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The parties agree that receipt by either party of a facsimile copy of this agreement, signed by the other party, shall be evidence that the signing party agrees to be bound by the terms of this agreement as if the facsimile copy were an original document. Executed by: On behalf of The Sweetwater, A Wilderness Lodge, LLC, ____________________________ Jeffrey C. Mummery Managing Partner The Sweetwater, A Wilderness Lodge LLC Dated: ______________________ On behalf of the United States,

_________________________ Rebecca Aus Forest Supervisor Shoshone National Forest Dated: ___________________

Attachment A

Case 1:02-cv-01795-JFM

Document 160-3

Filed 02/14/2007

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BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS that The Sweetwater, a Wilderness Lodge, LLC, a Wyoming Limited Liability Company, of the County of Park, State of Wyoming, for and in consideration of a promise to pay the sum of $806,688.88, does hereby transfer and convey to the United States, all Improvements located on the 15.4acre site covered by the Term Special Use Permit which was issued by the United States Department of Agriculture Forest Service to The Sweetwater, A Wilderness Lodge, LLC and dated August 21, 1995. The Improvements include a lodge building, five cabins, a manager's residence, water and sewage systems, all utility lines, and fencing. The Improvements also include all property, whether attached or unattached, present on the site at the time the Improvements were appraised as part of the litigation between the parties. The Improvements include, but are not limited to, the items listed on the attached document titled "Sweetwater Improvements Transferred To The United States." These Improvements are being conveyed pursuant to the "Agreement to Convey Ownership in Improvements" signed by the parties on_______________. The Sweetwater further warrants and represents that: (i) to the best of The Sweetwater's knowledge, there are no parties in possession or occupancy of the Improvements; (ii) The Sweetwater has not in any way altered the state of the Improvements since the date of the Agreement between the parties; (iii) as of the date hereof there is no litigation pending or threatened which in any manner affects the Improvements; (iv) as of the date hereof there are no leases, written or oral, affecting the Improvements; and (v) as of the date hereof the Improvements are not encumbered by any lien, mortgage, or other secured interest. Subject to any express warranties otherwise agreed to by The Sweetwater in writing related to the Improvements, The Sweetwater is transferring the Improvements to the United States in their "as is" condition. The Sweetwater binds itself, its successors and assigns, to represent and maintain that the title to all of the Improvements resides with the United States pursuant to this transfer.

Attachment B

Case 1:02-cv-01795-JFM

Document 160-3

Filed 02/14/2007

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IN WITNESS WHEREOF, _________________________ and ______________________ have hereunto set their hands and seals this ______ day of ____________________, 2006.

Attachment B