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HomeMy WebLinkAbout17- Settlement Agreement - W. Peterson and D. Peterson - Baxter and Davis Right-of-Way Acquisition SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement"), is effective as of this ZZ b day of June, 2017 (the "effective date"), by and between the City of Bozeman (the "City") and William R. Peterson and Dianne Peterson (the "Petersons"). The parties to this Agreement may be collectively referred to as the "Parties" or individually as a "Party." BACKGROUND WHEREAS, the City desires to obtain a public use easement and a temporary construction easement over a part of the real property owned by the Petersons (the "Property"), commonly known as 3221 Baxter Lane, Gallatin County, Montana, legally described as: S 1/2 of the SW 1/4 of the SW 1/4 of the SW 1/4 of Section 35, Township I South, Range 5 East, Gallatin County, MT. Approximately 5 acres. WHEREAS, the City desires to obtain the public use easement for the purpose of expanding and improving the intersection of Baxter Lane and Davis Lane in Bozeman, Montana. WHEREAS, the City desires to obtain the temporary construction easement for the purpose of constructing and improving the intersection of Baxter Lane and Davis Lane in Bozeman, Montana, WHEREAS, the City filed a Complaint for Condemnation on December 4, 2015, in district court in Gallatin County, initiating a lawsuit, Civil Cause No. DV- 15-971 C (the "Lawsuit"), seeking to condemn part of the real property owned by the Petersons and establish a permanent easement and a temporary easement (the "Easements"), WHEREAS, the Petersons successfully obtained a final judgment in favor of the Petersons and against the City on March 30, 2017. The Final judgment dismissed the Lawsuit with prejudice and awarded the Petersons $113,571.89 for the necessary expenses of litigation. WHEREAS, the City filed a Notice of Appeal on April 29, 201.7, seeking relief from the final judgment of the district court (the "Appeal"). SFI 11,-1 PhGE I 0f'6 WHEREAS, BMLP Management, LLC, desires to purchase the Property from the Petersons. WI[Tv?REAS, the :Parties desire to fully and finally settle and. compromise their dispute by this Agreement. NOW, THEREFORE,, in consideration of the mutual covenants herein contained and for other good and valuable consideration whose receipt and sufficiency are aelmowledged, the Parties agree as follows; I. Terms of Settlement A. This entire Agreement is contingent upon the closing of a sale of the Property from the Petersons to BMLP Management, LLC. The sale of the properly is a material part of this Agreement. The Parties contemplate that the closing of the sale will occur on December 15, 2017. if, for any reason, the closing of the sale does not occur, then this Agreement is rendered null and void. B. The City will pay the Petersons $140,000.00 to fully and finally settle the Lawsuit. C. Conveyance of the Property to BMLP Management, LLC shall be subject to the Easements. At the closing of the sale, but prior to recording any instrument of conveyance, the Petersons shall grant the City written easements over part of their real property in substantially in the same form as Exhibit A and Exhibit B hereto. D. The City and the Petersons agree to stay the Appeal pending the sale of the Property. After the closing of the sale of the Property, the City stipulates and agrees that the City's attorney of record shall dismiss with prejudice, as fully settled Upon the merits, the above-described civil Appeal. . Mutual Release Except for the obligations set forth under this Agreement, the Parties, on their own behalf', and on behalf of the Parties' grantees, agents, representatives, heirs, beneficiaries, devisees, trustees, assigns, assignors, attorneys, hereby agree to release and forever discharge by this Agreement, all of the other Parties to this .Agreement, and each of their past and present agents, employees, representatives, AGREEMENT PAGE 2 of 6 officers, directors, members, attorneys, accountants, insurers, advisors, consultants, affiliates, assigns, successors, heirs, beneficiaries, predecessors in interest, joint ventures, and. commonly-controlled. entities, from: all liabilities, claims for indemnity, causes of actions, charges, complaints, suits, claims, obligations, costs, losses, damages, rights,judgments, attorneys' fees, expenses, bonds, bills, penalties, fines, and all other legal responsibilities in any form whatsoever, whether known or unknown, whether suspected or unsuspected, arising from any acts or omissions occurring prior to the effective date of this Agreement relating to the Property. 3. Released Parties For the purposes of this Release, the Parties and the Parties' heirs, personal representatives, successors, assigns, employees, attorneys, partners, officers, shareholders, directors, members, parent companies, subsidiaries and related companies and their successors and assigns shall be considered and referred to collectively as "Released Patties." 4. No Admission of Liability It is understood that the above-mentioned sum and mutual releases are accepted as the sole consideration for full satisfaction and accord to compromise a disputed claims, and that neither the consideration exchanged, nor release of claims, nor the negotiations for settlement shall be considered as an admission of liability. This Settlement Agreement is entered solely to avoid costs of further litigation and end the disputes between the Patties. 5. NoAdditional Claims Each Party represents to each other Party that he/she/it has no additional claims relating to the Property. 6. Future Cooperation All parties agree to cooperate fully, to execute any and all additional documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement. 7. No Reliance S E ITLEM ENTA G R B H,M ENT PA YE 3 of 6 All patties warrant, represent and agree that no party is relying on any advice of the Released Parties or their attorneys as to the legal, income tax or any other consequence of any kind arising from this Agreement and the settlement of this matter. Released Parties and their attorneys shall not be liable if the legal, income tax or other consequences of this Release and settlement are other than those anticipated. 8. Entire Agreement This Agreement constitutes full, complete, unconditional and immediate substitution for any and all.rights, claims, demands and causes of action whatsoever, which heretofore existed or might have existed on behalf of any Party against any other Party and their successors, predecessors, subsidiaries, affiliates, parents, shareholders, partners, employees, agents, attorneys, officers, and directors. This Agreement supersedes any and all agreements — whether written or oral—that may have previously existed between the Parties. Further, this Agreement is the sole and complete agreement of the Parties relating in any way to the subject matter hereof. No statements, promises, or representations have been made by any Party to any other, or relied upon, and no consideration has been offered, promised, expected or held out other than as may be expressly provided herein. 9. Disclaimer The Parties have carefully read the foregoing, discussed its legal effect the Parties' respective attorneys, understand the contents thereof, and,sign the same their own free will and accord. This Agreement shall be binding upon each party's heirs, successors, personal representatives and assigns, 10. No Waiver or Modifications The provisions of this Agreement may not be waived, altered, amended, or repeated, in whole or in part, except upon prior written consent of the Parties hereto. 11. Governing Law ':Phis Agreement shall. be construed and enforced in accordance with, and governed by, the laws of the State of Montana, PAGE/I of 6 12. Authority Each Party represents that he, she, or it is authorized to execute this Agreement. Each person executing this Agreement on behalf of a person. or entity represents that he, she, or it is authorized to execute this Agreement on behalf of himself or itself. DATED this day of June, 201.7 CAUTION: READ BEFOREi SlGrNING! CITY OF BOZEMAN B 0 BY 0 Interim City anager AAV City rie-r-�f STATE OFI'A6�MON co, 0 ss. County of Gallatin On this c) day of June, 2017, before me, a Notary Public for the State of Montana,personally appeared Dennis M. Taylor and Robin Crough, known to me to be the Interim City Manager and City Clerk, respectively, of the City of Bozeman and the persons whose narnes are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written, (NOTARIAL SEAL) ALICIA KENNEDY Notar Public y NOTARY PUBLIC for the ;fl i- STATE 01:MONTANA Residing at Bozeman,Montana sriAL My Commission Expires op Mp August 04,2019 SE'F'1'1.,EMI-',,N'F AGREEMEN'r PAGE'5 of'6 DATED this J-day of June, 2017 CAUTION: READ BEFORE SIGNING! WILLIAM R. PETERSON AND DIANNE PETERSON William R. Peterson dL�� �Liiarnne Peterson State of Montana ) ss. County of Gallatin ) This record was acknowledged before me on �,, � �� , 2017 by William R. Peterson and Dianne Peterson. (Notaty Seal) Notary ublic i P�Ev,iyAs; STACEY .Ajb q�, Notary Pu No7ARi�� 2 for the State of* SEAL, = Residing='� . P��,' Belgrade, M"9,��pF Mp My CommissionFebrua 12, I i I i i SETTLEMENT AGREEMENT PAGE 6 of 6 P.ROJEC,T:IVAME:,,BAXTER:LN.;AND,;' CITY OF BOZEMAN 'DAMS;I:N.:RWAggUISI7'IO.N.,' Engineering Division !PROJECT�f::452a11402.Q1' Public Works Department �` ti" PARCEL# 21 PUBLIC USE EASEi'tiflENT PUBLIC USE EASEMENT THE GRANTOR(S),WiLLIAM AND DIANNE PETERSON, whose address is 5001 East Baxter Lane Bozeman, MT 59718, for and in consideration of Ten and No/100 - Dollars, and other valuable consideration, in hand paid, conveys and warrants to the CITY OF BOZEMAN, a Municipal Corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman Montana 59715, Its successors or assignees, a perpetual, full and unrestricted easement and right-of-way in, over, under, along, through, and across the following-described tract of land located in Gallatin County, Montana: A public use easement to the city of Bozeman, located in the south half of the southwest quarter of the southwest quarter of the southwest quarter (SY2SW1/4SW'/,SW%) of Section 35, T1S, R5E, P,M,M,, city of Bozeman, Gallatin County, Montana, more particularly described as follows and as shown on the attached Exhibit A; Beginning at the southwest corner of the easement herein described, being a point on the north right- of-way of Baxter Lane, from which point the southwest corner of Section 36,T1S, R5E, P.M.M., bears S 46° 08' 15"W, 42.63 feet, said point of beginning; Thence, from said point of beginning, N 010 24, 34" E, 301.69 feet along the east right-of-way of Davis Lane; Thence, S 89' 08' 21" E, 20.12 feet; Thence, S 010 23' 13"W, 239.33 feet; Thence, S 36° 06'231'E, 62.87 feet; Thence, S 890 08, 19" E, 678.66 feet; Thence, S 01°24' 61"W, 20,06 feet to the north right-of-way of Baxter Lane; Thence, N 890 08' 05"W, 631.08 feet along the north right-of-way of Baxter Lane to the point of beginning, and containing 19,004 sqft, more or less, All improvements are the property of the CITY OF BOZEMAN, removable at its option. The failure of the GRANTEE to exercise any of Its rights granted herein shall not be construed as a waiver or abandonment of the right The above-named Grantor hereby covenants with the CITY OF BOZEMAN that said Grantor has good fitle to the above-described tract of land and covenants that the CITY OF BOZEMAN shall have quiet and peaceable possession thereof; and shall have a free and unrestricted right to maintain said facilities as long as the right-of-way of which this easement area Is a part, remains a public way. Dated this day of 20 William Peterson Dlsnne Peterson— CITY OF BOZEMAN PROJECT NAME:BAXTERIDAVIS Parcel 2-1 PROJECT NUMBER:4624.11402,01 Page 1 of 3 EXHIBIT ACKNOWLEDGMENT OF GRANTOR STATE OF MONTANA ) County of Gallatin On this—_day of. 20—, before me, the undersigned, a Notary Public,in and for the said State, personalty-appeared-.-the---'Gi-antor, William and Dianne Peterson, known to me to be the identical persons who executed the foregoing Instrument and acknowledged to me that William and Dianne Peterson signed the same as William and Dianne Peterson free and voluntary act and deed, with full knowledge of its contents, for the uses and purposes there!" mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this day and year above written. Notary Public In and for the-State of Mo`46n—A� My Commission Expires: cc-RTirIGATE OF ACCEPTANCE THIS IS TO CERTIFY that the CITY OF BOZEMAN, a Municipal Corporation of the State of Montana, Grantee herein, acting by and through its City Manager and City Clerk for the City of Bozeman, hereby accepts for public purposes, the real property, or Interest therein, described In this instrument and consents to the recordation thereof: CITY OF BOZEMAN Date: By: Chris Kukulskl City Manager ATTEST: By: Stacy Ulmen City Clerk CITY OF BOZEMAN PROJECT NAME:BAXTF-RA)AVIS Parcel 2-1 PROJECTNUMBUR:4624AII402.01 Pago 2 of 3 STATE OF MONTANA )ss' County of Gallotin The foregoing instrument was acknowledged before me this _ day of 20 by Chris Kukulski and Stacy Ulmen, known to me to be the City Manager and City Clerk for the City ofBozeman and the persons whose names are subscribed to this instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this day and year above written. Notary Public in and for the State of Montana My Commission Expires: CITY OF BOZEMAN PROJECT NAME:BAXTFRIDAV18 Parcel 2-1 PROJECT N(jMBl-R:4524.11402.01 Page 3 of 3 DAMS Ltgt/L'-'. . . ... / % / (CGAR�Et4T NF•ft:, / / / / /WILLIAMAND DIANNF PETERSON /6W.1EA5TIYA1(TERtANE I�!(S%2S,VZWY4,5 i OF SEC. 35, T1S, R5E, • 1 � / / / NF.lV PUBLId U9E �/ •/ ✓ f% / / \) WPMFNT • I KXISYINPJFAOJEMFNT nt W-24" .,-WI, rtET,r J �t f• / / / 12 800`W21'F,20.12ItETS FRET /tA sU,Wj9'G�5 07FFFET AS S to`Qpdd''of FEE YL6 SOt`'d4'6T'W,20.08 FEET PROPFRTY4 NE/ LA A PHOUC USG GO W Etf I'TO 7NE.CfiY OFtlOYk,VNl,IOCATEOIII THL'Sg11171 1w.f OF HIC Ii W11R5TifiTCAMR1kHOFYt1ESU1/i>NVE&i T1q gTIB,1E11 P'11 SYA7'11R1T:SY QINRTER(SyLtWyEVW01ri�OPGE0TN/11 a5, 116E,PMIA.CRY OF oo7.E1V1R,OAt1AHH COlk11Y,KONTANA,NUNS PAITI1CUtA1>i.Y IN>6CRIn P.O AS Taimva; OGUW6110 AT YHO SOUMWITYCUNIIEH OPINE E/,M1WRTMIR241Od: 111BEO, ` U VW A POINT OR YNE11011H1 01MOFAVAY OP 8AXRAtAW-..rC"v%iEC21 POIHTYHE 8OUH0VIAT co""OKAE"Ofl,3.5,T1q W.,PALM,OEM$896' (YhV 1.E(3CdJf1 or ICTv,62.0.1 rvu'+VO Pam oP umpOiNV,IsWICE,IYi( UM FOIfA'PF NIXINWH0,R01.24'S9'I."Im PcrT NA'43 Tllo Efm iwIH-014YAYOF 7,j�7 a,trtY r-,ain Mr OAVISIN76}lTiF210E,869'Oa'21'P,R0,12 FI.TTl71#'J10E,G 01'23'iY%V,2395! FF7:'i�YHFSOV'A:K'OSW-BYTUI ENORT,00H DYlf E,ti AY PMxy: L.-.,�AM'v.e�r,WeeH,uttr LAW.; N 61`W,2UA8 PEETYUYTtJ,O A IIE MIF•1Yvain Mr ip.R I.N1t!;TilE/1CL',H 00'OL'Ob"W.011.01 Ff.£TN11H0 T11EiX1nR1 N61nOTAYAYOI' •;; q+++v ^--^-• UAXIEH IANUTOIf16 PO0!(M°D@OPIII➢10,AIIO C(N1TAIfk12O10p0{ep7,pwnt: I�:'iR:.a A4l.F[YANvn SCNL I4 IOET. DAXTUt LANE AND DAVIS LAW rAOJE .,., g5ZO1a0z01 RIGRT-GF WAY ACOW ]SIION DATE W�, 0I2Y1201s 13 W L CITY OF s07FMAN,MONTANA PARCEL.2-1 rxHIBIT A A7IYniIfMAin]XC J1,/1S RY.P•wt �« '.PROJECT:NAME BAXTER LN.AND O$ CiTY OF BOZEMAN DAY S.LN:'RIW;ACQUISITION:' Engineering Division PROJECT M 462411402 01 i Public Works Department PARCEL#:2,2:. I �r r TEMPORARY CONSTRUCTION _. . ,.EAS.EMENT TEMPORARY FONSTRUCTION EASEMENT THE GRANTOR(% WILLIAM AND DIANNE PETERSON,whose address is 5001 East Baxter Lane Bozeman, MT 69718, as owners of the property described below, and its/their successors and assigns for good and valuable consideration, conveys and warrants to the CITY OF BOZEMAN, a Municipal Corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman Montana 59715, Grantee and to its successors and assignees, an unrestricted Temporary Construction Easement, over,and across the following described real estate: A temporary construction easement to the city of Bozeman, located In the south half of the southwest quarter of the southwest quarter of the southwest quarter (S'/SW%SW%SW%) of Section 36, T1S, RSE, P.M.M., city of Bozeman, Gallatin County, Montana, more particularly described as follows and as shown on the attached Exhibit A; Beginning at the southwest corner of the easement herein described, being a point on-the north right-of-way of Baxter Lane, from which point the southwest corner of Section 35, T1S, R5E, P.M.M,, bears S 59° 46' 36" W, 96.81 feet, said point of beginning; Thence, from said point of beginning, N 360 06' 23" W, 52.87 feet along the east right-of-way of Davis Lane; Thence, N 010 23' 13" E, 239.33 feet along the east right-of-way of Davis Lane; Thence, S 89° 08' 21" E, 6,00 feet; Thence, S 01° 23' 13" W, 237.68 feet; Thence, S 360 06' 23" E, 48.68 feet; Thence, S 890 08' 19" E,46.01 feet;Thence, N 360 01' 50" E, 27.80 feet; Thence, S 89° 08' 19" E, 41.00 feet; Thence, S 300 26' 49" E, 26.92 feet; Thence, S 899 08, 19" E, 459.61 feet; Thence, S 010 24' 51" W, 5.00 feet to the north right-of-way of Baxter Lane; Thence, N 890 08' 19"W, 678.66 feet along the north right-of-way of Baxter Lane to the point of beginning, and containing 6,617 sqft, more or less. delineated as to said tract of land on the exhibit attached hereto and made a part hereof as Exhibit A of this instrument and designated as Parcel No.2-2. Said parcel, containing 5,617 square feet, more or less, is hereby provided to the CITY OF BOZEMAN, for the purpose of constructing and/or Improving a public street, highway,walkway,trail and/or electric, telephone or telecommunications,gas, water, sewer, drainage, or other utility transmission or distribution facilities as necessary for the Baxter Lane and Davis Lane Intersection Improvement Projeot. Upon completion of said project for which access is hereby provided, the CITY OF BOZEMAN shall restore the property as nearly as possible to its original condition, The CITY OF BOZEMAN agrees to hold Grantor harmless from any and all liability that may result or arise from the exercise of the rights granted hereby. The Grantor hereby covenants with the CITY OF BOZEMAN that the Grantor has good title to the above- described tract of land, and covenants that the CITY OF BOZEMAN shall have quiet and peaceable possession thereof and use thereof during the period of the Temporary Construction Easement. This CITY OF BOZEMAN PROJECT NAME:13AXTFRILIAVI5 Parcel 2-2 PROJECT NUMBER:41524,11402.01 Page 1 of 2 EXHIBIT Temporary Easement is in effect for a period beginning the 1st day of construction on the property, and ending two (2) years later, at which time this easement shall expire and be of no force and effect. A release of easement will be recorded at the conclusion of the project. Dated this—day of 20—. William Peterson Dianne Peterson ACKNOWLEDGMENT OF GRANTOR STATE OF MONTANA )ss County of Gallatin On this—day of._ 20,__, before me, the undersigned, a Notary Public in and for the said State, personally appeared the Grantor, William and Dianne Peterson, known to me to be the identical persons who executed the foregoing Instrument and acknowledged to me that William and Dianne Peterson signed the same as William and Dianne Peterson free and voluntary act and deed,with full knowledge of Its contents,for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this day and year above written, Ndf6ry Public in and for the State of Montana My Commission Expires: orry or BOZEMAN PROJ IrCT NAME:BAXTERIDAVIS paroel 2-2 PROJECT NUMBER 4524,11402.01 Page 2 of 2 NAM LAME . 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