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
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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,
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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
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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
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•• BAXTER LANE AND DAVIS LANE,' PR(>JrCT _ 4524.11402A1
NIGHT•OFWAY ACOUNMON DAYS W712015
41 1 C,IY DF 13mr-MAN,MONYANA
PARCE-L 2-2 EXHIBIT A
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