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HomeMy WebLinkAbout99- Edsall Construction Settlement Agreement "~ " , .. 0"'" ~. - SETTLEMENT AGREEMENT , T.HIS SETTLEMENT AGREEMENT made and entered into this d day of ~. , 1999, by and betwecn EDSALL CONSTRUCTION c/o JOE HANSEN (here' lafter referred to as "EDSALL") and the CITY OF BOZEMAN, a political subdivision of the State of Montana (hereinafter referred to as "CITY"). WIT N E SSE T H: WHEREAS, the parties to this Agreement are parties to that certain lawsuit captioned City ofBozernan v. Hdsall Construction c/o .Joe Hansen, Cause No. DV 98-339, Montana Eighteenth Judicial District Court, Gallatin County; and WHEREAS, the parties met bcfore Mark L. Guenther as mediator on August 4, 1999 in an effort to mediate the factual and legal issues among the parties; and WHEREAS, the parties have negotiated, in good faith, a resolution ofthe claims and issues, subject to the approval by the Bozeman City Commission where appropriate, of the terms and conditions of this settlement, NOW, THEREFORE, in mutual considcration of the covenants and conditions contained herein, the parties hereby agree as follows: 1. Purpose. The purpose of this Agreement is to settle all claims, controversics or issues arising out of the pleadings filed by the respective partics in the above-captioned litigation. These issues includc, but are not limitcd to, City's claims of account owing, breach of contract, and costs and attorney's fees expended and recoverable if judgment is entered in the favor of City. Edsall's claims include abuse of process, accounting in equity, constmctive tmst, costs and attorney's fees expended to defend itself and recoverable if judgment is entercd in the favor of Edsall. Settlement negotiations were conducted bcfore Mark L. Guenther on August 4, 1999. .All parties were personally present represented by respectivc members of a party and represented by respective counsel. The settlement negotiations rcsultcd in a settlement, the tcrms of which are dcscribcd in this Agreement. 2. Release of Claims. Upon mutual exchange of covenants and conditions hercin and the change in legal positions of the parties: a. Edsall shall pay to City the sum of Twelve Thousand and N 0/ 100 Dollars ($12,000.00), payable as follows: ~~ (\Jvu:k--:i_504z1 ~~f~~?~O~L.ih ~ ~ ~ ~ ~ ~ ik<.-~~ r ~~l.L. v-rt tit. ~ ~ 1; ~-. b. City of Bozeman, for its heirs, representatives, successors and assigns, forever releases Edsall from any and all claims, demands, judgments, including attorney's fees made, or , ~ ~ .., ..~" '.. - which could have been made, in its pleadings contained in the above-captioned litigation. Further, the City releases Edsall from any and all claims, causes of action or potential liability arising out of any unclaimed, potential or unforcseen claims which relate in any way to the facts described in the parties' pleadings. c. Edsall, for its heirs, representatives, successors and assigns, forever releases the City of Bozeman from any and all claims, demands, judgments, including attomey's fees made, or which could have been made, in its pleadings contained in the above-captioned litigation. Further, Edsall releases the City from any and all claims, causes of action or potential liability arising out of any unclaimed potential or unforeseen claims which relate in any way to the facts described in the parties' pleadings. d. The parties shall sign releases in a form prepared by counsel for the City and approved by counsel [or Edsali, which rcicases the parties from any and all kno"Vvn or unknown claims and contains an indemnity protecting thc rcleasees from any claims made by the rcleasors arising out of the facts described in the pleadings in the above-captioned litigation. e. The release will apply to and benefit all employccs, officers, agents, representatives and attorneys of the parties being rcIeased. 3. Dismissal of Suit. Upon payment of the sum of Twelve Thousand and Noll 00 Dollars ($12,000.00) by Edsall to the City, the City shall dismiss the above-captioned litigation, with prejudice, each party to pay their own attorney's fees and court costs. 4. No Admission of Liability. It is understood that thcse covenants and agreements are made and acceptcd as the consideration for full satisfaction and accord to compromisc a disputed claim, and that neither the covenants and conditions by the parties, nor thc negotiations for settlement shall be considered as an admission of liability. 5. Pretrial Proceedings. Until the Stipulation for Dismissal is filed with the Court, all pretrial proceedings will be suspended. 6. Goveming Law. It is agreed that this Agreement shall be governed by, construed and enforced in accordance with the laws ofthe State of Montana. The venue for all judicial proceedings shall be Gallatin County, Montana which the parties agree is a reasonable venue for any judicial proceeding. 7. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind prcceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. No alterations, modifications or additions to this Agreement shall be binding unless reduced to writing and signed by the parties to be charged therewith. 8. Waiver. Any forbearance, failure or delay by any party to this Agreement in exercising any right, powcr or remcdy hereunder shall not bc deemed to be a waiver of such right, I , ~ ,...... c~, ,.,.... .. power or remcdy and any single or partial exercise of any right, power or remedy hereundcr shall not preclude the further exercise thereof; and any right, power and remedy shall continue in full force and effect until such right, power or remedy is specifically waived by an instnIment in writing. No waiver of any of the provisions of this Agreement shall be deemcd or shall constitute a waiver of any other provisions of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. 9. Time is of the Essence. Time is expressly declared to be the essence of this Agreement. IN WITNESS WHEREOF, each party to this Agreement has caused it to be executed at Bozeman, Montana on the date first above written. EDSALL CONSTRUCTION By. 1 ~\ j- Clark V. Johnson, City Manager ATTEST: (2nt;l d~ Robin 1" Sullivan, Clerk of Commission