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HomeMy WebLinkAbout19- Settlement Agreement - Koopman, et al. v. City of Bozeman, et al. SETTLEMENT AGREEMENT This Settlement Agreement is made and entered into this 18th day of April, 2019, by and between Roger Koopman, Paul F. Johnson, and Does 1-5 Area Residents and Taxpayers ("Plaintiffs"), and the City of Bozeman, Mayor Cyndy Andrus, Bozeman City Commissioners, and John and Jane Doe 1-30 Public Employees/Officials ("City of Bozeman"), in full and final resolution of claims related to Koopman, et al. v. City of Bozeman, et al., Cause Nos. DV 18-1166B and DV 18-1215C, Montana Eighteenth Judicial District Court, Gallatin County ("Lawsuit"). RECITALS WHEREAS Montana Code Annotated §§ 2-2-121(3) and 13-35-226(4) allows public officers and public employees to use public time, facilities, equipment, supplies, personnel, or funds to educate the public regarding the impact of passage or failure of a ballot issue on government operations if the use is: (i) authorized by law; or (ii) properly incidental to another activity required or authorized by law, such as the function of an elected public officer, the officer's staff, or the legislative staff in the normal course of duties; and WHEREAS the City of Bozeman is committed to encouraging and facilitating public participation, and uses such public forums and tools as: (1) noticed City Commission and citizen advisory board meetings, (2) advertised Town Hall events, (3) project webpages on the City's website related to particular ballot issues and other City projects, (4) social media and other user-friendly online and email tools for submitting public comment, (5) an online repository for all public comment which is easily accessible on the City's website, and (6) push-notification systems to inform the public; and WHEREAS Plaintiffs filed the Lawsuit in November 2018, alleging violations of Montana Code Annotated §§ 2-2-121, 13-35-226, and 13-37-210 by the City of Bozeman with regard to a bond election for the Bozeman Public Safety Center; and WHEREAS on March 26, 2019, the Montana Eighteenth Judicial District Court, Hon. Brenda R. Gilbert ("District Court"), dismissed the Lawsuit and entered judgment in favor of the City on March 27, 2019; and WHEREAS Plaintiffs possess certain rights under the law to seek post-judgment relief in the District Court and to appeal the District Court's rulings to the Montana Supreme Court; and Koopman, et al.v. City of Bozeman,et al.—Settlement Agreement Page 1 of 3 WHEREAS the City of Bozeman seeks finality to the Lawsuit so that bonds can be issued and the Bozeman Public Safety Center project can proceed on time and as approved by Bozeman electors; NOW THEREFORE, Plaintiffs and the City of Bozeman enter the following Settlement Agreement: 1. Settlement Terms. Plaintiffs and the City of Bozeman agree to the following terms in full and final resolution of the Lawsuit: A. The City of Bozeman shall pay to Plaintiffs the sum of$21,955 for costs incurred bringing the Lawsuit, including attorney's fees. B. If the City Manager proposes using public funds for an educational campaign in connection with a ballot issue to explain the impact of the ballot issue on government operations, the City Manager shall present to the City Commission a budget with sufficient detail such that: (1) the public can appear and comment on the proposed use of public funds, and (2) the City Commission can consider and adopt all or parts of the proposal. C. Plaintiffs absolutely and irrevocably waive: (1) any right to post-judgment relief available under the Montana Rules of Civil Procedure, any provision of Montana Code Annotated,or at common law;and(2)any right to appeal of any issue,order, or other aspect of the Lawsuit. D. The parties mutually agree that the City of Bozeman s existing commitments which encourage public participation will be enhanced by providing user friendly access to its existing tools in the form of a banner specific to any particular City initiated discretionary ballot issue, which will be displayed on the City's homepage during an election. E. Plaintiffs and the City of Bozeman shall file a joint notice of final settlement and Plaintiffs' waiver of appeal, a copy of which is attached as Exhibit A. 2. No admission of wrongdoing. It is understood that the above-mentioned sum of attorney's fees and other provisions are accepted as the sole consideration for full satisfaction and accord to compromise a disputed claim, and that neither the payment of the sum,the insertion of the proposed provisions,nor the negotiations for settlement shall be considered as an admission of wrongdoing by the City of Bozeman. Koopman,et al. v. City of Bozeman,et al.—Settlement Agreement Page 2 of 3 3. Ratification. This Settlement Agreement is subject to ratification by the Bozeman City Commission, and is not considered final until such approval is given. 4. Agreement not confidential. It is expressly stated herein that this Settlement Agreement and all of its terms,without limitation, are not confidential,and are subject to public dissemination under the laws and Constitution of the State of Montana. 5. Authority. By his signature below, Plaintiff Roger Koopman represents and attests that he is authorized to settle this matter in the manner described herein, and that his signature individually and separately binds each plaintiff. 6. Severability. Should any provision of this Settlement Agreement be determined to be unenforceable, all remaining terms and clauses shall remain in force and shall be fully severable. 7. Final agreement. This written Settlement Agreement constitutes the final agreement between the parties and shall supersede any oral agreements to the contrary. DATED this 18th day of April, 2019. DATED this 18th day of April, 2019. Roger Koopman Andrea Surratt,City Ma ger City of Bozeman APPROVED BY: APPROVED BY: Chris J. Gallus Jo . Newman Attorney for Plaintiffs Boone Karlberg, P.C. Attorneys for City of Bozeman Koopman,et al.v. Cittj of Bozeman,et al.—Settlement Agreement Page 3 of 3 EXHIBIT A Chris J. Gallus Attorney at Law 1423 Otter Road Helena, MT 59602 Tel.: (406) 459-8676 chrisjgalluslaw@gmail.com Attorneys for Plaintiffs Roger Koopman, Paul F. Johnson, and Does 1-5 Area Residents and Taxpayers Randy J. Cox Natasha Priming Jones John M. Newman BOONE KARLBERG P.C. 201 West Main, Suite 300 P.O. Box 9199 Missoula, MT 59807-9199 Tel.: (406) 543-6646 Fax: (406) 549-6804 rcox@boonekarlberg.com npjones@boonekarlberg.com jnewman@boonekarlberg.com Attorneys for Defendants City of Bozeman, Cyndy Andrus, City Commissioners, and John and Jane Doe 1-30 Public Employees/Officials MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT GALLATIN COUNTY ROGER KOOPMAN, et al. Cause No. DV-18-1166B Hon. Brenda R. Gilbert Plaintiffs, V. CITY OF BOZEMAN, et al. Defendants. ROGER KOOPMAN, et al. Cause No. DV-18-1215C Hon. Brenda R. Gilbert Plaintiffs, V. JOINT NOTICE OF FINAL SETTLEMENT AND PLAINTIFFS' CITY OF BOZEMAN, et al., WAIVER OF APPEAL Defendants. Notice is hereby given that the parties have agreed to full and final resolution of the above-entitled action. The Court dismissed this matter with prejudice on March 26, 2019, and entered judgment in favor of Defendants on March 27, 2019. That judgment is final and shall remain final in all respects. Defendant City of Bozeman served and filed a notice of entry of judgment on March 28, 2019. Now, in exchange for valuable consideration as agreed between the parties,Plaintiffs agree to absolutely and irrevocably waive: (1) any right to post judgment relief available under the Montana Rules of Civil Procedure, any provision of Montana Code Annotated, or at common law; and(2) any right to appeal of any issue, order, or other aspect of the above-entitled action. The City enters into this agreement in the interest of finality and in order to timely proceed with construction of the Bozeman Public Safety Center. This matter is therefore fully and finally resolved. DATED this 18th day of April, 2019. Chris J. Gallus Attorneys for Plaintiffs Roger Koopman, Paul F. Johnson, and Does 1-5 Area Residents and Taxpayers Randy J. Cox Natasha Prinzing Jones John M.Newman Attorneys for Defendants City of Bozeman, Cyndy Andrus, City Commissioners, and John and Jane Doe 1-30 Public Employees/Officials -2 - CERTIFICATE OF SERVICE This is to certify that the foregoing was duly served by email and mail upon the following counsel of record at the address shown below on this 18th day of April, 2019. Scott M. Gratton Adam M. Shaw BROWN LAW FIRM, P.C. 269 W. Front Street, Suite A Missoula, MT 59802 sgratton@brownfinn.com ashaw@brownfirm.com Hon. Brenda R. Gilbert District Judge 414 East Callender Street Livingston, MT 59047 nmaccracken@mt.gov (email only) BOONE KARLBERG P.C. Tina Sunderland -3 - Chris J. Gallus Attorney at Law 1423 Otter Road Helena,MT 59602 Tel.: (406)459-8676 chrisjgalluslaw@gmail.com Attorneys for Plaintiffs Roger Koopman, Paul R Johnson, and Does 1-5 Area Residents and Taxpayers Randy J. Cox Natasha Prinzing Jones John M.Newman BOONE KARLBERG P.C. 201 West Main, Suite 300 P.O. Box 9199 Missoula,MT 59807-9199 Tel.: (406) 543-6646 Fax: (406)549-6804 reox@boonelcarlberg.com lipjones@boonelcarlberg.com jnewman@boonekarlberg.com Attorneys for Defendants City of Bozeman, Cyndy Andrus, City Commissioners, and John and Jane Doe 1-30 Public Employees/Officials MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT GALLATIN COUNTY ROGER KOOPMAN,et al. Cause No.DV-18-1166B Hon.Brenda R. Gilbert Plaintiffs, V. CITY OF BOZEMAN,et al. Defendants. ROGER KOOPMAN,et al. Cause No.DV-1 8-1215 C Hon.Brenda R. Gilbert Plaintiffs, V. JOINT NOTICE OF FINAL SETTLEMENT AND PLAINTIFFS' CITY OF BOZEMAN,et al., WAIVER OF APPEAL Defendants. Notice is hereby given that the parties have agreed to full and final resolution of the above-entitled action. The Court dismissed this matter with prejudice on March 26,2019, and entered judgment in favor of Defendants on March 27,2019. That judgment is final and shall remain final in all respects. Defendant City of Bozeman served and filed a notice of entry of judgment on March 28,2019. Now, in exchange for valuable consideration as agreed between the parties,Plaintiffs agree to absolutely and irrevocably waive; (1)any right to post judgment relief available under the Montana Mules of Civil Procedure,any provision of Montana Code Annotated,or at common law; and(2) any right to appeal of any issue, order,or other aspect of the above-entitled action. The City enters into this agreement in the interest of finality and in order to timely proceed with construction of the Bozeman Public Safety Center. This matter is therefore fully and finally resolved. DATED this lath day of April,2019. Chris J. Gallus Attorneys for Plaintiffs Roger Koopman, Paul F. Johnson, and Does 1-5 Area Residents and Taxpayers i i 4andy Cox Na riming Jones Jolui M.Newman s Attorne or Defendants City of Bozeman, yf f Cyndy Andrus, City Commissioners, and John and Jane Doe 1-30 Public Employees/Officials -2- i CERTIFICATE OF SERVICE This is to certify that the foregoing was duly served by email and mail upon the following counsel of record at the address shown below on this 18th day of April,2019. Scott M. Gratton Adam M. Shaw BROWN LAW FIRM,P,C. 269 W.Front Street,Suite A Missoula,MT 59802 sgratton@brownfirm.com ashaw@brownfum.com Hon. Brenda R. Gilbert District Judge 414 East Callender Street Livingston,MT 59047 = iimaer,rackeli@int.gov (email only) BOONS KARLBERG P.C. z Tina Sunderland i i i 3 jf 1 t a i i 1 -3-