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HomeMy WebLinkAboutProposed Settlement Agreement, Draft 1 SETTLEMENT AGREEMENT This Settlement Agreement made and entered into on September _____, 2012, by and between Montana Fair Housing, Inc. (hereinafter referred to as "MFH"), the City of Bozeman, Andy Epple, and Vicki Hasler (hereinafter referred to as "Bozeman"), and Hinesley Family Partnership No. 1, Hinesley Development, and Charles W. Hinesley (hereinafter referred to as "Hinesley"). RECITALS: WHEREAS, MFH filed a Complaint against Bozeman and Hinesley on December 10, 2009, in the United States District Court for the District of Montana, Butte Division, being designated Cause No. CV-09-90-BU-RFC-COS; and WHEREAS, Bozeman filed its Answer to the Complaint on January 15, 2010; and WHEREAS, Hinesley filed an Answer to the Complaint on February 22, 2010, together with a Cross-claim against Bozeman; and WHEREAS, Bozeman filed an Answer to the Hinesley Cross-claim on March 29, 2010; and WHEREAS, Hinesley Family Limited Partnership No. 1 filed for relief under Chapter 11 of the United States Bankruptcy Code on July 29, 2010; and WHEREAS, MFH and Hinesley entered into a Settlement Agreement on February 22, 2011, which included an agreement to file a joint motion for entry of consent decree; and 2 WHEREAS, a Consent Order was entered in the United States District Court for the District of Montana, Butte Division, on March 1, 2011; and WHEREAS, MFH, Bozeman, and Hinesley have reached an agreement to settle all claims and cross-claims in Cause No. CV-00090-RFC-CSO, and to the entry of a consent decree. NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Settlement Agreement, the parties mutually promise and covenant as follows: 1. Dismissal With Prejudice. MFH, Bozeman, and Hinesley agree to file a joint motion requesting the Court’s order dismissing with prejudice all pending claims and cross-claims in Cause No. CV-00090-RFC-CSO, now pending in the Unites States District Court for the District of Montana, Butte Division. The Joint Motion for Dismissal With Prejudice and proposed Order of Dismissal With Prejudice are attached hereto as Exhibits A and B. 2. Release. In consideration of Bozeman’s promises and covenants contained in this Settlement Agreement, MFH fully and forever releases and discharges Bozeman, its agents, employees, and attorneys from any and all actions, claims, causes of action, demands for damages, including attorney’s fees and costs, whether asserted or unasserted, known or unknown, foreseen or unforeseen, and arising prior to the date of the execution of this Settlement Agreement in connection with Bozeman’s enforcement of the International Building Code, the Uniform Development Ordinance, or the adoption of the Uniform Development Ordinance prior to the date of this Settlement Agreement. This release is intended to be a full and final release of all claims that MFH 3 asserted or could have asserted against Bozeman in Cause No. CV-00090-RFC-CSO, now pending in the Unites States District Court for the District of Montana, Butte Division. In consideration of MFH’s promises and covenants contained in this Settlement Agreement, Bozeman fully and forever releases and discharges MFH and its agents, employees, and attorneys from any and all actions, claims, causes of action, demands for damages, including any claims for attorney’s fees and costs, whether asserted or unasserted, known or unknown, foreseen or unforeseen, arising out of or in any way connected with MFH’s filing and prosecution of Cause No. CV-00090-RFC-CSO, now pending in the United States District Court for the District of Montana, Butte Division. This release is intended to be a full and final release of all claims that Bozeman asserted or could have asserted against MFH in Cause No. CV-00090-RFC-CSO, now pending in the United States District Court for the District of Montana, Butte Division. In consideration of Bozeman’s promises and covenants contained in this Settlement Agreement, Hinesley fully and forever releases and discharges Bozeman and its agents, employees, and attorneys from any and all actions, claims, causes of action, demands for damages, including attorney’s fees and costs, whether asserted or unasserted, known or unknown, foreseen or unforeseen, arising out of or related in any way to Bozeman’s enforcement of the International Building Code, the Uniform Development Ordinance, and the adoption of the Uniform Development Ordinance, prior to the date of this Settlement Agreement. This release is intended to be a full and final release of all claims that Hinesley asserted or could have asserted in Cause No. CV- 4 00090-RFC-CSO, now pending in the United States District Court for the District of Montana, Butte Division. In consideration of Hinesley’s promises and covenants contained in this Settlement Agreement, Bozeman fully and forever releases and discharges Hinesley and its agents, employees, and attorneys from any and all actions, claims, causes of action, demands for damages, including any claims for attorney’s fees and costs, whether known or unknown, asserted or unasserted, foreseen or unforeseen, arising out of or in any way connected with Hinesley’s filing and prosecution of a cross-claim in Cause No. CV-00090-RFC-CSO, now pending in the United States District Court for the District of Montana, Butte Division. This release is intended to be a full and final release of all claims that Bozeman asserted or could have asserted against Hinesley in Cause No. CV-00090-RFC-CSO, now pending in the Unites States District Court for the District of Montana, Butte Division. 3. Payment. Bozeman agrees to pay to MFH the sum of $150,000.00. This payment will be tendered to MFH by Bozeman as payment for all damages, attorney’s fees, and costs claimed by MFH in Cause No. CV-00090-RFC-CSO, now pending in the Unites States District Court for the District of Montana, Butte Division. The check shall be made payable to "Montana Fair Housing, Inc." 4. Ordinance. Bozeman adopted Ordinance No. 1838 on September 10, 2012, with an effective date of October 10, 2012. Ordinance No. 1838 was adopted after consultation with MFH. MFH approved Ordinance No. 1838 prior to its adoption, indicating its belief that Ordinance No. 1838 complied with the Fair Housing Act, 42 USC § 3601, et seq., the Americans with Disabilities Act, 42 USC § 12101, et seq., § 5 504 of the Rehabilitation Act, 29 USC § 794, the Montana Human Rights Act, the Montana Code of Governmental Fair Practices, and the United States and Montana Constitutions. 5. Fair Housing Policy. Bozeman adopted a revised fair housing policy on August 27, 2012. Bozeman adopted the fair housing policy after consultation with MFH. MFH approved the fair housing policy prior to its adoption, indicating its belief that the policy complied with the Fair Housing Act, 42 USC § 3601, et seq., the Americans with Disabilities Act, 42 USC § 12101, et seq., § 504 of the Rehabilitation Act, 29 USC § 794, the Montana Human Rights Act, the Montana Code of Governmental Fair Practices, and the United States and Montana Constitutions. 6. Building Department Forms. Bozeman amended its building department forms, including Building Permit Application, Certificate of Occupancy, and Notice to Builders, on August ___, 2012. Bozeman amended its building department forms after consultation with MFH. MFH approved the forms prior to their amendment prior to their amendment, indicating its belief that the forms complied with the Fair Housing Act, 42 USC § 3601, et seq., the Americans with Disabilities Act, 42 USC § 12101, et seq., § 504 of the Rehabilitation Act, 29 USC § 794, the Montana Human Rights Act, the Montana Code of Governmental Fair Practices, and the United States and Montana Constitutions. 7. Notification of Future Violations. In the event MFH should become aware of any violation in the city of Bozeman of the Fair Housing Act, Americans with Disabilities Act, § 504 of the Rehabilitation Act, the Human Rights Act, or the Governmental Code of Fair Practices, prior to the issuance of a certificate of occupancy, 6 MFH shall promptly notify the Bozeman City Attorney of that violation. The notice shall be in writing and shall specify the address of the violation, the nature of the violation, and the legal basis for the violation. 8. Consent Decree. MFH, Bozeman, and Hinesley agree to the entry of a consent decree pursuant to the terms of this Settlement Agreement. A copy of the Consent Decree which will be presented to the Court is attached hereto as Exhibit C. 9. No Admission of Liability. MFH, Bozeman, and Hinesley acknowledge that the execution of this Settlement Agreement is to compromise disputed claims. MFH, Bozeman, and Hinesley agree that the execution of this Settlement Agreement, the payment made pursuant to the terms of this Settlement Agreement, and the actions taken pursuant to the terms of this Settlement Agreement, shall not be considered as an admission of liability by any party. 10. Disclaimer. MFH, Bozeman, and Hinesley represent that they have carefully read this Settlement Agreement, have discussed its legal effect with their counsel, understand the contents of the Settlement Agreement, and that they sign this Settlement Agreement of their own free will and accord. 11. Binding Effect. This Settlement Agreement shall be binding upon MFH, Bozeman, and Hinesley, together with their successors, assigns, agents, and employees. 12. Confidentiality. MFH, Bozeman, and Hinesley agree that this Settlement Agreement shall not be confidential. MONTANA FAIR HOUSING, INC. CITY OF BOZEMAN 7 By_________________________ By_________________________ City Manager ______________________________ ________________________________ Andy Epple Vicki Hasler HINESLEY FAMILY PARTNERSHIP NO. 1 HINESLEY DEVELOPMENT By________________________________ By______________________________ __________________________________ Charles W. Hinesley APPROVED BY: KELLY LAW OFFICE BERG, LILLY & TOLLEFSEN, P.C. By______________________ By__________________________ Timothy C. Kelly Michael J. Lilly Attorney for Montana Fair Attorneys for City of Bozeman, Housing, Inc. Andy Epple, and Vicki Hasler HOLLAND & HART LLP By____________________________ By__________________________ Robert L. Sterup Joseph V. Womak Attorneys for Hinesley Development Attorney for Hinesley Partnership and Charles W. Hinesley No. 1