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HomeMy WebLinkAbout99- Babcock Place LP.; Babcock v. City of Bozeman, City Commission, Cook, Olsen, & 4K Partnership ~,. ;..... ~ SETTLEMENT AGREEMENT This Settlement Agreement made and entered into this 20th day of SeDtember, 1999, by and between Babcock Place Limited Partnership, a Montana limited partnership (hereinafter referred to as "Babcock") ; Bozeman City Commission, and the City of Bozeman, a political subdivision of the State of Montana (hereinafter referred to as "City of Bozeman"); and Gene Cook, Gary L. Cook, George E. Cook, Alice M. Cook, Walter L. Olsen, Susan S. Olsen and 4K Limited Partnership, a Montana limited partnership (hereinafter referred to as "Cook"). WIT N E SSE T H: WHEREAS, the parties to this Agreement are parties to that certain lawsuit captioned Babcock Place Limited Partnership v. Bozeman Citv Commission. City of Bozeman. Gene Cook. Garv L. Cook. Georqe E. Cook. Alice M. Cook. Walter L. Olsen, Susan S. Olsen and 4K Limited Partnership, Cause No. DV-96-238, Montana Eighteenth Judicial District Court, Gallatin County; and WHEREAS, the parties met before the Honorable Larry W. Moran as mediator on June 16, 1999, in an effort to mediate the remaining factual and legal issues among the parties; and WHEREAS, the parties have negotiated, in good faith, a resolution of the remaining 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 consideration 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, controversies or issues arising out of the pleadings filed by the respective parties in the above-captioned litigation. These issues include but are not limited to Babcock's claims of inverse condemnation, estoppel, spot zoning, takings claims under state or federal Constitutions, statutes or laws, and claims of invalidity of Ordinance No. 1422 of the City of Bozeman. Cook's potential claims include damages for the wrongful attempt to obtain an injunction by Babcock and the resulting delays arising from the imposition of such injunction. The City of Bozeman's claims include attorney's fees expended to defend itself and recoverable if judgment is entered in the favor of the City of Bozeman. Settlement negotiations were conducted before the Honorable Larry W. Moran on June 16, 1999. All parties were personally present, represented by respective members of a party and represented by respective counsel. The settlement negotiations 1 01": . .,!>. ,- resulted in a settlement, the terms of which are described in this Agreement. 2. Release of Claims. Upon mutual exchange of covenants and conditions herein and the change in legal positions of the various parties: a. Babcock for its heirs, representatives, successors and assigns forever releases the City of Bozeman and Cook from any and all claims, demands, judgments, including attorney's fees made in its pleadings contained in the above-captioned litigation. Further, Babcock releases Cook and the City of Bozeman from any and all claims, causes of action or potential liability arising out of any unclaimed, potential unknown or unforeseen claims which relate in any way to the facts described in the parties' pleadings. b. Cook for its heirs, representatives, successors and assigns forever releases the City of Bozeman and Babcock from any and all claims, demands, judgments, including attorney's fees made in its pleadings contained in the above-captioned litigation. Further, Cook releases the City of Bozeman and Babcock from any and all claims, causes of action or potential liability arising out of any unclaimed, potential unknown or unforeseen claims which relate in any way to the facts described in the parties' pleadings. c. City of Bozeman for its heirs, representatives, successors and assigns forever releases Babcock and Cook from any and all claims, demands, judgments, including attorney's fees made or could have been made in its pleadings contained in the above-captioned litigation. d. Specifically excluded from this release are any and all covenants, conditions, promises or requirements that have been imposed by the City of Bozeman as a condition for the development of the real property owned respectively by Cook or Babcock. It is the intention to release only those claims arising out of the facts described in the pleadings. It is not the intention to release or modify any of the terms, conditions or requirements of any planning or development process arising out of the development of Cook's and Babcock's respecti ve real property. The parties agree the only change to such development conditions is discussed in Paragraph 7 of this Agreement. e. Cook and Babcock shall sign releases in a form similar to forms prepared by the Montana Defense Counsels Association, which releases all parties from any and all known or unknown claims and contains an indemnity 2 .0' .~ . . . protecting the Releasees from any claims made by the Releasors arising out of the facts described in the pleadings in the above-captioned litigation. f. The Releases will apply to and benefit all employees, officers, agents, representatives and attorneys of the parties being released. 3. Dismissal of Suit. The parties shall on or before , 1999, 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 the these covenants and agreements are made and accepted as the consideration for full satisfaction and accord to compromise a disputed claim, and that neither the covenants and conditions by the parties nor the negotiations for settlement shall be considered as an admission of liability. 5. Neqative Covenant. The parties agree that neither Cook nor the City of Bozeman are liable or in any way responsible for the paYment of any cash to Babcock for settlement or otherwise. 6 . Installation of Sidewalk. Babcock shall, at its sole cost and expense, install a sidewalk in front of Lot 20 through 27 (being those lots on the southern boundary of Babcock Meadows Subdi vision) . Babcock shall have three (3) years from the date of this Agreement to complete said construction. If Babcock should fail to complete said construction by said date, the City may proceed in accordance with Commission Resolution 3245 adopted on the 15th day of June, 1998.Should Babcock seek final plat approval before its sidewalks are installed, Babcock shall sign an improvements agreement and post a bond in the amount of one and one-half times the estimated cost of installation. If the sidewalks are not installed within three years, such failure authorizes the City of Bozeman to proceed according to the improvements agreement to install the sidewalks utilizing the bond proceeds. 7. Amendment of Babcock Meadows Preliminary Approval No. 14- Traffic Study. Condition 14 of Babcock's preliminary plat approval for Phase II will be changed and Babcock as a condition of final plat approval must adhere and meet the following requirements: Prior to the approval of the 84th dwelling unit for construction in either phase of Babcock Meadows, the applicants shall demonstrate to the satisfaction of the City Engineers that capacity exists on West Babcock to maintain level of Service C with the inclusion of the projects related traffic, prior to final plat approval. 3 ...1iIr!. ,~.. . . . There will be submitted to the City of Bozeman by a competent professional traffic engineer a traffic study analyzing the potential impact of the additional living units approved by the City of Bozeman in the Amended Final Subdivision Plat and Amended Preliminary Subdivision Plat of a two phase, major subdivision for Babcock Meadows. Should the analysis or the City of Bozeman's review of the analysis result in a finding that the increase in traffic on Babcock from both Babcock's and Cook's developments will result in less than a Level C service, Babcock and Cook will phase and coordinate their construction and development plans so that a Level C service will be maintained. The City of Bozeman will analyze the coordinated construction schedule recognizing that the improvements to Babcock Street will be completed possibly before, and certainly during the completion of the final phases of Cook's and Babcock's projects. The parties agree that should a disagreement exist over the interpretation of the results of the coordinated efforts by Babcock/Cook in phasing the development and construction of their projects, the parties will return to mediation using Judge Moran as the mediator. Should Judge Moran be unable to mediate the disagreement, another mediator will be selected who is mutually satisfactory to all parties. 8. Pretrial Proceedinqs. Until the Stipulation for Dismissal is filed with the Court, all pretrial proceedings will be suspended. 9. Completion of Settlement Aqreement. The City of Bozeman shall have four weeks to review the traffic analysis discussed in Paragraph 7. Cook/Babcock shall then have four weeks to assess the City of Bozeman's analysis and develop a coordinated development and construction schedule as described in Paragraph 7. It is anticipated that all parties will review the traffic study in good faith recognizing the benefits of resolving the above-captioned litigation. Babcock shall obtain the written consent of all applicants to the changes discussed in Paragraph Nos. 6, 7 and 9. 10. Governinq Law. It is agreed that this Agreement shall be governed by, construed, and enforced in accordance with the laws of the 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. 11. Entire Aqreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding 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 herewith. 4 '"". ~ ."'" , , - 12. Wai ver . Any forbearance, failure or delay by any party to this Agreement in exercising any right, power or remedy hereunder shall not be deemed to be a waiver or such right, power or remedy and any single or partial exercise of any right, power or remedy hereunder 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 instrument in writing. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. 13. 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. BABCOCK: Partner mited Partnership CITY OF BOZEMAN: I t ~- - -1 - Clark Johnson City Manager COOK: g~ jJ~ Gene Cook, for and on behalf of Gene Cook, Gary L. Cook, George E. Cook, Alice M. Cook, Walter L. Olsen, Susan S. Olsen and 4K Limited Partnership 5