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July 26, 2004
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<br />Page 567
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<br /> SMALL, in his capacity as Concord City
<br /> Council Member; ALFRED M. BROWN, JR.
<br /> in his capacity as Concord City Council
<br /> Member; W. LA~ BARRIER, in his
<br /> capacity as Concord City Council Member;
<br /> HECTOR R. HENRy II, in his capacity as
<br /> Concord City Council Member; R~Y
<br /> GRIMES, in hie capacity as Concord
<br /> City Council Mead)er; THE COUI~
<br /> OF C~US, a political subdivision
<br /> of the State of North Carolina; and
<br /> WATER ~ SEWER DISTRICT OF CAB~uRRUS
<br /> COUP, a municipal corl0oration,
<br /> Defendants,
<br />
<br /> AGREEMENT IN PARTIAL SE~LEMENT AND COMPROMISE OF LITIC~TION
<br />
<br /> Pursuant to ~.S. ?A-38.1, the parties and their representatives
<br /> attended court ordered mediated settlement conferences. The mediator
<br /> designator by the parties was Judge Robert A. Collier, Jr. of Iredell County.
<br /> Though mediation ha8 not been completed by all parties on all issues, the
<br /> parties have reached agreement on some of the issues as eet forth herein.
<br />
<br /> In consideration of the mutual promises herein and other good and
<br /> valuable consideration, the receipt and sufficiency of which is hereby
<br /> acknowledged, and with the intention of binding themselves, their heirs,
<br /> legal representatives, and assigns, the parties have agreed, following a
<br /> mediat~on conducted in this action, to resolve Plaintiffs, claims for
<br /> declaratory, equitable, and injunctive relief in this action on the terms
<br /> hereinafter set forth. The parties agree that, except as otherwise
<br /> specifically provided herein, the terms of this mediation agreement shall be
<br /> embodied in an appropriate Consent Order, which shall be enforceable as an
<br /> order of the Court, and that the Court having Jurisdiction over this action
<br /> shall thereafter resolve all disputes concerning the performance or breach of
<br /> the parties, obligations under this agreement and the Consent Order.
<br />
<br /> A. Disposition of Claims. This mediation agreement shall constitute a
<br /> full and Complete resolution and settlement of all of Plaintiffs'
<br /> claims in this action but only to the extent such claims seek
<br /> declaratoz%,, injunctive, or other equitable relief against Defendants.
<br /> The parties acknowledge and agree that the action shall proceed solely
<br /> with respect to Plaintiffs, claims for damages against the City of
<br /> Concord. Concord and the Plaintiffs specifically acknowledge that in
<br /> the event Plaintiffs are awarded damages in their action against
<br /> Concord, neither the Plaintiffs or Concord, nor any party claiming by
<br /> or through the Plaintiffs or Concord, will be entitled to seek
<br /> contribution or reimbursement for such damage (or any other monetary
<br /> sums attributable to such action) from the County of Cabarrus or The
<br /> Cabarrus County Water and Sewer District. It is exq;ressly understood,
<br /> however, that in connection with the litigation of Plaintiffs' claims
<br /> for damages the parties shall be entitled to prove such facts and rely
<br /> upon such legal theories as they deem necessary to establish or to
<br /> defeat such claims for damages, notwithstanding that such facts or
<br /> legal theories might also be relevant to the settled claims for
<br /> declaratory, injunctive, and equitable relief that are the subject of
<br /> this mediation agreement. Notwithstanding the foregoing, Plaintiffs
<br /> shall not be allowed to claim as damages (i) any amounts paid or costs
<br /> incurre~ to comply with any of the provisions of this Agreement
<br /> (including without limitation the coots of complying with the
<br /> Supplemental Development Standards set forth in paragraph D), or (ii)
<br /> any amounts paid to Cabarru8 County for school impact fees.
<br />
<br />B. Limit on Award of Damages. Notwithstanding any Jury verdict, court-
<br /> ordered award, or judgment awarding some greater amount, Concord's
<br /> liability to Plaintiffs for damages, if any, shall not exceed
<br /> $739,742.00 in the aggregate.
<br />
<br />C. No Admissiou of Liability or Non-Liability. The parties understand and
<br /> agree that this mediation agreement represents a compromise of disputed
<br /> claims. Neither this agreement nor any provision contained herein shall
<br /> be deemed to be an admission of liability or non-liability on the part
<br /> of any party to the agreement.
<br />
<br />D. ~eneral Development Standards Applicable to Brm~on Ridqe Subdivisiom
<br /> and Park Place Subdivision. Except as otherwise provided herein,
<br /> Brandon Ridge Subdivision and Park Place Subdivision will be governed
<br />
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