|
July 26, 2004 Page 571
<br />
<br />THE CITY OF CONCORD, a municipal )
<br />corporation; THE COUNTY OF CABARRUS, )
<br />a political subdivision of the State )
<br />of North Carolina; and CABARRUS WATER )
<br />AND SEWER DISTRICT, a municipal )
<br />corporation, )
<br /> Defendants,
<br />
<br />AGREEMENT IN PARTIAL SETTLEMENT AND COMPROMISE OF LITIGATION
<br />
<br /> Pursuant to G.S. 7A-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 has not been completed by all parties on all issues, the
<br />parties have reached agreement on some of the issues as set 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 />mediation 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 />A0
<br />
<br />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 />declaratory, 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 damages (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 expressly 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 />incurred to comply with any of the provisions of this Agreement
<br />(including without limitation the costs of complying with the
<br />Supplemental Development Standards set forth in paragraph (D), or (ii)
<br />any amounts paid to Cabarrus County for school impact fees.
<br />
<br />Co
<br />
<br />Do
<br />
<br />Eo
<br />
<br />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 />$1,500,000.00 in the aggregate.
<br />
<br />No Admission 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
<br />shall be deemed to be an admission of liability or non-liability on the
<br />part of any party to the agreement.
<br />
<br />General Development Standards Applicable to the Morrison Creek
<br />Subdivision. Except as otherwise provided herein, the Morrison Creek
<br />Subdivision will be governed by and developed pursuant to the
<br />development standards and procedures contained in the ordinances of
<br />Cabarrus County and in applicable statutes and regulations of the State
<br />of North Carolina as they existed on April 16, 2004.
<br />
<br />Supplemental Development Standards Applicable to Morrison Creek
<br />Subdivision. Plaintiffs agree that all plans, plats, permit
<br />applications, construction drawings, and other submissions by them for
<br />
<br />
<br />
|