SETTLEMENT AGREEMENT AND GENERAL RELEASE WHEREAS, WARE COUNTY, BY AND THROUGH THE BOARD OF COMMISSIONERS

Transcription

1 SETTLEMENT AGREEMENT AND GENERAL RELEASE GEORGIA, WARE COUNTY KNOW ALL MEN BY THESE PRESENTS: WHEREAS, WARE COUNTY, BY AND THROUGH THE BOARD OF COMMISSIONERS OF WARE COUNTY and NORTH AMERICAN METAL CO., LLC entered into an Agreement dated December 30, 2004 (the "NAMCo Agreement") for the occupancy, maintenance and operation of the Tri-County Landfill Site (as defined in the NAMCo Agreement) as a solid waste landfill; and WHEREAS, Ware County and North American Metal Company, LLC are defendants under those certain lawsuits styled as follows: 1. Anti-Landfill Corporation, Inc. v. The Ware County Board of Commissioners; Ware County Georgia; Commissioner Kathy E. Davis, in her official capacity; Commissioner Louis Herrin, in his official capacity; Commissioner Carlos Nelson, in his official capacity; Commissioner Joe Cornelius, III, in his official capacity; North American Metal Co, LLC; Waycross and Ware County Development Authority; Authority Member and Chairman Levon Shateen, in his official capacity; Authority Member John Hereford, in his official capacity; Authority Member Rees Gibson, in his official capacity; Authority Member Kathryn Smith, in her official capacity; Authority Member David Morton, in his official capacity; Authority Member Doug Lee, in his official capacity; Authority Member Dan Good, in his official capacity; Authority Member Neil Aspinwall, in his official 1

2 capacity; currently pending in the Superior Court of Ware County, State of Georgia, Civil Action 07V-0353; and 2. Administrative Action Office of State Administrative Hearings, Docket No GATTO: Anti-Landfill Corporation, Inc.; Satilla Riverwatch Alliance, Inc. d/b/a Satilla Riverkeeper; Randy Carter, Carlton Corbitt, John Summerlin, Horace Dewayne Tuten, Tony Allan Otts, James Holton Chancey, John Luis Chancey, Louise Minshew, Dustin Brooks Carter v. Carol Couch, Director of Environmental Protection Division, Ware County, Georgia, and NAMCO (Ware County and NAMCO were Intervenors). WHEREAS, Ware County desires to terminate the NAMCo Agreement, and Ware County desires to settle all claims with North American Metal Company, LLC under the NAMCo Agreement on the terms and conditions specified herein, the following Settlement Agreement and General Release is entered into: 1. General Release and Payment FOR VALUE RECEIVED, the undersigned, NORTH AMERICAN METAL CO., LLC (on behalf of itself, all parent companies and subsidiaries, associations, or partnerships; and their current and former members, managers, officers, directors, employees, present and former agents, servants, successors and assigns, collectively, Releasor ), FOR AND IN CONSIDERATION FOR PAYMENT IN FULL OF THE AMOUNTS set out in Paragraph 2 entitled CONSIDERATION as well as the General Release that is being given by the Releasees (as defined below) to the Releasor (as defined below) on today's date (the "Ware County General Release"), does hereby remit, release and forever discharge WARE COUNTY AND THE BOARD OF COMMISSIONERS OF 2

3 WARE COUNTY, GEORGIA, including, but not limited to, their present and former agents, servants, employees, elected officials, appointed officials, predecessors, officers, successors and assigns, administrators, attorneys, and all other persons, firms, corporations, associations, or partnerships, (hereinafter alternatively and collectively known as Releasees ) of and from any and all claims, actions, suits, debts, dues, sums of money, accounts, damages, judgments, causes of actions, reckonings, convents, contracts, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise, which the undersigned ever had, now has, or which, their future successors and assigns, hereinafter can, shall or may have, from the beginning of the world to this day, do hereby satisfy and settle all claims of any kind or nature and do hereby release, acquit, and forever discharge Releasees, as provided herein. It is expressly understood and agreed by the undersigned that this General Release shall encompass all claims and demands whatsoever that were or could have been asserted against Releasees at law or in equity, for, upon, arising from or by reason of any damages, loss, or injury, whether known or unknown, which may be traced either directly or indirectly to the NAMCo Agreement in any way which is referenced above, or for any alleged breach of any kind of same, as now appearing or as may appear at any time in the future, no matter how remotely they may be related to the aforesaid Agreement or said alleged breach. Releasor expressly releases any claims they may now have, may have had or may arise in the future against the Releasees, whether known or unknown, mature, liquidated, or contingent, by reason of any cause or thing from the beginning of the world to the date of these presents. It is understood and agreed that this is a full and final release of all claims of every nature and kind whatsoever, and releases all claims which are known and unknown, suspected and unsuspected, and that 3

4 this release is fully understood and voluntarily accepted for the purposes of making a full and final settlement of any and all claims, disputed or otherwise, which Releasor has, may, or could have against the Releasees. This General Release is executed with the full knowledge and understanding that there may be more serious consequences, damages or injuries, or separate or distinct consequences, damages or injuries which are not now known, and the consideration flowing to the undersigned in connection with this Agreement is accepted as final payment thereto. This General Release is given without reliance upon any statements or representations of the party or parties hereby released, or their representatives. Notwithstanding the foregoing, in the event the Releasees pay the consideration required by paragraph 2, but all or any part of such amount is later repaid by the Releasor pursuant to judicial or administrative order, this General Release shall be null and void, and the parties shall stand in the same shoes as before the General Release and thus be permitted to bring all claims and raise all defenses as if this Agreement had never been reached, provided Releasor returns in full all monies paid by Releasee in consideration for this settlement. If by judicial or administrative order, the Releasor is only required to repay part of the settlement proceeds, the General Release shall remain valid and in effect until such time as the balance of the settlement proceeds are returned to Releasee. Releasor shall have sixty (60) days after the entry of any judicial or administrative order requiring partial repayment of funds to Releasee to refund said monies and the failure to do so shall be absolute and irrefutable proof of their intent to accept the remaining proceeds as full and final settlement of all claims. In this event, the General Release shall therefore be fully enforceable and an absolute defense by 4

5 Releasee against any and all subsequent claims which may be raised by Releasor. 2. Consideration At the time of this settlement, Releasees are actively trying to locate a buyer for the Tri-County property which is the subject of the NAMCo Agreement. It is understood that should a buyer be found within a prescribed period of time, it will have an effect on the total amount of money paid by Releasees to effectuate this full and final settlement. The parties have thus reached the following understanding regarding the consideration to paid in connection with this settlement: a. In the event that Releasees pay a lump sum payment to Releasor of $750,000 at the time of settlement, should Releasees within one year (364 days) from the execution of this document by Releasor, sell the Tri-County property to another entity for any sum whatsoever, Releasees shall pay Releasor an additional $250,000 for a total settlement of $1,000, If no sale is effectuated by Releasees within one year from the execution of this document by Releasor, Releasees shall have no further obligation to Releasor under this agreement and the total settlement amount shall be limited to $750,000, irrespective of whether Releasees sell the Tri-County property after the one year period of time expires. b. In lieu of a lump sum payment at the time of settlement, Releasor has agreed to accept payments from Releasees totaling the amount of $750,000. The payments shall be governed by the terms and schedule set out at Paragraph 1 For purposes of further defining what constitutes a sale as provided for in Sections 2(a), 2(b) and 2(c), Releasee shall be required to pay two hundred and fifty thousand dollars and no cent ($250,000.00) if it enters into a Purchase/Sale Agreement for the property and thereafter in fact closes said transaction, no matter if the closing occurs outside the one (1) year time 5

6 2(c) below. In the event that Releasees elect to make payments to Releasor to effectuate this settlement, should Releasees within one year (364 days) from the date of the last payment to Releasor, sell the Tri-County property to another entity for any sum whatsoever, Releasees shall pay Releasor an additional $250,000 for a total settlement of $1,000,000. If no sale is effectuated by Releasees within one year from the final payment to Releasor, Releasees shall have no further obligation to Releasor under this agreement and the total settlement amount shall be limited to $750,000, irrespective of whether Releasees sell the Tri-County property after the one year period of time expires. c. In the event Releasees elect to make payments over time to settle this matter, Releasees agree to make three payments to Releasor as set out below: 1., 2011 $250,000 2., 2012 $250,000 3., 2012 $250,000 TOTAL $750,000 The above payments shall be subject to three percent (3%) interest accrued annually from the effective date of this Agreement to the date of payment. Should Releasees fail to make their payment on any prescribed date, Releasor shall notify Releasees in writing via Certified Mail of said delinquency. Upon notice of delinquency and demand for payment by Releasor, Releasees shall have 15 days from said notice to make the due payment or thereafter may be considered in default, giving Releasor the right to take immediate legal action to enforce the terms of this settlement. Nothing shall prevent Releasees from making any or all payments before the frame. Releasees shall not pay interest on the $250, payment, should the 6

7 scheduled date(s). If Releasees make early payments which total $750,000, and within one year (364 days) from the date of the last payment, sell the Tri-County property to another entity for any sum whatsoever, Releasees shall pay Releasor an additional $250,000 for a total settlement of $1,000,000. If no sale is effectuated by Releasees within one year from the date of the last payment, Releasees shall have no further obligation to Releasor under this agreement and the total settlement amount shall be limited to $750,000, irrespective of whether Releasees sell the Tri-County property after the one year period of time expires. 3. Releasor s Representations and Relinquishment of Title Through the execution of this Release and in exchange for the consideration set out above, Releasor expressly releases any claim to the title of the property referenced in the NAMCo Agreement, whether contractual or otherwise, and shall take any necessary steps to convey the same to Releasees, if necessary. Releasor also promises that, in the event it is alleged or determined that this General Release does not completely relinquish all Releasor s claim to the property, legal, equitable or otherwise, Releasor will take any affirmative steps necessary to relinquish, at written request of Releasees, any rights to title and to accomplish any necessary transfer of any remaining rights to Releasees (in such event, Releasees shall pay Releasor s out-of-pocket expenses in connection with the requested steps). By the execution of this document and in exchange for the consideration set out above, Releasor further expressly warrants that it will not take any steps to impede the transfer of the referenced property from Releasees to any other entity. Releasor also expressly warrants and represents that neither it nor any of its parent companies, subsidiaries, managers, provisions of Section 2(a), 2(b) or 2(c) become effectual. 7

8 officers, or directors have any present intent to purchase or acquire the property at issue which is described and referenced in the NAMCo Agreement. Releasor also warrants that it is in no way affiliated with, nor does it have a legal or equitable interest in GEG Waycross, Inc. Likewise, it will take no steps in the future to directly or indirectly dump or deposit in the landfill at issue, fly ash, as it may appear in any of its forms, which includes any type of fine particulate ash sent up by the combustion of a solid fuel, such as coal, and discharged as an airborne emission or recovered as a byproduct for various commercial uses. 4. Transfer of Professional Work Product and Permits Releasor procured certain professional services and may be the owner and possessor of certain professional work product produced in connection with the above referenced NAMCo Agreement. Releasor agrees to quitclaim, transfer, assign and convey unto Releasees, without recourse or warranty, all of Releasor s right, title, interest and claim in and to the work product of any professional services (except attorney work product) obtained with regard to the above referenced NAMCo Agreement, with regard to the preparation or advancing of the project referenced in that Agreement, or in any way concerning the property referenced in that Agreement, contained on the list attached hereto as Exhibit "A." Exhibit "A" is intended to include the engineering work product, plans or drawings, surveying work product plans or drawings, environmental studies, wetland studies, rail alignment engineering plans or drawings, Georgia Department of Transportation studies and permits, Atlantic Coast Consulting Inc. design plans and drawings including Rail Road Crossing Encroachment drawings, plans, and Agreements which relate to the NAMCo Agreement and Permit Nos D (MSWC) and R, Atlantic Coast Consulting Inc. Design and Operation Plans, solid waste permits and any other permit or study obtained by NAMCo in connection with the NAMCo Agreement. If the 8

9 parties identify other documents not included in Exhibit "A" that meet the preceding parameters, on written notice from Releasees, Releasor agrees to provide a copy of the requested document within 30 days of receipt of the request, and Releasor further agrees to quitclaim, transfer, assign and convey unto Releasees, without recourse, all of Releasor s right, title, interest and claim in the additional document subject to the same terms as the other documents described in Exhibit "A." If Releasor does not have title to the above referenced professionals work product, Releasor agrees to take any reasonable steps requested in writing by Releasees that may help Releasor to obtain title to the referenced work product and deliver same to Releasees in exchange for the consideration as set out above. In such an event, Releasees shall pay Releasor s out-of-pocket expenses in connection with the requested steps. To the extent transferable, Releasor further agrees to transfer all permits obtained with regard to the above referenced NAMCo Agreement, with regard to the preparation or advancing of the project referenced in that Agreement, or in any way concerning the property referenced in that Agreement to Releasees as soon as possible, but in no event later than sixty (60) days after the execution of this agreement. Releasor consents to Releasees utilization of any and all such transferred permits just as they could have been utilized in the possession of Releasor. 5. No Admission of Liability The undersigned understands and agrees that this settlement is in full compromise of disputed claims, both as to questions of liability and as to the nature and extent of injuries and damages; that payment hereunder is not to be construed as an admission of breach or liability by any party, defendant, person or entity released hereunder; and that said Releasees deny liability and intend merely to avoid litigation and buy their peace. This 9

10 Settlement Agreement and General Release in no way prejudices the rights of Releasees to deny liability in any suit based upon said occurrence. 6. No Reliance on Representations by Released Parties IT IS UNDERSTOOD AND AGREED that this Settlement Agreement and General Release is executed by the undersigned voluntarily, based solely on their own judgment and is not based on any representation or statements of any kind made by Releasees or Releasor or any of them as to the merits, legal liabilities or value of the claims or potential claims of the undersigned, and that no promise or agreement not herein expressed has been made to the undersigned. 7. Expenses, Cost, Fees, Professional Services and Attorneys Fees In further consideration of the payment made hereunder, the undersigned agrees that they shall bear all their professional services costs, attorneys' fees, as well as costs and expenses of any kind whatsoever which relate to the NAMCo Agreement in any way including, but not limited to, expenses and costs of any kind in connection with: (a) the negotiations of and procurement of the NAMCo Agreement; (b) the advancement of and efforts to proceed with the development of the property pursuant to the NAMCo Agreement; (c) the cost to defend the above referenced lawsuit; (d) all other attorney fees, professional service fees and any other cost or expense whatsoever incurred the matters and documents referred to herein; and, (e) all related matters. 10 No claim for costs or attorneys' fees shall be made by the undersigned or their attorneys against any party as a result of the compromise of the claims of the undersigned, such claims being expressly waived by the undersigned and their attorneys. 8. Dismissal of Releasor and Releasees Further, for the consideration paid hereunder, the undersigned hereby agrees to take all reasonable steps to assist Releasor and

11 Releasees in obtaining a Dismissal of all claims raised by Plaintiff s in the above referenced litigation. 9. Warranty of Capacity of Execute Agreement As part of the consideration for the conditions of the settlement as set forth above, the undersigned expressly warrants and represents to the other party that: (a) they are legally competent to execute this Agreement; and (b) they have not assigned, pledged, or otherwise in any manner whatsoever sold or transferred, either by instrument in writing or otherwise, any claim, cause of action, or other legal right of whatsoever kind and nature, which they have or may have by reason of the NAMCo Agreement or any matters arising out of or relating thereto. 10. Governing Law This General Release shall be construed and interpreted in accordance with the laws of the State of Georgia. If any sentence, phrase, provision, portion, or clause of this General Release should at any time be declared or adjudged invalid, unlawful, unconstitutional, or unenforceable for any reason, said adjudication or declaration shall in no manner or way affect the other sentences, phrases, provisions, portions, or clauses hereof, and all remaining portions shall remain in full force and effect as if the portion adjudged or declared invalid was not originally a part hereof. 11. Entire Agreement and Successors in Interest This document contains the entire agreement among the parties with regard to the matters set forth herein and shall be binding upon and inure to the benefit of the directors, officers, employees, successors and assigns of each. No other promises or agreements have been made to procure this compromise settlement. The terms of this document are contractual and not mere recitals. Providing all consideration required by paragraph 2 is paid by Releasees, this agreement constitutes an accord and satisfaction of 11

12 all claims the undersigned may have against any party released by this agreement arising from or in any way related to the NAMCo Agreement or an alleged breach thereof. Notwithstanding the foregoing, the Ware County General Release is incorporated into this agreement, and a material term hereof and a condition precedent hereto. 12. Representation of Comprehension of Documents In entering into this agreement, the undersigned represents that they have relied upon the legal advice of their attorneys, who are the attorneys of their choice; that the terms of this agreement have been completely read and explained to them by their attorneys; and that those terms are fully understood and voluntarily accepted by them. THE UNDERSIGNED HAS READ THE FOREGOING RELEASE, FULLY UNDERSTANDS IT, AND SIGNS IT VOLUNTARILY. WITNESS MY HAND AND SEAL this day of, NORTH AMERICAN METAL CO., LLC STATE OF FLORIDA COUNTY OF DUVAL By: Name: Title: The foregoing instrument was acknowledged before me this day of, 2011, by, as of North American Metal Co, LLC, a Florida limited liability company, on behalf of the corporation, who is personally known to me or has produced as identification. 12

13 By: Name:, Notary Public State of Florida at Large My Commission Expires: (NOTARIAL SEAL) WARE COUNTY BOARD OF COMMISSIONERS STATE OF GEORGIA COUNTY OF WARE 13 By: Name: Title: The foregoing instrument was acknowledged before me this day of, 2011, by, as of Ware County, by and through the Board of Commissioners of Ware County, who is personally known to me or has produced as identification. By: Name:, Notary Public State of Georgia at Large My Commission Expires: (NOTARIAL SEAL)