Loading...
HomeMy WebLinkAboutAUGUSTA VIDEO SETTLEMENT AGREEMENT IN AMOUNT OF $550,000.00SETTLEMENT AGREEMENT COME NOW, the Plaintiff, AUGUSTA VIDEO, INC. (hereinafter referred to as "PLAINTIFF "), and the Defendants, AUGUSTA, GEORGIA, a political subdivision of the State of Georgia, and the AUGUSTA- RICHMOND COUNTY COMMISSION (hereinafter referred to as "AUGUSTA ") and agree as follows: WHEREAS, PLAINTIFF initiated the Federal litigation in the case of August Video Inc v. Augusta Georgia and the Augusta- Richmond County Commission CV 102 -94 (S.D. Ga.) and companion litigation captioned Augusta Video. Inc. v. Augusta, Ga_ CV 108- 099 (S.D. Ga.) for the purpose of asserting various constitutional challenges against the Augusta Adult Entertainment Ordinance, as amended, and the enforcement of those Ordinances; and WHEREAS. PLAINTIFF claims that it has suffered monetary damages as a result of the infringement of its constitutional rights by AUGUSTA; and WHEREAS, AUGUSTA asserts that the challenged ordinances are constitutional and may be enforced and applied against the Plaintiff in accordance with their terms; and WHEREAS. AUGUSTA asserts that PLAINTIFF has not been damaged as a result of any constitutional violations or that such damages are far less than those claimed by PLAINTIFF in this litigation; and WHEREAS, the parties acknowledge that the outcome of litigation is uncertain while settlement of disputes creates certainty for both parties while avoiding the significant burden and expense of litigation; WHEREAS, all parties wish to resolve these cases without giving up, reducing, or admitting their own claims or defenses, or receding from their positions; now therefore PLAINTIFF and AUGUSTA agree as follows: 1. The parties agree that the relief afforded by this Settlement shall not be construed as a concession by AUGUSTA that it violated any of Plaintiff's constitutional rights or committed any act of wrongdoing, it being acknowledged that AUGUSTA specifically denies any such violations or wrongful acts. 2. The AUGUSTA - RICHMOND COUNTY COMMISSION has reconsidered the PLAINTIFF's application for an Adult Entertainment Permit, filed on or about May 8, 2008, as well as the appeal of the denial of that Permit heard on or about June 17, 2008 Following that reconsideration, AUGUSTA will take the following actions: A. Upon payment of the regulatory fee of $2,750.00 and approval of this Settlement by the AUGUSTA COMMISSION, the Augusta Licensing Director shall issue an Adult Entertainment Permit to PLAINTIFF. That permit will be hand- delivered to Plaintiff's attorney, WILLIAM J. SUSSMAN, at 347 Greene Street, Augusta, Georgia. B. Upon application for a Business Tax Certificate and payment of the estimated . business tax by PLAINTIFF, the Augusta Licensing Director shall issue a Business Tax Certificate to PLAINTIFF. That Certificate shall be valid until December 31 2010, when PLAINTIFF shall be entitled to renew the said Certificate, on an annual basis, in the ordinary course, as provided in Title 2 the Augusta Code of Ordinances. PLAINTIFF shall be authorized to open its adult business at 1367 Gordon Highway, Augusta, Richmond County, Georgia immediately upon payment of the said business tax. 3. Within fifteen (15) days of the approval of this Agreement by the AUGUSTA Commission, AUGUSTA shall pay to PLAINTIFF the sum of FIVE HUNDRED FIFTY Page 2 of 5 THOUSAND and 00 /100 U.S. DOLLARS ($550,000.00) in satisfaction of all claims by PLAINTIFF. The aforesaid sum shall be payable to "GARY S. EDINGER & ASSOCIATES, P.A. TRUST ACCOUNT ", and shall be tendered c/o Gary S. Edinger, Esquire, 305 N.F.1 st Street, Gainesville, Florida 32601. 4. PLAINTIFF shall be entitled to no relief under the above- described Federal proceedings other than as provided by this Agreement. PLAINTIFF hereby acknowledges that the stated consideration set forth in this Agreement is full compensation for and on account of any and all injuries and damages of any kind whatsoever which it claimed or alleged were sustained or could have claimed or alleged to have been sustained, including attorney's fees and the costs of this litigation, and the satisfaction of the Judgment for Plaintiff entered in the case of Augusta Video, Inc v. Augusta, Georgia and the Augusta- Richmond County Commission CV 102 -94 (S.D. Ga.). 5. Except as otherwise specifically provided above, each party shall bear their own attorney's fees and costs in the above - captioned proceedings. 6. Both parties shall move the Court to adopt the terms of this Agreement in a Consent Order, in a form substantially identical to the attached Exhibit "A ", which Order will provide for the dismissal of this action with prejudice. 7. Upon the issuance of the required Adult Entertainment Permit and Business Tax Certificate and payment of the aforesaid sums, PLAINTIFF shall dismiss with prejudice the appeal currently pending in the Eleventh Circuit Court of Appeals, Case No.: 10- 10545- E. 8. Upon the issuance of the required Adult Entertainment Permit and Business Tax Certificate and payment of the aforesaid sums, PLAINTIFF shall dismiss with prejudice Page 3 of 5 the action -currently pending in District Court for the Southern District of Georgia in Case No.: CV -108 -099. The parties agree that each parry shall bear their own costs and attorney's fees in that District Court action. 9. Contingent only upon issuance of the required Adult Entertainment Permit and Business Tax Certificate and payment of the aforesaid sums, PLAINTIFF hereby releases and discharges AUGUSTA its agencies, boards, departments, authorities, employees, attorneys representatives, and agents, from any claims, demands, damages, lawsuits, obligations, promises, administrative actions, charges, and causes of action, in law or in equity, of any kind whatsoever, relating to or arising out of the complaints filed in Case No.: CV 102 -94 or in Case No.: CV- 108 -099, and the Judgment entered in Case No.: CV 102 -94. This Waiver and Release covers any causes of action or claims under The Civil Rights Act of 1991; Section 1981 and 1983 of the Civil Rights Act of 1866, as amended; claims under the Constitutions of the United States and Georgia, and claims under any other federal or state law or municipal ordinance, including any lawsuits founded in tort (including negligence), contract (oral, written or implied), or any other common law or equitable basis of action. 10. This Agreement shall constitute the sole and entire agreement of the parties and neither party shall rely on any oral or written representations other than those set forth in this agreement. The covenants herein contained shall bind and the benefits and advantages herein agreed to shall inure to the parties' respective heirs, executors, administrators, successors, and assigns. Page 4 of 5 AUGUSTA VIDEO, INC. AUGUSTA, GEORGIA and the AUGUSTA- RICHMOND COUNTY COMMISSION BY: BY: EVGUENI SO LIAGUINE, President Attest: Clerk Duly adopted by the 70rZy - Richmond County Commission this of May, 2010. Page 5 of 5