HomeMy WebLinkAboutNORFOLK SOUTHERN RAILWAY COMPANY SETTLEMENT AND RELEASE AGREEMENTT
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SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (the "Settlement Agreement") is
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made thisl:j day Of~ ,2009, by and between Norfolk Southern Railway Company on
(Norfolk Southern"), CeH.tral of Georgia Railroad Company ("Central of Georgia") collectively
referred to herein as ''Norfolk Southern", and Augusta, Georgia a/k/a Augusta-Richmond
County, Georgia, a political subdivision of the State of Georgia ("Augusta");
WHEREAS, Augusta alleges that Norfolk Southern is a potentially responsible party in
connection with the Augusta Depot Site located at 501 Reynolds Street in Augusta, Richmond
County, Georgia (the "Site");
WHEREAS, Augusta has allegedly incurred costs in excess of $1.8 million dollars as a
result of its investigation, removal, remediation, cleanup and/or monitoring of the Site;
WHEREAS, Augusta alleges that Norfolk Southern is liable to it for all costs of
investigation, removal, remediation, and/or cleanup incurred by Augusta in connection with
enviromnental contamination at or about the Site, which allegation Norfolk Southern denies;
WHEREAS, Norfolk Southern alleges that Augusta as owner of the Site is also liable for
the costs,of investigation, removal, remediation or cleanup incurred and further alleges that the
costs incurred were excessive; and;
WHEREAS, without admitting any fact, responsibility, fault, or liability, and denying
same, the Parties to this Settlement Agreement have agreed to settle the disputes between them
as set forth herein;
NOW THEREFORE in consideration of the mutual undertakings of the Parties herein set
forth, they hereby agree as follows:
1. Mutual Release.
(a) Other' than the obligations set forth in this Settlement Agreement, which
obligations are not released, each party, by its duly authorized attorneys or officers or officials,
for itself and its agents, successors, and assigns, hereby releases, remises, and forever discharges
the other party, and all of its agents, affiliates, successors, parent and subsidiary companies, and
assigns, of and from all claims, damages, suits, actions, judgments, awards, liabilities, and causes
of action of every nature, known or unknown, arising now or in the future from or as a result of
any environmental contamination located on or about the Site or arising out of or relating to prior
operations on the Site.
(b) Augusta, for itself, its officials, commissioners, agents, personal representatives,
successors, and assigns, agrees that neither it nor any of them will institute, maintain, or
prosecute any action or suit at law or in equity in any forum against Norfolk Southern, or any of
its agents, servants, heirs, successors, personal representatives, employees, attorneys,
stockholders, officers, directors, businesses, subsidiaries, and parents for any claims, damages,
suits, losses, actions, demands, judgments, awards, liabilities, and causes of action that refer or
relate to the Site, or to any contamination at or about the Site, at any time, in any manner.
( c) This Settlement Agreement is not intended to, and does not, release from liability
any persons or entities other than those specifically referenced above in paragraphs lea) or 1(b)
above.
(d) Nothing set forth herein releases the Parties hereto, or any of them, from any or
all of their obligations set forth below, which obligations are not released or discharged in any
manner.
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2. Obligations.
(a) Within thirty (30) days of the date of execution of this Settlement Agreement by
all Parties, Norfolk Southern will pay to Augusta the sum of Seven Hundred Fifty Thousand
Dollars ($750,000.00).
(b) With respect to any and all costs, expenses, and/or liabilities to be incurred in
connection with any additional environmental investigation, testing, monitoring, sampling,
removal, remediation, and/or any other environmental costs and liabilities in connection with or
relating in any manner to the Site after the date of this Settlement Agreement, such costs,
expenses and/or liabilities will be borne entirely by Augusta.
(c) In the event that the Augusta Depot site is sold to a third party, the City shall
notify said third party of the following matters:
(i) Augusta has, by Ordinance now codified as Augusta Code 9 3-7-43,
prohibited the drilling of any wells within the limits of its Urban Services District unless the
same is permitted by Augusta and the Richmond County Health Department. Without such
permit, groundwater at and beneath the site can not be used for any purpose, including, but not
limited to, drinking water supplies, agricultural operations, irrigation of crops or vegetation,
cooling water and industrial or manufacturing operations.
(ii) Augusta has, by Ordinance now codified as Augusta Code ~ 8-1-43(j)(2),
regulated building in areas within Augusta's corporate limits which have historically been
subject to flooding. The Site is located in such an area historically subject to flooding and is
subj ect to the prohibition of construction of buildings with basements designed for human
occupancy by the terms of said Code section. Such areas can only be used for parking of
vehicles, limited storage of maintenance equipment and entry to the premises.
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(iii) Purchaser shall be advised that a visual inspection of the property is
required. Whether said inspection is actually conducted or not by purchaser or his/her/its
representatives, purchaser is deemed to have notice of the actual uses of properties abutting this
site at the time of closing, including the railroad operations of Norfolk Southern Railway on
Sixth Street adjacent to the site which may produce noise associated with railroad operations.
(d) The provisions of paragraphs 2 (c) (i, ii) are material terms of this Agreement,
without which Norfolk Southern would not enter into this Agreement. Augusta agrees,
represents, and warrants that it will diligently enforce the Code Sections referenced above to the
full extent of the law.
3. Notices.
Any and all notices required or permitted by this Settlement Agreement shall be sent by
facsimile and United States Certified Mail to the Parties as follows (which information may be
modified or supplemented by the Parties in the future in writing):
Original:
Karin Stamy, Esq.
General Attorney
NORFOLK SOUTHERN CORPORATION
Three Commercial Place
Norfolk, Virginia 23510
Facsimile: 757~629-2607
As to Augusta:
Original:
Mr. Fred Russell
Room 801
Augusta-Richmond County Municipal Building
530 Greene Street
Augusta, Georgia 30911
With a copy to:
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4. No Admission.
The Parties to this Settlement Agreement agree: (a) that neither this Settlement
Agreement nor any of the consideration flowing under the terms hereof shall be construed as an
admission of any fault, culpability, or liability on the part of the Parties hereto, their officers,
directors, employees, parents, subsidiaries, attorneys, and agents, past or present in connection
with the Action, the Site, or otherwise; (b) that this Settlement Agreement is made for the
purpose of avoiding expensive and time-consuming litigation; and (c) that all consideration
flowing hereunder is compensatory in nature and not penal.
5. Complete Understanding And Modification.
This Settlement Agreement constitutes the entire agreement between the Parties, there
being no other agreement between them relating in any fashion to the matters herein set forth.
This Settlement Agreement may not be modified or amended except in a writing signed by the
Parties. This Settlement Agreement shall bind and inure to the benefit of the Parties and to their
respective successors, and assigns.
6. Further Assurances.
(a) The Parties acknowledge that, In executing this Settlement Agreement, they
carefully reviewed or had the opportunity to review the terms of this Settlement Agreement with
counsel of their choice and are fully aware of the extent of their rights and obligations hereunder.
The Parties further agree that the language of this Settlement Agreement shall not be construed
presumptively against any of the Parties to this Settlement Agreement.
(b) The Parties to this Settlement Agreement warrant that they have not assigned,
sold, alienated, transferred or hypothecated any claims, demands, awards, damages, judgments,
suits, losses, rights to sue or seek redress, liabilities or causes of action, in law or in equity,
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known or unknown, fixed or contingent, pending or not pending, liquidated or unliquidated, that
they ever had, now have, or hereafter have against one another (or anyone else), relating or
pertaining to, or arising out of; either directly or indirectly, the Site or any other matters
addressed herein.
(c) Each party to this Settlement Agreement warrants that he has full and complete
authority to enter into this Agreement and each person executing this Agreement in behalf of the
party warrants and represents that he has been fully authorized to execute this Agreement in
behalf of the party.
(a)
7. '- Counterparts,
This Settlement.Agr~ement may be executed in one or more counterparts, each of which
shall be considered an original counterpart, and shall become a binding agreement when all of
the Parties hereto shall have each executed the counterpart and delivered such counterpart to the
other Parties.
8. Headings.
The headings to the paragraphs of this Settlement Agreement are inserted for
convenience only and will not be deemed a part hereof or affect the construction or interpretation
of the provisions hereof.
9. Severability,
If any part or provision of this Settlement Agreement is declared invalid, unlawful, or
unenforceable by any governmental body having jurisdiction, the remaining provisions shall
remain in full force and effect, and the Parties shall use reasonable efforts to substitute a valid,
lawful, and enforceable provision which, insofar as is practical, implements the purposes of the
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provision or part held invalid, illegal, or unenforceable. The provisions declared unlawful and
unenforceable shall be deemed null and void, and this Settlement Agreement shall continue in
effect as though such provision had not been included.
10. Governing Law.
This Settlement Agreement will be governed by and construed in accordance with the
laws of the State of Georgia, without regard to conflict of law principles thereof
IN WITNSS WHEREOF, the Parties have caused this Settlement Agreement to be
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executed by their hands effective the .l.l'&.y of -:) ~ ' 2009.
Central oj.a::nroad Company
By: ~~~~
Title: I llA/4i?111
Norfolk Souther ailway Company
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BY:) ~
Title: { aJ/!1MJ<!
Augusta, Georgia a!kla Augusta-Richmond
County, Georgia, a political subdivision of the
State of Georgia
By: cO~?(. V--
Title: j,L(~ "j-
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LAW OFFICES
BELL & BRIGHAM
Post Office Box 1547
457 Greene Street (30901)
Augusta, GeorgIa :30903-1547
(706) 722-2014
Fax (706) 722-7552
Writer's e-mail: john@beUbrlgham.com
John C. Bell, Jr. (P.C.) (Ga. & S.C.)
Leroy W. Brigham (p.C.)
Myrna L Serrano (Ga. & N.C.)
January 27, 2009
John C. Bell
(1916-1967)
~ H. Bell, Jr.
(1911-1991)
AugustalRichmond County
Consolidated Government
Augusta, Georgia
RE: Augusta/Richmond County v. Norfolk Southern Railroad Company
SETTLEMENT STATEMENT
$750,000.00
Total Recovery
LESS:
:United Parcel Service
Postage expenses
Telephone and fax expense
West law research
Mileage (two trips from Atlanta to Augusta)
Copying expenses
Parking at Ga. Supreme Court
Attorney fees
5.10
107.67
8.99
145.15
275.56
557.50
8.00
248.892.03
Total Expenses
250.000.00
$500,000.00
Net to Client
APPROVED BY:
Augusta/Richmond County
Consolidated Government
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