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HomeMy WebLinkAboutNORFOLK SOUTHERN RAILWAY COMPANY SETTLEMENT AND RELEASE AGREEMENTT < , . ,- l, SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT (the "Settlement Agreement") is ", ~ 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. 2 " 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. 3 (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: 4 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, 5 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 6 . . 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 . 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 i~f~ / 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- 7 ...... ..... . .....___...._._.N.__.__.__~_.N....-........ N.... ........N.. . .--.................. .- ,........................ .....- ..~... ".- '''~ .,. . 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 Qc' J2!3 I CJ2~ ~ B~: ~ - ?f- fi- TItle: i14-f IJ~.