spring pygmy sunfish settlement agreement settlement and release agreement this settlement and...
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SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (Settlement Agreement) is
entered into by and among Mazda Toyota Manufacturing, U.S.A., Inc. (MTMUS), a Delaware
corporation, and the Center for Biological Diversity, a California non-profit organization
(CBD), and the Tennessee Riverkeeper, an Alabama non-profit organization (TR), (TR
together with CBD, the Conservation Groups) (MTMUS, CBD, and TR are each a Party
and, collectively, they are the Parties).
This Definitions Section of this Settlement Agreement sets forth the meaning of some
words that are repeated throughout the Settlement Agreement where those definitions are
material to a full understanding of the terms and conditions of the Settlement Agreement, as
intended by the Parties. It is the Parties intent to incorporate the provided definitions as if fully
set forth within the body of the Settlement Agreement whenever such defined words appear in
capital letters. When used other than in capital letters, the words have their ordinary meaning.
A. RELEASORS. Whether used in the singular or plural, includes CBD and TR. Further, to the fullest extent that the foregoing have the capacity to bind them so as to maximize
both the breadth of the definition of, and the protection and benefit to, RELEASEES, the term
RELEASORS also includes the CBDs and the TRs respective successors, assigns, subrogees,
present and future parents, subsidiaries, affiliates, divisions, shareholders, stockholders, owners,
officers, directors, employees, licensors, licensees, servants, insurers, representatives, agents,
designees, associates, staff, affiliates, tenants, executors, and administrators, and beneficiaries of
any and all rights, interests and properties of CBD and TR. RELEASOR(S) includes each of the
foregoing, or any one or more of them, depending on context.
B. RELEASEES. Whether used in the singular or plural, includes Mazda Toyota Manufacturing, U.S.A., Inc., Toyota Motor Corporation, Toyota Motor North America, Inc.,
Toyota Motor Manufacturing, Alabama, Inc., and any other Toyota entities (Toyota Motor
Corporation, Toyota Motor North America, Inc., Toyota Motor Manufacturing, Alabama, Inc.
and any other Toyota entities collectively, Toyota Entities), Mazda Motor Corporation, Mazda
Motor of America, Inc., and any other Mazda entities (Mazda Motor Corporation, Mazda Motor
of America, Inc. any other Mazda entities collectively, Mazda Entities), the City of Huntsville,
a municipal corporation in the State of Alabama, along with its elected and appointed officials
acting in their official capacities, and all of its duly formed boards, agencies, and authorities, and
any and all of each (City of Huntsville), and any and all of eachs past, present and future
parents, subsidiaries, affiliates, divisions, shareholders, stockholders, owners, members, officers,
directors, employees, agents, licensors, licensees, servants, attorneys, insurers, experts, suppliers,
consultants, investigators, representatives, and any other entity, corporate, governmental, or
municipal, supporting or otherwise involved with the PROJECT or PROJECT SITE.
The definition of RELEASEES is intentionally defined broadly to encompass all
individuals and entities associated in any way with Mazda Toyota Manufacturing, U.S.A., Inc.,
Toyota Motor Corporation, Toyota Motor North America, Inc., Mazda Motor Corporation,
Mazda Motor of America, Inc., and City of Huntsville to cover the largest and broadest group of
individuals and entities, corporate, governmental, or municipal, supporting or otherwise involved
in the PROJECT or PROJECT SITE to bring all litigation to an end and to foreclose any future
litigation arising directly or indirectly out of, or relating in any way to the CLAIMS or
DAMAGES. All Parties understand and agree that RELEASEES includes entities and
individuals described in the definition of RELEASEES even though some of those individuals
and entities are not signatories to this Settlement Agreement, and/or are not identified by name in
this Settlement Agreement, and/or were not recipients of the SIXTY-DAY NOTICE OF
INTENT TO SUE LETTERS. RELEASEES shall not be limited in any way and will include
any individual and entity associated with Mazda Toyota Manufacturing, U.S.A., Inc., Toyota
Motor Corporation, Toyota Motor North America, Inc., Mazda Motor Corporation and Mazda
Motor of America, Inc. that is, or could be, the subject of any past, present, or future claim or
lawsuit arising directly or indirectly out of, or relating in any way to, any CLAIMS or
DAMAGES. For the avoidance of doubt, any RELEASEES who are not signatories to this
Settlement Agreement are expressly intended to be direct third-party beneficiaries of this
C. CLAIMS. Whether used in the singular or plural, includes any demands, requests for compensation of injuries or harms of any kind, requests for damages, compensation,
or relief of any kind, obligations, legal actions, lawsuits, complaints, enforcement of rights,
petitions, and all causes of action that arise directly or indirectly out of, or relate in any way to
the PROJECT or PROJECT SITE in any respect, including without limitation, any claims related
to plans, studies, assessments, design, scoping, approvals, site preparation, construction,
implementation, permitting, and operation, the spring pygmy sunfish and its habitat and other
species known to exist in the area and any claims that were asserted or could have been asserted
in the SIXTY-DAY NOTICE OF INTENT TO SUE LETTERS, that (a) have ever existed, (b)
now exist, or (c) may exist in the future. CLAIM(S) also includes any claims in law or equity,
including any claims or causes of action for non-compliance with any federal, state, local, or
other environmental legal requirement (including statutes, regulations, laws, ordinances,
guidance documents, and directives). CLAIM(S) also includes any legal proceeding, including
motions, brought to obtain any form of relief, including DAMAGES.
The definition of CLAIMS does not include: 1) Center for Biological Diversity v.
Zinke, et al., Civil Action No. 1:18-cv-01375, and any other critical habitat designation claims
for the spring pygmy sunfish that the Conservation Groups may file against U.S. Fish and
Wildlife Service (USFWS) or the U.S. Department of Interior, and Center for Biological
Diversity v. U.S. Fish and Wildlife Service, Civil Action No. 5:18-cv-01312, and any other
Freedom of Information Act (FOIA) or public record request actions that the Conservation
Groups may file against USFWS seeking to obtain information concerning species in the
Beaverdam Spring and Creek Complex and/or Limestone Creek; provided, however, that any
such actions or any information obtained by or produced to the Conservation Groups in such
actions cannot be used in any way to pursue or support any CLAIMS against the RELEASEES;
or 2) any Partys rights to enforce this Settlement Agreement as provided in Section 15 herein.
D. DAMAGE(S). Whether used in the singular or plural, includes any relief sought by any CLAIMS, including relief arising out of, or relating in any way to: (a) injunctive relief,
(b) declaratory relief, (c) specific performance, (d) general damages, (e) special damages, (f)
property damage, (g) punitive or exemplary damages, (h) attorneys fees, (i) sanctions or other
penalties, (j) litigation costs and expenses, and (k) any obligation or liability of any nature
whatsoever, fixed or contingent, joint or several. DAMAGE(S) also includes all of the above
enumerated forms of relief that existed in the past, that now exist, and that may exist in the future
in connection with any CLAIMS.
E. PROJECT. Means the site preparation, construction, equipping, and operation
of manufacturing facilities for the production of vehicles by MTMUS, Toyota Entities, and
Mazda Entities, which includes various supporting operations, services, and functions at the
PROJECT SITE to facilitate the production and distribution of vehicles and operation of the
facilities at the PROJECT SITE.
F. PROJECT SITE. Means Lot 1 of the Limestone Huntsville Combination Plat as
recorded in Plats Book J, Page 179 in the Probate Records of Limestone County, Alabama, and
proximately located lands.
G. DESIGNATED LAND TRUST. Means the Land Trust of North Alabama, the
Alabama Forever Wild Land Trust, any other qualified charitable organization mutually agreed
upon by the Parties, or any combination thereof.
H. DESIGNATED ENDOWMENT FUND ENTITY. Means the Land Trust of North Alabama or any other qualified entity mutually agreed upon by the Parties.
I. SIXTY-DAY NOTICE OF INTENT TO SUE LETTER(S). Means the Sixty-Day Notice of Intent to Sue Letter for Violations of the Endangered Species Act from Activities
Associated with Construction and Operation of Toyota-Mazda Automotive Plant in Huntsville,
Alabama, dated July 25, 2018, sent by the CBD to MTMUS and the City of Huntsville, and the
Sixty-Day Notice of Intent to Sue Letter for Violations