spring pygmy sunfish settlement agreement settlement and release agreement this settlement and...

Download Spring Pygmy Sunfish Settlement Agreement SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE…

Post on 28-Mar-2019

212 views

Category:

Documents

0 download

Embed Size (px)

TRANSCRIPT

1

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).

DEFINITIONS

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

2

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

Settlement Agreement.

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)

3

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

Recommended

View more >