HomeMy WebLinkAbout12-00 RESOLUTIONs •
RESOLUTION NO. 12-00 MICROPTLMED
A RESOLUTION APPROVING A BUDGET ADJUSTMENT FOR
THE SETTLEMENT WITH GRIFFIN INDUSTRIES, d/b/a
BAKERY FEEDS, U.S. DISTRICT COURT NO. 99-5075.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1. That the City Council hereby approves a budget adjustment in the amount of
$157,500, increasing Settlements, Acct. No. 1010 6600 5311 09 by decreasing Use of Fund Balance,
Acct. No. 1010 0001 4999 99. A copy of the budget adjustment is attached hereto marked Exhibit
"A" and made a part hereof.
SEED AND APPROVED this 1st day of February , 2000.
APPROVED:
By:
ATTEST:
B
Heather Woodruff, City C
Fred Hanna, Mayor
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City of Fayetteville, Arkansas
Budget Adjustment Form
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Budget Year Department: General Government
2000 Division: Miscellaneous
Program: Miscellaneous
Date Requested
January 14, 2000
Adjustment #
EKE
Project or Item Requested:
A budget adju tment is requested to fund the settlement with
Bakery Feeds.
Project or Item Deleted:
None. Use of fund balance is proposed for this adjustment.
Justification of this Increase:
City Council and Bakery Feeds entered into a settlement
agreement that, if accepted by all of the parties and respective
Judges, will settle all litigation between Bakery Feeds, the City
and citizens.
Justification of this Decrease:
Sufficient cash & investments exist in General Fund to fund this
request.
rn
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032
-4
Increase Expen e (Decrease Revenue)
Account Name Amount Account Number Project Number
Settlements
150,000 1010 6600 5311 09
Decrease Expense (Increase Revenue)
Account Name Amount Account Number Project Number
Use of Fund Balance
150,000 1010 0001 4999 99
Approval Signatures
Requested By
Department Director
Date
1 2210
ate
Date
Mayof' Date
Budget Office Use Only
Type: A B C 633 E
Date of Approval
Posted to General Ledger
Posted to Project Accounting
Entered in Category Log
Blue Copy: Budget & Research / Yellow Copy: Requester H:\BUDGETPROJECTS\OTHER\BAKE_FDS.WK4
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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP, JERRY
LEWIS, MAXINE LEWIS, CLEO RITCHIE,
W. J. SHEELER, LINDA SHEELER,
VERMALEA SMITH, LENA JENKINS,
JULIAN WATTS and EDWARDENE WATTS
vs.
No. 99-5075
PLAINTIFFS
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS DEFENDANT/COUNTER-PLAINTIFF
CITY OF FAYETTEVILLE, ARKANSAS
A Municipal Corporation INTERVENOR/
COUNTER -DEFENDANT
AGREED ORDER OF DISMISSAL
Now on this 2-I day of /� „ - .._ 2000, comes on for consideration the
above -styled case. The Court here Inds:
1. That the parties have entered into a Settlement Agreement and Mutual Release
("Settlement Agreement"), a copy of which is attached hereto as Exhibit "A," and which is
incorporated herein by reference.
2. That the parties wish to dismiss the instant action in its entirety, with the Court
retaining jurisdiction over the enforcement of the Settlement Agreement as set forth in paragraph 22
of the Settlement Agreement.
3. That the Court hereby approves the relevant terms of the Settlement Agreement and
agrees to retain jurisdiction of this matter for purposes of enforcing its terms.
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IT IS THEREFORE ORDERED that the case be, and it is hereby, dismissed with prejudice,
subject to the terms of the attached Settlement Agreement and Mutual Release.
ITIS SO ORDE
Approved:
J n C. Everett
ohn M. Scott
E V ERETT LAW FIRM
P.O. Box 1646
Fayetteville, AR 72702
(501) 443-0292
i
Jerry E. Rose?City Attorney
113 *est Mountain
Fa etteville, AR
Marshall Dal Evans
Evans Law F rm
P.O. Box 16 6
Fayetteville, AR 72702-1686
2
UNITED STATES DISTRICT JUDGE
. DISTRICT Cot.
:STERN DIST. ARKANSAS
FILED
JAN 2 12000
" R- JOHNSON, CU'
.CPUTY CL
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (hereinafter "Settlement Agreement"), dated
this; 1 day of -T� 7 , 2000, is entered into by and among the following, who are collectively
referred to as the "Parties": James Harp, Billie Harp, Wanda Arnold, John Arnold, Roy Harp, Wilma
Harp, Jerry Lewis, Maxine Lewis, Cleo Ritchie, W. J. Sheeler, Linda Sheeler, Vermalea Smith, Lena
Jenkins, Julian Watts, and Edwardene Watts ("James Harp, et al."); Griffin Industries, Inc. d/b/a
Bakery Feeds ("Griffin Industries"); the City of Fayetteville, Arkansas, its City Council members
in their official capacities -- Robert Reynolds, Ron Austin, Cyrus Young, Kyle Russell, Trent
Trumbo, Bob Davis, Kevin Santos, Heather Daniel -- and its Mayor in his official capacity, Fred B.
Hanna, Jr., (collectively the "City"); and Teresa Eastin.
RECITALS
1. James Harp, et al. are individuals and residents of Fayetteville, Washington County,
Arkansas.
2. Griffin Industries, Inc., is a Kentucky Corporation registered to do business in
Arkansas and is doing business in Fayetteville, Washington County, Arkansas.
3. The City of Fayetteville, Arkansas, is a City of the First Class and a Municipal
Corporation organized under the Laws of the State of Arkansas.
4. Teresa Eastin, an individual, is a resident of Fayetteville, Washington County,
Arkansas.
5. In 1994, Griffin Industries began its Fayetteville operations doing business as Bakery
Feeds after receiving several permits from the City. Griffin Industries has continuously operated its
business in Fayetteville, Arkansas from September of 1994 through the present.
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6. On or around March 1, 1999, Griffin Industries filed its appeal to the Circuit Court
of Washington County, Arkansas from the Fayetteville Planning Commission's denial of Griffin
Industries' application for a "Conditional Use Unit 28" classification. Case No. CIV 99-248.
7. On April 7, 1999, the City filed a Petition for Injunctive Relief that is currently
pending in the Washington County Chancery Court styled City of Fayetteville, a Municipal
Corporation v. Griffin Industries, Inc. d/b/a Bakery Feeds Corp. and the Burlington Northern and
Santa Fe Railway Company, Case No. E 99-552. Therein, the City has asked the Court to declare
the use of Griffin Industries' building and premises to be unlawful under the zoning regulations of
the City of Fayetteville. The City has further sought an Order temporarily and permanently
enjoining Griffin Industries from "continuing, renewing, and/or extending such unlawful use and
enjoining any further use of the building or premises without obtaining a certificate of zoning
compliance as required by the zoning regulations of the City of Fayetteville." Griffin Industries
denies it is in violation of the City's zoning laws and filed a counterclaim contending that the City's
actions have constituted a taking for which just compensation must be paid.
8. On April 26, 1999, James Harp, et al. filed a Petition to abate private nuisance in the
Chancery Court of Washington County, Arkansas, Case No. E-99-675. Thereafter, Griffin Industries
removed that case to Federal Court in a case which is now captioned James Harp. et al. v. Griffin
Industnes. Inc., et al., U.S.D.C. 99-5075 (W.D. Ark.). In that case, the plaintiffs contend that Griffin
Industries constitutes a private nuisance and that Griffin Industries' operations have resulted in a
trespass upon the plaintiffs' properties. Griffin Industries denies these allegations.
9. On July 7, 1999, the City filed a Petition in Intervention in the case captioned James
Harp. et al. v Griffin Industries Inc., et al., U.S.D.C., Case No. 99-5075 ( W.D. Ark.). The City has
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asked the United States District Court for the Western District of Arkansas to declare Griffin
Industries's Fayetteville operations a public nuisance. Griffin Industries has filed a counterclaim
against the City alleging the tort of intentional interference with contractual relations and business
expectancies and seeking monetary damages from the City.
10. The City also has issued numerous citations to Griffin Industries alleging violations
of the City's noise ordinances. Approximately fourteen (14) such cases are currently pending in
Fayetteville's Municipal Court. The pending cases are as follows: Case No. A 268520, A 268523,
A 270438, A 269672. A 270198, A 264886, A 264885, A 270152, A 269668, A 267794, A 271155,
A 270638, A 2669669, A 274077.
11. The above -referenced cases involve numerous contested and disputed issues and
controversies. The Parties have pursued these legal actions and acknowledge that the outcome of
such proceedings in all jurisdictions is uncertain.
12. Each of the Parties desires to resolve all claims, controversies, disputes, causes of
action and disagreements existing among them without further costs, contested risks, delays and
burdens of additional litigation, without any admission, other than as may be provided herein, as to
the validity of any aspect of any other party's position in the pending proceedings.
AGREEMENT
NOW, THEREFORE, in consideration of this Settlement Agreement, the mutual covenants
and releases set forth herein, and for other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged. the Parties hereby agree as follows:
13. The City of Fayetteville agrees to pay to the order of Griffin Industries Eighty-five
Thousand Dollars ($85,000.00) upon the execution of this Settlement Agreement. The City further
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agrees to pay to the order of Griffin Industries Sixty-five Thousand Dollars ($65,000.00) on January
2, 2001.
14. James Harp, Billie Harp, Wanda Arnold, John Arnold, Roy Harp, Wilma Harp, Jerry
Lewis, Maxine Lewis, Cleo Ritchie, W. J. Sheeler, Linda Sheeler, Vermalea Smith, Lena Jenkins,
Julian Watts, and Edwardene Watts agree to pay to the order of Griffin Industries a total of
$7,500.00 within ninety (90) days of the execution of this Settlement Agreement.
15. The Parties agree that Griffin Industries may continue its current operations, which
include processing, at its present location for a period of ten (10) months following the execution
of this Settlement Agreement. Processing is the dehydration of moisture from the raw materials
handled by Griffin Industries. On or before the end of ten (10) months, Griffin Industries agrees to
cease its processing operations in Fayetteville, Arkansas.
16. The Parties agree that after Griffin Industries ceases its processing operations, it may
continue to utilize its premises at 1348 Cato Springs Road, in Fayetteville, for non -processing
activities in conformity with the City's zoning rules and regulations.
17. The City further agrees that it will not issue any noise violations to Griffin Industries
during the ten (10) month period of time that Griffin Industries is allowed to continue its processing
operations unless the conduct complained of is clearly egregious and well beyond Griffin Industries'
use of the site for the preceding four months.
18. The Parties and their attorneys hereby agree that no public comments, remarks or
statements will be made which would in any way disparage any other party. This prohibition shall
include, but not be limited to, any oral or written statement by any party, his attorney or his agent
to any private citizen, member of the press, or the public at large whether made via written
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instrument, telephone, television, Internet, or any other method of communication. This Settlement
Agreement is executed purely as a compromise of disputed claims, and no party, their attorneys or
agents, shall in any way expressly or implicitly imply that any party has made any legal admission.
19. Although not a party, Teresa Eastin hereby agrees to all of the provisions in paragraph
18, and will comply fully Further, Teresa Eastin agrees and understands that the Federal Court is
retaining jurisdiction over this Settlement Agreement for purposes of enforcing it, as so stated in
paragraph 22, and agrees to said jurisdiction In exchange for Teresa Eastin's promises and
commitments, Griffin Industries hereby agrees not to pursue legal action against Ms. Fastin based
upon her actions to date.
20. In consideration of the preceding paragraphs, Griffin Industries agrees not to pursue
any cause of action against any other party based upon his/her conduct which relates to the pending
controversies.
21. The Recitals set forth above are expressly made a part of this Agreement. This
Settlement Agreement shall be construed in light of the Recitals, each party representing and
acknowledging that the Recitals are true and accurate.
22. The Parties shall jointly move the United States District Court for the Western
District of Arkansas to enter an Order approving and incorporating by reference this Settlement
Agreement, without alteration, and approving the relevant terms of this Settlement Agreement.
Additionally, the Federal Court shall retain jurisdiction over this Settlement Agreement for purposes
of enforcing it by resort to appropriate Court sanctions and any other allowable remedies.
23. The City shall move the Municipal Court of Fayetteville, Arkansas, to enter an Order
dismissing all noise citations presently pending against Griffin Industries and any of its employees.
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24. The City and Griffin Industries shall jointly move the Chancery Court of Washington
County, Arkansas, to enter an Order (a) approving this Settlement Agreement, without alteration;
and (b) dismissing Case No. E 99-552, as well as the counterclaim alleged therein, with prejudice,
subject to the terms and conditions of this Settlement Agreement.
25. The City and Griffin Industries shall jointly move the Circuit Court of Washington
County, Arkansas, to enter an Order. (a) approving this Settlement Agreement, without alteration;
and (b) dismissing Case No. CIV 99-248 with prejudice, subject to the terms and conditions of this
Settlement Agreement.
26. The Parties shall be responsible for their attorneys' fees, costs and expenses incurred
to date in the pending proceedings, including but not limited to all fees and expenses due or
previously paid to the Bassett Law Firm, the Evans Law Firm or the Everett Law Firm.
27. In consideration of the promises, representations and undertakings described above,
the Parties, for themselves and their respective agents, attorneys, heirs, administrators, executors,
assigns, and anyone claiming any interest through them, herein release and forever discharge each
other and all of the other Parties' agents, attorneys, heirs, administrators, executors, and assigns from
any and all claims, actions, causes of action, suits, torts, contracts, agreements, promises, demands
and liabilities of any kind and nature in law or in equity, known or unknown, fixed or contingent,
arising from or relating to the litigation pending among the Parties in the United States District Court
for the Western District of Arkansas, the Circuit Court of Washington County, Arkansas, the
Chancery Court of Washington County, Arkansas, and the Municipal Court of Fayetteville,
Arkansas, all described above, provided however, that this Release shall not apply to claims arising
from a breach of this Settlement Agreement occurring after the date of execution. Said Release shall
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be binding on and shall enure to the benefit of the Parties' respective heirs, legatees, executors,
representatives, successors, assigns and agents.
28. The Parties shall make and execute any other such documents or agreed upon orders
as may be necessary to more fully effectuate the provisions and purposes of this Settlement
Agreement.
29. This Settlement Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof and supersedes all negotiations, prior discussions or
preliminary agreements. In entering into this Settlement Agreement, the Parties have not relied upon
any previous or contemporaneous oral, written or implied representation, endorsement, agreement
or understanding of any kind which may have been communicated by any person or entity.
30. This Settlement Agreement shall not be altered, amended, changed, terminated or
modified in any respect without the express written consent of all of the Parties.
31. Except as provided in paragraphs 13 through 19 hereof, if any term or provision of
this Settlement Agreement is declared to be invalid in a court of competent jurisdiction or if any term
or provision of this Settlement Agreement conflicts with any applicable state or federal law, such
term or provision shall be severable from and shall not effect the validity of any other term or
provision of this Settlement Agreement.
32. This Settlement Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
Agreement.
33. All notices, requests, demands or other communications under this Settlement
Agreement shall be in writing and shall be deemed to have been duly given only if hand -delivered,
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delivered by private or overnight carrier or mailed, by certified or registered mail, return receipt
requested, as follows:
Griffin Industries, Inc.
c/o John C. Everett
Everett Law Firm
P.O. Box 1646
Fayetteville, Arkansas, 72702
The City of Fayetteville
Jerry Rose, City Attorney
113 West Mountain Street
Fayetteville, Arkansas
or
Woody Bassett
Bassett Law Firm
P.O. Box 3618
Fayetteville, Arkansas, 72702-3618
James Harp, et al. and Teresa Eastin
c/o Marshall Dale Evans
Evans Law Firm
P. O. Box 1986
Fayetteville, AR 72702
34. The Parties warrant and represent that each of them has not made nor suffered to be
made an assignment or transfer of any right, claim, demand or cause of action covered by this
Settlement Agreement.
35. This Settlement is a compromise of disputed claims and neither the Settlement
Agreement, nor any representation made in it, nor the exchange of any consideration made by virtue
of it, other than is contained in the Settlement Agreement itself, shall be construed as admitting the
merit or lack of merit of any claims or defenses relating to, or arising from the facts which form the
basis of the litigation presently pending and undetermined.
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36. The Parties to this Settlement Agreement represent and warrant that they have the
power and authority to enter into this Settlement Agreement and to perform all duties and obligations
herein.
IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement and Mutual
sT
Release to be executed and effective thisit i day of cZa4✓7 2000.
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BILLIE HARP
//if
WANDA ARNOLD
/Lit& 2A-441 et"j"--Hdo<
,JOHN ARNOLD
ROY HARP
!N J^ -0. `/4a^4o
WILMA-HARP
4,. A
wararg
MAXINE LEWIS
j
L,}L&2'./,A
CLEO RITCHIE
W. J. SL3EELER
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10
LINDA SHEELER
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VERMALEA SMITH
±� •y✓Q 7l /
LENA JENKINS
JU/i. • ATTS
('n4ei&,,u c'dez.7
EDWARDENE WATTS
GRIFFIN INDUSTRIES, INC. d/b/a
BAKERY FEEDS
BY:
Its President
CITY OF FAYETTEVILLE, ARKANSAS
BY:
FRED B. HANNA, JR.
ROBERT REYNOLDS
RON AUSTIN
CYRUS YOUNG
10
JAN 20 '00 10:03
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LINDA SHEELER
VERMALEA SMITH
LENA JENKINS
JULIAN WATTS
EDWARDENE WATTS
GRIFFIN INDUSTRIES, INC. d/b/a
BAKERY FEEDS
Z c
BY:Z.
, ,a;7
Its President
CITY OF FAYETTEVILLE, ARKANSAS
BY:
FRED B. HANNA, JR.
ROBERT REYNOLDS
RON AUSTIN
CYRUS YOUNG
501 443 0564 PAGE 02
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LINDA SHEELER
VERMALEA SMITH
LENA JENKINS
JULIAN WATTS
EDWARDENE WATTS
GRIFFIN INDUSTRIES, INC. d/b/a
BAKERY FEEDS
BY:
Its President
CITY OF FAYETTEVILLE, ARKANSAS
RON AUSTIN
10
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w ,9 a4 Q-Cdawa4--
YLE RUS T.
TRENT TR`TJM
D IS
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KYLE RUSSELL
TRENT TRUMBO
BOB DAVIS
KEVIN SANTOS
HEATHER DANIEL
ERESA EASTIN
11
AR HA B&tE EVANS
JERRY ROS
WOODY BASSETT
JO C.EVERE
SCOTT
XX AGENDA REQUEST
CONTRACT REVIEW
GRANT REVIEW
STAFF REVIEW FORM
For the Fayetteville City Council meeting of February 1, 2000_
FROM:
Steve Davis
Budget & Rearch Admin. Services
Name Division
Department
ACTION REQUIRED: Approval of a budget adjustment for the settlement with Bakery
Feeds.
COST TO CITY:
$150,000.00
-0-
Cost of this Request Category/Project Budget
1010 6600 5311 09
Account Number
• Project Number
Category/Project Name
Miscellaneous
Funds Used To Date Program Name
General Fund
Remaining Balance Fund
BUDGET REVIEW:
uct Manager
Budgeted Item XX Budget Adjustment Attached
Administrative Services Director
CONTRACT/GRANT/LEASE REVIEW:
GRANT NG GENCY:
J
5iut. .0 / a y -0d JD,�`,� `,c'pl, I SSG- aAcuntin Date Ih erna ooM ger /1 Au itor Date
/-21e-g°
City' At� V Y I Date ADA Coordinator
—a4-00
Purchasing Officer
Date
Date
STAFF RECOMMENDATION: VzizooDiv Bead
rvices Director
Cross Reference
New Item: Yes No
Da e
/ i ot] Prev Ord/Res #:
%t Orig Contract Date:
ate