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HomeMy WebLinkAbout12A-00 RESOLUTION• • RESOLUTION NO 1 9 -nn -A A RESOLUTION APPROVING A SETTLEMENT AGREEMENT WITH GRIFFIN INDUSTRIES, INC. d/b/a BAKERY FEEDS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section L. That the City Council hereby authorizes the Mayor and City Clerk to enter into a settlement agreement with Griffin Industries, Inc. d/b/a Bakery Feeds. The settlement shall contain substantially the same terms as set forth in Griffin Industries, Inc.'s letter to the City dated January 13, 2000, attached hereto and made a part hereof. PASSED AND APPROVED this JAL day of January , 2000. rt5T, r aet Heather Woodruff, City Clerk APPROVE . By: red Hanna, Mayor NAME OF FILE: CROSS REFERENCE: Date Contents of File Initials /4/-14/-00 /Sao( 14 • /G A i)nyil/mtAf7E-,edzazozmer .,./.6.4_.e.. of -i3 _0,o_ ' �o� • /3 .Z d , //AS, %tii%n� ,/S. c . Q,,,,,/,,z,,, Oti �i�e, ,//o. 77 51 XIS ) • • SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (hereinafter "Settlement Agreement"), dated this _ day of , 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 Fastin, 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. 1 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 Industnes. 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 Industries. 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 2 • • 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 3 • • 1 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 4 • • • 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. Eastin 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. 5 • • • 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 6 • • • 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, 7 • • 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. 8 • • • 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 Release to be executed and effective this day of , 2000. 9 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 EDWARDENE WATTS GRIFFIN INDUSTRIES, INC. d/b/a BAKERY FEEDS BY: Its President CITY OF FAYETTEVILLE, ARKANSAS 10 C., 0,,,cS„i RON AUSTIN RUS YOJM' G • FILE No.599 01/13 '00 18:05 ID:MURPHY & LYONS, P.S.C. FAX:606 344 0886 PAGE 2/ 3 KEVIN L. MURPHY" THOMAS C. LYONS PEGGY MURPHY BARKER' CHRISTIAN 6. STEGEMAN' JEFFREY W. RUPLE' MURPHY & LYONS, P.S.C. Attorneys at Law 207 GRANDVIEW pRIVE, SUITE 350 P. 0. BOX 17330 COVINGTON, KENTUCKY 41017-0330 TELEPHONE: (O06) 34440330 TELECOPIER:(606)344-0806 January 13, 2000 VIA FAX: (501) 521-9600 Woody Bassett BASSETT LAW FIRM P.O. Box 3618 Fayetteville, Arkansas 72702-3618 VIA FAX:15011521-9895 Dale Evans EVANS LAW FIRM, P.A. P.O. Box 1986 Fayetteville, Arkansas 72702-1986 VIA FAX: (50115754315 Jerry E. Rose City Attorney 113 West Mountain Fayetteville, Arkansas 72701 Re: Griffin Industries, Inc. d/b/a Bakery Feeds Gentlemen: eas 1a. -OD 'ALSO ADMITTED IN 01110 This will confirm that we have a settlement in this case. We have accepted the offer of the City of the $85,000.00 payment at the time the settlement agreement is signed, and a $65,000 00 payment on January 2, 2001, for a total of $150,000.00. In addition, the individual plaintiffs will pay a total of $7,500.00 to Griffin Industries. The other items have been agreed upon. These were Items discussed either during Magistrate Jones' settlement conference, on the telephone today, or both. They are as follows We have ten (10) months to move from the date of the settlement agreement being signed. All lawsuits are to be dismissed between the parties, and that includes the noise citations. JAN -13-2000 17:05 606 344 0886 P.02 FILL No.b99 01/13 '00 18:05 ID:I1URPHY & LYONS, P.S.C. FAX:606 344.0886 - PAGE 3i 3 There will be no further harassment or actions taken by the City or the neighbors against Bakery Feeds, including noise violations, unless the conduct is dearly egregious and well beyond our, normal operations. After we move, which must take place within ten months, there will no further processing at the site. However, we will be permitted to utilize that site for non - processing activities, again without any harassment or actions by the neighbors or the. City. The parties and their attorneys will refrain from any disparagement towards Bakery Feeds - not now or any time in the future. That includes any statements orally, in writing, or on the Internet, or any other form of communication. This also includes a prohibition on influencing anyone else to disparage Bakery Feeds. Also, this prohibits any negative statements regarding the settlement. Everybody seems to be pleased that this resolution came to pass, and let's keep it that way. The Federal Court will maintain jurisdiction over this settlement agreement for purposes of enforcing it. That will give everyone additional incentive to comply with the agreement. I have talked to everybody involved in this case, and they have all agreed to this. I have talked to all three of you and the Magistrate about this issue. Finally, Terry Eastin will sign off on this agreement and be bound by the Federal Court on the disparagement issue She will also forego making any claims or negative statements against Bakery Feeds in exchange for Bakery Feeds not filing the lawsuit it intended to file for defamation and other claims Also, she will not influence others along these lines. Everybody wants peace, and this agreement, as agreed, should work well. I thank the three of you for the work that you put in the other day to bring the parties together. By copy of this letter, I want to thank Magistrate Jones for the hard work she put in as well. Sincerely, d iL-2(AE) �,� KEVIN L. MURPHY KLM/ajb cc: Hon. Beverly Stites Jones (via fax: 501444-7897) John C. Everett (via fax: 501443-0564) John M. Scott (via fax: 501443-0564) F:15HARE\GRI FFIMFAYETTEVILETTERStasseval.Itl.wpd JAN -13-2000 17:06 606 344 0886 P.03 • FILE No.599 01/13 '00 1805 ID:MURPHY & LYONS, P.S.C. FAX:606 344 0886 PAGE 2/ 3 KEVIN L. MURPHY" THOMAS C. LYONS PEGGY MURPHY BARKER' CHRISTIAN 9. STEGEMAN' JEFFREY W.RUPLE" • • MURPHY & LYONS, P.S.C. Attorneys at Law 207 GRANDVIEW DRIVE, SUITE 350 P. 0. BOX 17330 COVINGTON, KENTUCKY 41017-0330 TELEPHONE: ME) 344•0530 TELECOPIER: (606) 344-08B6 January 13, 2000 VIA FAX: (5011 52114500 Woody Bassett BASSETi LAW FIRM P.O. Box 3618 Fayetteville, Arkansas 72702-3618 VIA FAX: 150115214995 Dale Evans EVANS LAW FIRM, P.A. P.O. Box 1986 Fayetteville, Arkansas 72702-1986 VIA FAX: (5011575-8315 Jerry E. Rose City Attomey 113 West Mountain Fayetteville, Arkansas 72701 Re: Griffin Industries, Inc. d/b/a Bakery Feeds Gentlemen: 'ALSO ADMITTED IN ONTO This will confirm that we have a settlement in this case. We have accepted the offer of the City of the $85,000.00 payment at the time the settlement agreement is signed, and a $65,000 00 payment on January 2, 2001, for a total of $150,000.00. In addition, the individual plaintiffs will pay a total of $7,500.00 to Griffin Industries. The other items have been agreed upon. These were items discussed either during Magistrate Jones' settlement conference, on the telephone today, or both. They are as follows. We have ten (10) months to move from the date of the settlement agreement being signed. All lawsuits are to be dismissed between the parties. and that includes the noise citations. JAN -13-2000 17:05 606 344 0886 P.02 Fitt No.599 01/13 '00 18:05 ID:MURPHY & LYONS, P.S.C. FAX:606 344 0886 PAGE 3i 3 • • There will be no further harassment or actions taken by the City or the neighbors against Bakery Feeds, including noise violations, unless the conduct is dearly egregious and well beyond our normal operations. After we move, which must take place within ten months, there will no further processing at the site. However, we will be permitted to utilize that site for non - processing activities, again without any harassment or actions by the neighbors or the City. The parties and their attomeys will refrain from any disparagement towards Bakery Feeds - not now or any time in the future. That includes any statements orally, in writing, or on the Internet, or any other form of communication. This also includes a prohibition on influencing anyone else to disparage Bakery Feeds. Also, this prohibits any negative statements regarding the settlement. Everybody seems to be pleased that this resolution came to pass, and let's keep it that way. The Federal Court will maintain jurisdiction over this settlement agreement for purposes of enforcing it. That will give everyone additional incentive to comply with the agreement. I have talked to everybody involved in this case, and they have all agreed to this. I have talked to all three of you and the Magistrate about this issue. Finally, Terry East!) will sign off on this agreement and be bound by the Federal Court on the disparagement issue. She will also forego making any claims or negative statements against Bakery Feeds in exchange for Bakery Feeds not filing the lawsuit it intended to file for defamation and other claims Also, she will not influence others along these lines. Everybody wants peace, and this agreement, as agreed, should work well. I thank the three of you for the work that you put in the other day to bring the parties together. By copy of this letter, I want to thank Magistrate Jones for the hard work she put in as well. Sincerely, KEVIN L. MURPHY )911-41/4) KLM/ajb cc. Hon. Beverly Stites Jones (via fax: 501444-7897) John C. Everett (via fax: 501443-0564) John M. Scott (via fax: 501443-0564) F:\SHARE\GRIFFIMFAYETTEViLETTERStassevan.ttr.wpd JAN -13-2000 17:06 606 344 0886 P.03 • • 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 Now on this AGREED ORDER OF DISMISSAL day of , 2000, comes on for consideration the above -styled case. The Court hereby finds: 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. 1 O A 615) 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. IT IS SO ORDERED. UNITED STATES DISTRICT JUDGE Approved: n C. Everett ohn M. Scott EVERETT LAW FIRM P.O. Box 1646 Fayetteville, AR 72702 (501) 443-0292 Jerry E. Rose, City Attorney 113 West Mountain Fayetteville, AR 72701 Marshall Dale Evans Evans Law Firm P.O. Box 1686 Fayetteville, AR 72702-1686 /V/ RESOLUTION NO. 7> // 0 ' /7 A RESOLUTION APPROVING A SEI ILEMENT AGREEMENT WITH GRIFFIN INDUSTRIES, INC. d/b/a BAKERY FEEDS. BE IT RESOLVED BY THE CITY COUNCIL OF'THE CITY OF FAYETTEVILLE, ARKANSAS V Section 1 That the City Council hereby authorizes the Mayor and City Clerk to enter into a settlement agreement with Griffin Industries, Inc d/b/a BakeryFeeds. The settlement shall contain substantially the same terms as set/forth in Griffin Industries,' Inc.'s letter to the City dated January 13, 2000, attached hereto and made a part hereof. / PASSED AND APPROVED this 144E day of January , 2000. 11.\ APPROVED: By: ATTEST, By: ' Heather Woodruff, City Clerk Fred Hanna, Mayor