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 CBD’s and the TR’s 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 each’s 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
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Spring Pygmy Sunfish Settlement Agreement SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT (“Settlement Agreement”) is entered into by and among Mazda Toyota
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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”).
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 CBD’s and the TR’s respective successors, assigns, subrogees,
present and future parents, subsidiaries, affiliates, divisions, shareholders, stockholders, owners,
The person and address to which notices are to be given may be changed at any time by one
Party upon written notice to the other Party. All notices given pursuant to this Settlement
Agreement shall be deemed given upon receipt. For the purpose of this Settlement Agreement,
the term “receipt” shall mean the earlier of any of the following: (i) the date of delivery of the
notice to the address specified in Section 13.0 as shown on the return receipt or delivery
confirmation; (ii) the date of actual receipt of the notice by the person or entity specified
pursuant to Section 13.0; (iii) in the case of refusal to accept delivery or inability to deliver the
notice, the earlier of: (A) the date of the attempted delivery or refusal to accept delivery; (B) the
date of the postmark on the return receipt; or (C) the date of receipt of notice of refusal or notice
of nondelivery by the sending Party.
14.0 Severability. If any part of this Settlement Agreement is held to be invalid or
unenforceable in any proceeding, such invalidity or unenforceability shall not affect the other
parts of this Settlement Agreement, if the rights and obligations of the Parties contained herein
are not materially prejudiced and if the intentions of the Parties can be affected. To that end, this
Settlement Agreement is declared severable. In the event any part of this Settlement Agreement
is held to be invalid or unenforceable and a Party claims that it has been deprived of a benefit
without which it would not have agreed to this Settlement Agreement, that Party may use the
Disputes and Remedies procedures set forth in Section 15.0 of this Settlement Agreement.
15.0 Disputes and Remedies. If a dispute arises with respect to the exercise of any right or
performance or nonperformance of any obligation under this Settlement Agreement the Party
alleging breach shall send the other Party written notice that a dispute exists describing the
substance of the dispute in reasonable detail (a “Dispute Notice”). Within fifteen (15) days after
the service by any Party of a Dispute Notice, the Parties will meet and confer, either in person or
by telephone, in an effort to informally resolve any such disputes. If the Parties cannot
informally resolve such disputes within fifteen (15) days after the initial meeting or such other
date as may be agreed upon by the Parties, then the Parties will agree to participate in non-
binding mediation and shall agree to engage a mediator mutually agreeable to both Parties. To
the extent the Parties are not able to resolve the dispute through mediation, the Parties shall agree
to resolve the dispute through binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The costs of the arbitration, including fees and
expenses of the arbitrators and of the American Arbitration Association, and the legal fees and
expenses incurred by the Parties in prosecuting or defending any claim that is subject of
arbitration, shall be allocated to such Parties as, and in such proportions as, the arbitrators shall
determine to be just and equitable, which determination shall be set forth in the award. Judgment
upon the award of the arbitrators may be entered by any court of competent jurisdiction.
16.0 Governing Law. The laws of the State of Alabama shall govern the enforcement,
construction, and interpretation of the provisions of this Settlement Agreement, without regard to
conflict of laws provisions.
17.0 Counterparts. This Settlement Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together constitute one and the same
instrument.
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18.0 Cooperation. The parties agree to cooperate fully to execute any and all supplementary
documents and to take all additional action that may be necessary or appropriate to give full
force and effect to the terms and intent of this Settlement Agreement.
19.0 Electronic Signatures. Electronic signatures, including signature pages transmitted via
facsimile and/or email, are binding upon all Parties and deemed as originals.
20.0 Nature of Settlement Agreement. Nothing herein may be deemed to create a partnership
or joint venture and/or principal and agent relationship between or among the Parties.
21.0 No Construction Against Drafters. The parties agree that this Settlement Agreement is a
product of draftsmanship by all sides, and the rule of interpreting an agreement against a drafting
party does not apply. The Settlement Agreement should be interpreted consistent with the policy
of finality of settlements and ending any and all litigation, including pursuit of CLAIMS. No
provision of this Settlement Agreement shall be construed against or interpreted to the
disadvantage of any Party by any court or other governmental or judicial authority by reason of
such Party’s having or being deemed to have drafted, prepared, or imposed such provision.
22.0 Entire Agreement. This Settlement Agreement contains the entire agreement between
RELEASORS and RELEASEES with respect to the matters set forth in it. The Parties further
agree that this Settlement Agreement supersedes any and all prior agreements or understandings
between the Parties, whether oral or written, pertaining to the subject matter hereof, and that the
terms hereof are contractual and not a mere recital. This Settlement Agreement cannot be
modified except in a writing signed by all original Parties to the Settlement Agreement.
23.0 Absence of Other Claims. RELEASORS represent and warrant that they have no
knowledge of other individuals or entities that have, or have had, any interest in the CLAIMS;
that RELEASORS have the sole right and exclusive authority to execute this Settlement
Agreement and obtain the actions specified in it in exchange for the Release described in Section
1.0; and that RELEASORS have not sold, assigned, transferred, conveyed, or otherwise disposed
of any of the CLAIMS.
24.0 Warranty of Capacity to Execute Settlement Agreement. Each Party represents and
warrants that each individual signing the Settlement Agreement on behalf of that Party has the
authority to sign on behalf of the entity for which they have acted as signatory.
RELEASOR - CENTER FOR BIOLOGICAL DIVERSITY
DATED:/l/l'\ ,2018 David Noah' Greenwald Endangered Species Program Director, Center for Biological Diversity
STATE OF ......o'"r_~."....r:O_,.._____) ( ) ss.
COUNTY OF 8\Nt '\-... ~ )
On ~br \"\ , 2018, before me, tl,lv (h....,... AJews , a Notary Public in and for said State, personally appeared David Noah G~nwald who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his individual and authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of {J)f<.l~ that the foregoing paragraph is true and correct. \OJ
WITNESS my hand and official seal.
Notary Signature_4-1-.>..<..+= ________ (Seal)
My Commission Expires:
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Source: Project boun dary provided by TEMA, 2018-08-07. Recharge area approxim ated by BDA, 2018-09-04
FIGU RE 4 BDA330 W. Can ton Ave., Win ter Park, FL 32789 • 407-677-1882
Environmental Consultants& ASSOCIATES, INC.BREEDLOVE, DENNIS
0 2,500 5,000Feet
1 inc h = 5,000 feet
Legen dProjec t Bou nd aryProposed ConservationCorrid orBu ffer
Com prehen sive Mon itorin g Plan Elem en ts
- Land u se trac king area- R ec h arg e area g rou nd water m onitoring (P1 - P7)- Beaverdam Creek water qu ality, baseline su rvey (BD1 - BD4)- Lim estone Creek water qu ality, baseline su rvey (LC1 - LC4)
Off SiteOn Site
- Spring Pyg m y Su nfish (SPS1 - SPS8)
DRAFT
EXHIBIT B
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EXHIBIT B
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EXHIBIT C
MTMUS/Center for Biological Diversity/Tennessee Riverkeeper: Joint Message
Platform
During the past few months Mazda Toyota Manufacturing, U.S.A. (“MTMUS”), Center for
Biological Diversity (“Center”), and Tennessee Riverkeeper (“TR”) have worked together
to develop plans with a singular goal of protecting the habitat of the spring pygmy sunfish.
As a result of this effort, the Parties have agreed upon specific steps that show their strong
commitment to protect the spring pygmy sunfish and its habitat.
MTMUS,and the Center and TR have reached an agreement that protects the habitat
of the spring pygmy sunfish, which lives in the Beaverdam Spring and Creek
Complex proximate to the site of the planned Toyota-Mazda automobile plant.
o The agreement protects more than 1,100 acres of the Beaverdam Spring and
Creek Complex where the sunfish lives, provides $4 million in funding to conserve
the species and its habitat, and offers other habitat enhancement and monitoring
protections.
o The land will be protected in its natural state by designated Land Trusts.
The agreement recognizes MTMUS, the Center, and TR’s shared goal of developing
a plan for protection of the sunfish, in consideration of the economic development
impact the intended project would bring to North Alabama.
o The MTMUS vehicle plant will be constructed on the “Huntsville Megasite” in
Limestone County at the intersection of Powell Road and Old Highway 20. Once
operational, the plant will have the capacity to build 300,000 vehicles per year.
o The site of the future automobile plant is directly adjacent to the Beaverdam Spring
and Creek complex, which until recently was believed to be the only remaining
spring complex occupied by the spring pygmy sunfish.
o After a recent discovery in Blackwell Swamp in Wheeler National Wildlife Refuge,
the sunfish is now known from only two locations in the world, both in northern
Alabama.
With this agreement, MTMUS has committed to protect the sunfish and the unique
spring where it survives.
o Through the agreement, MTMUS, together with Toyota and Mazda, commits a
total of $4 million in a restricted endowment fund that will provide permanent
funding for future conservation projects to benefit the spring pygmy sunfish,
including habitat restoration, captive propagation, genetic studies and
reintroduction efforts.
o In addition to the endowment, MTMUS has also allocated $2 million for habitat
restoration and monitoring projects in the Beaverdam Spring and Creek
watershed, including a project to restore the connection between Moss Spring and
the other spring heads in the Beaverdam Spring and Creek Complex.
o Importantly, the agreement does not constitute an admission of liability for any
claims by either party.
Throughout the planning and design of this project, MTMUS has worked closely
with multiple stakeholders and environmental experts, including the Center for
Biological Diversity and the Tennessee Riverkeeper, to develop a long-term
conservation strategy for the pygmy sunfish, and to ensure the necessary
protections are in place.
o MTMUS makes environmental preservation a priority and is committed to
developing the property sustainably.
o Toyota and Mazda remain focused and committed to their longstanding
environmental efforts. The protection of the sunfish and the unique spring where it