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HomeMy WebLinkAbout1989-10-23 SPM Exhibits RESOLUTION OF THE NEW HANOVER COUNTY BOARD OF COMMISSIONERS WHEREAS, in consideration of a proposed settlement agreement which would terminate pending litigation between the County and Jetstream Aero Services, Inc., the Commissioners find that it is in the best interest of the County, the Airport Authority, and future growth and prosperity of the airport and businesses associated therewith for said agreement to be approved. The cost to the County is limited to the waiver of past due rent as claimed in a counterclaim filed in the suit pending in Superior Court, and the Commissioners recognize that Jetstream has revised various issues in both the federal and state suits, that the outcome of a trial is uncertain, and that expenses and time of County personnel which would be devoted to a trial would be considerable. NOW THEREFORE, it appears to be prudent to waive said rental claim as the County's direct contribution to achieve a settlement. The Chairman and Clerk are authorized to execute the proposed settlement agreement and to implement the terms of said agreement after it has been executed by Jetstream and its principals. of October, 1989. [SEAL] NEW HANOVER COUNTY CZ:tl~ Fred Retchin, Chairman Board of County Commissioners RELEASE AND SETTLEMENT AGREEMENT Agreement between Jetstream Aero Services, Inc., W. Ed Samuels, and Fraser Perry, First Parties; and New Hanover County, Rudolph C. Shackelford, Jr., John E. Nolan, G. Felix Cooper and Sky D. Conklin, Second Parties, made the 23rd day of October, 1989. 1. Parties Identified. Jetstream Aero Services, Inc., (Jetstream) is a North Carolina corporation which owns a fixed base operation (FBO) and leases real estate at New Hanover County Airport. W. Ed Samuels and Fraser Perry (the Jetstream Principals) are owners of all the members of the Board of Directors, Jetstream. New Hanover County is a political subdivision of the State of North Carolina and enters into this Agreement by authority of its Board of Commissioners. At the time of the events complained of in the complaints filed in the referenced lawsui ts, Rudolph C. Shackelford, Jr. was Manager of New Hanover County Airport, John E. Nolan was Assistant Manager, G. Felix Cooper was County Manager, and Sky D. Conklin was Inspections Director. Said individuals are referred to herein as Individual Defendants. 2. Purpose of Agreement. This Agreement is entered into for the purpose of compromising and settling pending litigation between Jetstream as Plaintiff against the County and common stock, controlling and principal officers, of Individual Defendants. Specifically, the civil actions which will be t.erminated by judgments of dismissal upon the execution of this Agreement are: 1. Jetstream Aero Services, Inc. v. New Hanover County, Rudolph C. Shackelford, Jr., John E. Nolan, G. Felix Cooper and Sky. D. Conklin, pending in tne United States District Court for the Eastern District of North Carolina, as case no. 86-85-CIV-7. 2. Jetstream Aero Services, Inc. v. New Hanover County, pending in the Superior Court of New Hanover County, as case No. 87CVS2911. The Individual Defendants in the aforesaid action pending in federal court are providing none of the consideration given in exchange for the releases herein contained but are intended to be fully and finally released of all claims to the same extent as the County. It is acknowledged that the parties have entered into this Agreement for the purpose of resolving long standing disputes and avoiding the cost and distraction which would be required if the two referenced lawsuits were tried to a conclusion, probably followed by an appeal in each case. The County denies that, whether acting through one or more of the Individual Defendants or any other persons, it has committed any wrong against Jetstream or its Principals. Jetstream denies that the monies claimed in the counter claim are owed. It is agreed that this Agreement does not constitute an admission that the 2 County or any official or employee of the County acted in any way to discriminate against Jetstream or to deprive it of any right under the Constitution. 3. Terms of Compromise and Settlement. (a) The County and Individual Defendants agree that in consideration of the terms herein agreed to by Jetstream and the Jetstream Principals, that: (1) The County will cause to be paid by its liability insurance carriers the sum of $200,000, subject to the provisions of subparagraph 3(b)(2). (2) The County will consent to the dismissal with prejudice of its counterclaim in the state court action referenced herein. (3) They request the New Hanover County Airport Authority to give full and fair consideration to, and will not oppose consideration of, any request by Jetstream to: (a) eliminate from the property it leases an area of approximately 2 acres northeast of the parking area, an area of approximately 5 acres south of the line shack, and some reasonable portion of the taxiway leading to the Jetstream leasehold. (b) grant to Jetstream access to business associated with the customs facility on the west ramp, i.e., a satellite fueling station. (c) negotiate a new lease agreement to extend the term of its lease (which now has a termination date of December 31, 1995). 3 The County and the Individual Defendants acknowledge the autonomy and independence of the Authority to negotiate and come to agreement with Jetstream concerning such matters. (4) It is acknowledged that Jetstream may spray paint if its facilities conform to applicable code provisions, and that the applicable code is the North Carolina State Building Code. (b) Jetstream and the Jetstream Principals agree that, in consideration of the terms herein agreed to by the County: (1) Jetstream and the Jetstream Principals release and discharge the County, each and all of the Individual Defendants, each of the former defendants in the referenced federal civil action, and every present and former officer and employee of the County, of and from all claims, demands and causes of action whatsoever, arising out of any matter or thing of whatever nature which occurred or did not occur at any time in the past to and including the date of this Agreement, whether previously asserted or not. (2) When the aforesaid payment of the settlement sum is made to Jetstream, said payment shall be reduced by the amount of any rent owing by Jetstream (exclusive of sums claimed in the aforesaid counterclaim) to the New Hanover County Airport Authority and the amount of any such arrearage shall be paid by the County, through its insurance carriers, to said Authority. (3) If Jetstream should, for the purpose of obtaining approval, submit to the New Hanover County Department of Inspections plans for a spray painting facility, it shall 4 simultaneously submit copy of said plans to the North Carolina Building Code Council so as to facilitate an immediate appeal in the event County inspectors determine said plans to be inadequate. 4. Dismissals of Civil Actions. Jetstream and the County agree to the dismissal with prejudice of the litigation referenced herein, including the County's counterclaim in said state court action. Each will request the respective Courts to enter judgments of 'dismissal with prejudice, requiring each party to bear its own costs (exclusive of appellate costs). 5. Merger. It is acknowledged that this document contains all of the agreements between the parties which form the basis of the dismissal of the referenced litigation and that all prior negotiations and understandings are merged into this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date aforesaid. JETSTREAM AERO SERVICES, INC. By: W. Ed Samuels By: Fraser Perry 5 ". Consented to: Noel L. Allen Jack Crossley Attorneys for Jetstream Aero Services, Inc. and W. Ed Samuels and Fraser Perry ATTEST: Clerk to the Board Consented to: Robert W. Pope County Attorney W~ Ed Samuels Fraser Perry NEW HANOVER COUNTY By: Fred Retchin, Chairman Board of Commissioners Rudolph C. Shackelford 6 Consented to: Dewey W. Wells Donald F. Lively Attorneys for New Hanover County and Individual Defendants John E. Nolan G. Felix Cooper Sky D. Conklin Individual Defendants 7