Metro Enviro - Draft Settlement Agreement
SETTLEMENT AGREEMENT
        THIS SETTLEMENT AGREEMENT dated as of __________, 2004, is entered into by and among the Village of Croton-on-Hudson and the Village Board of Trustees of the Village of Croton-on-Hudson (the “Board”) (collectively “the Village” or “Respondents”) and Metro Enviro Transfer , LLC (“Metro Enviro” or “Petitioners”).
        WHEREAS, Metro Enviro operates a solid waste transfer station (the “Facility”) in the Village under a special use permit (“Special Permit”), which has a number of conditions attached that are designed to protect the health, safety and welfare of people living in the Village; and
        WHEREAS, on January 27, 2003, the Village denied Metro Enviro’s application to renew the Special Permit and ordered Metro Enviro to close the Facility, due to a number of violations that occurred while Metro Enviro was operating the Facility; and
        WHEREAS, on January 31, 2003, Petitioner filed a verified petition naming the Village and Board as Respondents and seeking judgment pursuant to Article 78 of the C.P.L.R. in the Supreme Court of the State of New York, County of Westchester, Index No. 1788/03 and Petitioner moved for a stay of the Board’s decision pending a determination on the merits by order to show cause dated February 3, 2003; and
        WHEREAS, on February 4, 2003, the Honorable Francis A. Nicolai granted the stay and on February 20, 2003, a Short Form Order by Justice Nicolai annulling the decision of the Board not to renew the Special Permit was entered in the Office of the Clerk of the Supreme Court, County of Westchester; and
        WHEREAS, the Village appealed the decision of the Supreme Court of the State of New York, County of Westchester to the Appellate Division, Second Department, which, on May 10, 2004, reversed the decision of the lower court and dismissed the  Petition; and
        WHEREAS, on June 6, 2004, pursuant to the decision of the Appellate Division, the Village directed Metro Enviro that it should cease accepting waste on July 14, 2004 and commence closure procedures; and
        WHEREAS, on July 12, 2004, Judge Robert S. Smith of the New York State Court of Appeals stayed the operation of the Appellate Division’s decision and thus the Village’s closure order, pending a decision regarding Petitioner’s motion for leave to appeal to that court;
        WHEREAS, this stay had the effect of reinstating Justice Nicolai’s decision annulling the Board’s decisions to deny the renewal of the Special Permit and order the Facility to close, and thus, the Special Permit is currently in effect;
        WHEREAS, the Village and Metro Enviro wish to settle and finally resolve the litigation related to the renewal of the Special Permit and the known past violations; and
WHEREAS, the Board is proposing to resolve to renew the Special Permit in accordance with the terms of the special use permit (“Renewed Permit”) attached as Exhibit 1, after public notice, subject to consideration of comments received from the public; and
WHEREAS the parties intend that in the event of a violation of the Renewed Permit, Metro Enviro will continue to receive notices of violation, and, where appropriate, an opportunity to cure, as set forth in the Renewed Permit; and
WHEREAS the parties further intend that isolated accidental occurrences and isolated occurrences resulting from ordinary negligence, that do not result in substantial verifiable harm to public health, safety, or the environment, will not alone preclude future renewal of the Special Permit or provide a basis for suspension or revocation of the Renewed Permit, but grossly negligent, reckless, callous, or intentional violations; or repeated, persistent, or uncured negligent violations by Metro Enviro; or events that result in substantial verifiable harm to public health, safety, or the environment, will likely under the circumstances result in denial of any renewal application and/or suspension or revocation of the permit; and
        WHEREAS, the Village and Metro Enviro covenant and agree that upon the renewal of the Special Permit becoming operative in accordance with the terms of the Renewed Permit and the Board’s resolution to issue it, other covenants as described more fully herein shall become effective;
        NOW, THEREFORE, in consideration of the covenants and obligations set forth herein, Metro Enviro and the Village agree as follows:
1.      After public notice required by law and consideration of the public comment received, the Board is renewing the Special Permit for an initial term of two years in accordance with the terms set forth in the Renewed Permit,  and subsequently shall renew the Renewed Permit for an extended term of three years, subject to the further consideration of public comment, and the provisions of this Settlement Agreement and the Renewed Permit.
2.      Commencing with the effective date of the Renewed Permit, Metro Enviro agrees to:
A.      Pay to the Village as a supplement to real estate taxes, and other fees or charges associated with the operation of the Facility, a Transfer Station Impact Fee (“TSIF”) of $4.00 per ton of waste received during the first year of the initial term of the Renewed Permit, increasing to $5.00 per ton of waste received during the second year of the initial term of the Renewed Permit.  Tonnage will be based on all materials received at the Facility for processing, recycling, and/or disposal.
B.      Pay to the Village as a supplement to real estate taxes, and other fees or charges associated with the operation of the Facility, a TSIF of $5.25 per ton of waste received during the extended term, if any, of the Renewed Permit.  Tonnage will be based on all materials received at the Facility for processing, recycling, and/or disposal.
C.      Reimburse the Village for its fees, costs and disbursements incurred to date in connection with the administration and enforcement of the Special Permit in the amount of $440,000.  Payment shall be made in installments of $55,000 per quarter, with the first payment due one week following the Board’s renewal of the Special Permit.  This payment is not subject to any condition subsequent.
D.      Reimburse the Village for fees, costs and disbursements in the amount of $25,000 per year to reimburse the Village for its expenses in hiring a monitor (the “Village Monitor”) to measure environmental conditions and evaluate compliance with the conditions of the Renewed Permit and the DEC permit during the initial two year term and the extended three year term.  This money shall be paid quarterly.
E.      Allow the Village Monitor to conduct air sampling using high volume air samplers or other sampling technology, and provide space and power connections at air sampling locations to be agreed in good faith.
F.      Withdraw its motion for leave to appeal to the Court of Appeals and dismiss with prejudice all of the claims in its Verified Petition against the Village regarding the Special Permit renewal process, except that it agrees to request that the Supreme Court retain jurisdiction to enforce the provisions of this Settlement Agreement.  This withdrawal and dismissal shall be effective immediately upon the expiration of the statute of limitations for judicial challenges to this Settlement Agreement and the accompanying Special Permit, if no challenge is brought; or, if a challenge is brought, immediately upon the expiration of any appeals or rights of appeal.  Metro Enviro will file the necessary papers expeditiously after the effective date.
G.      Release all potential claims of Metro Enviro, and anyone claiming any right through it, that accrued on or prior to the renewal of the Special Permit against the Village or its officers or employees immediately following the renewal of the Special Permit.
H.      Allow the Village to dispose of acceptable waste at the Facility at rates that are equal to the lowest rate charged to any customer for disposal of similar types of waste.
I.      Grant the Village a license to use the northwestern portion of the Facility site, as shown on Exhibit 2 (the “Licensed Area”), attached hereto, in return for total consideration of $1.00 per year.  Said license shall be memorialized in a separate written license agreement, which shall be subject to the following limitations:
i.      the Village’s use of the Licensed Area shall not interfere with the operation of the Facility and shall not cause material out-of-pocket cost to Metro Enviro;
ii.     notwithstanding i. above, Metro Enviro shall widen the by-pass entrance around the incoming scale platform to at least 15 feet wide, measured from the outside edge of the Jersey barrier currently in place;
iii.    the duration of the license shall be coterminous with that of the Renewed Permit;
iv.     the Village’s use of the Licensed Area shall comply with all applicable laws, rules and regulations, the Village shall be responsible for obtaining any applicable permits or governmental approvals and shall not adversely affect the use and function of the stormwater basin located within the Licensed Area;
v.      the Village shall be entitled to construct a concrete pad in the Licensed Area, subject to the agreement of Metro Enviro, which shall not be unreasonably withheld.
3.      Metro Enviro shall make the payments provided hereunder – the TSIF payments, the payments in reimbursement for the Village’s administration and enforcement of the Special Permit, and the costs for the Village Monitor -- one month following the end of each quarter, commencing on the date of renewal of the Special Permit.  Payments shall be accompanied by a certified declaration prepared by an officer or employee of Metro Enviro regarding the amount of waste received in the period for which the payment is made.   If any payment becomes more than one month overdue, the Village shall provide prompt written notice to Metro Enviro and its counsel of any such default in payment, and Metro Enviro shall be given 30 days opportunity to cure.  In the event of failure to cure within said 30 day period, Metro Enviro agrees to pay an additional 5% late payment penalty,  this may be regarded as a violation of this agreement and the renewed Special Permit, and could thus trigger revocation or non-renewal of that permit.
4.      Metro Enviro understands that future phases of the Village’s use of the Licensed Area may result in the removal of the building on the north end of the property and a possible new building which would be constructed by the Village.  If the Village decides to remove such building and/or construct a new building, the Village and Metro Enviro agree to negotiate in good faith in the future in an attempt to reach detailed agreement on these issues.
5.      Immediately following the adoption of the resolution renewing the Special Permit in accordance with the conditions in the Renewed Permit, the Village agrees to release Metro Enviro from all claims regarding the violations of the Special Permit that were known to the Village and occurred at the Facility prior to the renewal date of the Special Permit, and Metro Enviro agrees to release the Village, the Village Board of Trustees and its members, and all employees of and consultants and counsel to the Village, for any and all claims relating to the proceedings prior to the renewal date of the Special Permit.
6.      The Village agrees that it will send to Metro Enviro reports received from the Village Monitor within five days of their receipt by the Village.  To the extent permitted by law, the Village agrees not to release such records to the public until Metro Enviro has had five days to review, comment upon, or seek changes in any assertions made by the Village Monitor.
7.      Neither the provisions of this Settlement Agreement nor the fact that the parties have entered into it shall be evidence or an admission of any liability, or any fact or law tending to establish liability, for any past, present or future claims of any kind against either of the parties or their affiliates, or any of the parties’ respective trustees, shareholders, officers, directors, agents, members or employees, with the sole exception of proceedings to enforce this Settlement Agreement.
8.      No amendment or deletion of any provision of this Settlement Agreement shall be valid unless the same shall be in writing and signed by all parties hereto.  Each waiver by any party of any default or breach hereunder shall be in writing, and no waivers shall be deemed to extend to any prior or subsequent default or breach or affect in any way any rights arising by virtue of any prior or subsequent such default or breach.
9.      This Settlement Agreement, together with all Attachments hereto, sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of every kind and nature between them and their officers, directors, employees and agents.
10.     The signatories to this Settlement Agreement have all requisite power and authority to execute and deliver, and to perform all of their obligations under, this Settlement Agreement and any covenant and resolution necessary thereto.  The execution, delivery and performance of this Settlement Agreement have been duly and validly authorized by all necessary actions required on the part of the parties and no other proceedings are necessary to authorize this Settlement Agreement.
11.     The parties have participated jointly in the negotiation and drafting of this Settlement Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Settlement Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
12.     By executing this Settlement Agreement, the Village hereby consents to the immediate release of the Bond previously posted by Metro Enviro with the Westchester County Clerk in light of the fact that the Stay issued by Judge Smith will no longer be necessary or effective once Metro Enviro files a withdrawal of it motion for leave to appeal to the New York State Court of Appeals.
13.     In the event that any court invalidates any portion of this Settlement Agreement, or of the renewed Special Permit, then the Settlement Agreement and the renewed Special Permit are cancelled, and the parties will be returned to the situation that existed prior to the entry of the Settlement Agreement and the renewal of the Special Permit.
        IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement as of the date first above written.
                                Village of Croton-on-Hudson AND
                                Village Board of Trustees of the Village of                                     Croton-on-Hudson

Date:                           By:                                                     
                                Name:                                                   
                                Title:                                                  
                                Metro Enviro Transfer, LLC
Date:                           By:                                                     
                                Name:                                                   
                                Title: