Free Settlement Agreement - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 246

Filed 05/24/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
CAROL AN ROBERT TESTWUIDE, et. al.,
Plaintiffs,
v.

) ) ) ) )

No.Ol-20lL

)

THE UNITED STATES OF AMERICA,
Defendant.

)

) )
)

Judge Victor J. Wolski

)

SETTLEMENT AGREEMENT AN RELEASE
and

Ths Settlement Agreement and Release is made tls ~ day of

May, 2007, by

between the United States of America (hereinafter referred to as the "United States") and Plaintiffs
for the followig cases: Testwde v. United States, No. 01-201L; Burlage v. United States, No. 04-

(

120L; Adams v. United States, No. 04-279L; Anderson v. United States, No. 04-333L; Beagle v.
United States, No. 04-1176L; Aralar v. United States, No. 04-1280L; Whtley v. United States, No.

04-1331L; Price v. United States, No. 04-1718L; and Mack v. United States, No. 05-628L,

(hereinafter collectively referred to as the "Plaitiffs"), with the exception of the followig
individuals:

LAST NAME

FIRT NAME
Doris Jean

PROPERTY

CITY ZIP
VB VB VB VB VB VB VB

COMPLA
WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY

Edey

996 Lynaven Pkw.
412 27th St. 928 Smoke Tree Lane
3014 Dedi Ct. 863 Park Place Dr.

Hicha
Hubbard Savostyanov Vallance Werner

Hal

Shiley
Willam II & Tracy

Gar & Mar
Alexei & Natalija
James & Jennfer

Ane

3 i 17 Bloomfield Ct. 1272 Alanton Dr.

23452 23451 23452 23456 23451 23456 23454

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LaRossa

Lar & Pau1a

2124 Land ofPrommse Rd.

Ches. 23322 WHITLEY

The above individuals not parcipatig in tls Settlement Agreement and Release are hereinafer

collectively referred to as the "Non-Settg Plaitiffs." Any plaitiffs in addition to the above
individuas who do not parcipate in the settement will also be considered "Non-Settg Plaitiff."

WHEREAS, the Plaitiffs being owners on Ju1y 1, 1999 of all respective propertes situted
in Chesapeake, Virgia and Virgia Beach, Virgia that are the subject oftls litigaon (hereinr

teferred to as "Propert" or "Propertes"); and,
WHEREAS, Plaitiffs brought the above-captioned lawsuit, T estde v. United States, No.

01-201L (Filed April 5, 2001) and the followig eight related cases that are the subject of tls
litigation and tls Settlement Agreement and Release: Burlage v. United States, No. 04- l20L (Filed
Janua 29,2004); Adas v. United States, No. 04-279L (Filed March 2,2004); Anderson v. United

States, No. 04-333L (Filed March 8, 2004); Beage v. United States, No. 04- 1 176L (Filed Ju1y 19, 2004); Aralar v. United States, No. 04-1280L (Filed Augut 13,2004); Whtley Y. United States, No.
04-133lL (Filed Augst 16,2004); Prce Y. United States, No. 04-1718L (Filed November

29, 2004);

and Mack v. United States, No. 05-628L (Filed June 16,2005), in the United States Cour of

Federal

Clais, allegig a tag of their Propertes by the United States by vie of flghts origiatig ITom

United States Naval Ai Station Oceana ("NAS Oceana") and Naval Auxar Landig Field Fentress
("NALF Fentress"); and
NOW THEREFORE, for good and

vauale consideration, the suffciency of which is

hereby acknowledged, and intendig to be legaly bound, the Plaintiffs and the United States do
hereby agree as follows:

1. The United States wil pay to Plaitiffs an amount not to exceed Th-Four Mion,
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Four Hundred Six Thousand Dollars ($34,406,000.00), which shall be made payable to the Jet NoÍYe

Lawuit Settemet Trt Account. Ths payment is inclusive of al pricipal, interest, and
attorneys' fees, costs, and other expenses incured to date and in the futue, other than attorneys'

fees, costs and any other expenses solely incured afer the date of ths Settement Agreement and

Release in connection with the Non-Settg Plaintis. Ths maxum payment shal be reduced as
specified in paragraphs 2-6, ina. The disbursement offuds as between and among the Plaitis
shall be determed solely by the Plaitiffs, to include payment of costs and attorneys' fees inCUIed.

2. In the eyent that more than 740 of

the Propertes have been sold by an Plaiti pror

to March 20, 2007, the United States' payment specified in paragraph 1 shal be reduced by
$5,000.00 for each Propert sold in excess of 740 Propertes. In the event that more than 800

Propertes have been sold by any Plaitiffs prior to March 20, 2007, the United States may, in its sole

discretion, void ths Settlement Agreement and Release without penalty.
3.
LAST
NAME

The followig Plaitiffs have agreed to volunta dismiss their clai with prjudice:
FIRST NAME

PROPERTY
905 Townsend Drive 1112 Bonfield Court 2064 Bierce Drive 2413 Kerr Drive 2420 Mohawk Trail 908 Avatar Drive

CITY
VB VB VB VB VB VB VB VB VB

zip
23452 23454 23454 23454 23454 23454 23452 23456 23454 23322 23451
23322 23322
23451 23322 23454 23454

COMPLAINT
WHITLEY BEAGLE WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY
WHITLEY WHITLEY WHITLEY WHITLEY

Abernethy Agresti Cassidy Correia Cox Doe
Elms Holava

J.R. & Evelyn
Danny & Robin

Kevin & Adele Jeffrey & Gloria
Wìllam & Connie

Jon
Robert & Phylls

266 Raintree Road
2912 Wìlcox Drive 1141 Whitestone Way 729 Beckley Lane

Scott & Cathy

Jansohn
Mils Neal

Deanne
Samuel & Mary

Ches.
VB

Nancy
Randolph P. &

Parker Reeves

Laura
Alan & Tammy

1268 Laskin Road 717 School House Road 1304 Fernham Lane
1152 VB Boulevard

Ches. Ches.
VB

Ross
Smith Smith

Ruby
John & Jane

#101
1313 Mockingbird Lane 2200 Oak Drive 1278 Eaglewood Drive
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Ches.
VB VB

Paul
Darrl & Sandra

Turner

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In the event that there are additional Plaitiffs who agree to voluntaly dismiss their clais with
prejudice, the United States' payment specifed in paragaph 1 shal be reduced by $18,000.00 for

each Propert formerly or curently owned by these additional Plaitiffs.
4. In the event that there is some reason other than a Propert havig been sold that

prevents the Plaitiffs ITom conveyg the easement discussed in paragaph 8 (and attched as
Exhbit A) over a Propert, and the Plaitiffs canot correct the defect that prevents conveyance of

the easement, the United States' payment specified in paragraph 1 shall be fuer reduced by
$5,000.00 for each such Propert.

5. The United Staes' payment specified in paragaph 1 shal be reduced by $18,000.00
or formerly owned by Non-Settlig Plaitiffs.

for each of

the fist 24 Propertes curently

6. The United States' payment specified in paragraph 1 shall be fuer reduced by

$18,000.00 for each Propert in excess of 30 Propertes curently or formerly owned by Non-Setg

Plaitiffs.
7. In exchange for their share of the payment specifed in paragraph 1 and as a condition

to receivig any compensation, al Plaitiffs paricipatig in the Settement as reflected in the list
provided by Counsel for Plaintiffs (and attched as Exhbit B), and Plaitiffs' attorneys acting on
their behalf, agee to ths Settement Agreement and Release.
8. In exchange for their share of

the payment specified in pargraph 1 and as a fuer

condition to receivig any compensation, al Plaitiffs parcipatig in ths proposed settement sh

grant the United States a peretual and permanent avigation easement, in the form set fort as Exhibit

A, for their respective Properes. Each easement wi include the fu names of al owners as shown
in the land records. If the grtor of an easement is not a plaitiff, an explanation wi be provided as
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to why the grantor has authority to convey the easement (for example, the Named Plaitiff conveyed

to Curent Ower, who is grantig the easement). Plaitiffs who no longer own an interest in any
Propert that is the subject of ths litigation are exempt from the requiements of ths paragraph. See
paragrph 13, ina.
9. For each avigation easement granted, Plaitiff represent tht the grtor is the curt

owner of

the Propert, and the land described is al of

the land owned by the grantor in the Cities of
ths litigation, and that the grtor otherse

Vira Beach and Chesapeake that is the subject of

has

the authority to convey the avigation easement over the Propert. For each avigation easement
granted, Plaitiffs fuer represent that the legal description of the Propert and GPIN No. in the

easement are accurte to the best of their knowledge. The United States wil conduct and review title

searches to confi that the land described is al of the land owned by the grantor in the Cities of

Virgia Beach and Chesapeake that is the subject of ths litigation, and th the grtor otherse has

the authority to convey the avigation easement over the Propert. In the event that the United States

lears that the lega description of the Propert or the GPIN No. is inaccurteor the easement is
otherwse defective but the Plaitiffs can correct the defect, Counsel for the United States wi notify
Counsel for Plaitis who hereby agree to promptly tae reasonable steps to obta a corrected

easement from Plaitiffs and provide it to the United States at no additional cost to the United Stas.
10. The United States shal be responsible for the recordation of

the executed

easements.
11. Plaitiffs' counsel shal use their best efforts to obta the agreement of 100% of the

Plaitis to parcipate in ths settement. In the event that there is less than 100% parcipation by

Plaitiffs in ths settlement, the United States may, in its sole discretion, void tls Settement
Agreement and Release without penalty uness the Plaitiffs who agree to the Settement Agreement
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and Release own, in tota, at least the followig percentages of

Propertes:

a) At least 96% of

the

Propertes; and

b) At least 98% of

al Propertes located inside the 75 decibel ("dB") Day-night Average Sound Level ("DNL") noise contour as measured by the BASE 2000 contours (i.e., the modeled 2000 baselie noise contours from the Final Envionmenta Impact Statement for the Introducton ofF/A-18 Elf (Super Hornet) Aicraft to the East Coast of the United States); and
12 of

c) Al

the followig "Test Case Propertes" that were to be the subject

of the intial tral:

i. Theodore Digle, 912 Carolia Avenue, Virgia Beach, Virgia 23451;
ii. Hal and Elaie Levenson, 2004 Brickell Cour, Virgia Beach,
Virgia 23454;

ii. Caroll Lindsay, 2709 East Kigs Road, Virgia Beach, Virgia 23452;
iv. Herbert and Bett Van Nostrand 305 Corvette Lane, Virgia Beach,
Virgia 23452;

v. James and Virgia Riddick 1805 Loganberr Cour, Virgia Beach, Virgia 23453;

vi. Eddie and Elibeth Waterman, 2244 Windy Pines Bend, Virgia Beach,
Virgia 23456;

vii. Sara Hoag, 130 1 Brant Road, Virgia Beach, Virgia 23451;
vi. Wiliam and Bett Capps, 409 Palets Road, Virgia Beach, Virgia

23454;

ix. Eileen May, 620 Little Neck Road, Virgia Beach, Virgia 23452;

x. Kenneth and Tamy Hi 925 Lamplight Lane, Virgia Beach, Virgia
23452;

xi. Michael and Diane Lear, 3209 Chicory Cour Virgia Beach, Virgia
23453; and
xii. Sean and Graciela Ryan, 1856 Pathder Drve, Virgia

Beach, Virgia

23454.
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12. Pror to the execution of

ths agreement, Counsel for Plaitiffs shal haye provided to

the United States:
a) A list of al Plaitiffs who agee to parcipate in the settement. For each

Plaitiff who agees to parcipate in the settlement, the followig addtional inormation has been provided:
i. The address of each Plaitiffs Propert or Propertes tht ar the subjec of

ths litigation curently or formerly owned by the Plaitiff; and

n. A statement identifyg whether each Propert is located inide the 75dB
DNL noise contour as measured by the BASE 2000 metrc; and
ii. A statement identifyg whether an easement can be granted for the

resPetive Plaitiffs Propert or propertes. If an eaement caot be grted for the Proper or Propertes, the statement shall indicate that the Proper or
Properes were sold either before or afer March 20,2007; and
iv. A statement identifyg whether the propert was one of

the 12 "Test

Case Propertes"; and
v. A statement identifyg which of the nie related cases the Plaitiff

was a

named par.

b) With respect to the Non-Settg Plaitiffs, and prior to the execution of ths
agreement, Counsel for Plaitiffs shal have provided to the United States:

i. A statement identig whether each Non-Settg Plaitis Propert is
located inide the 75dB DNL noise contour as measured by the BASE 2000
metrc; and

ii. A statement identig whether the Non-Settg Plaitiff curently own
the Propert. If the Non-Settg Plaiti no longer owns the Propert or

Propertes, a statement identig the date that the Propert or Propertes
sold.

13. The pares acknowledge that some of the Plaitiffs are not able to convey the
avigation easement discussed in paragaph 8 (and attached as Exhbit A) to the United States becaus
they conveyed their Propert or Propertes. Such Plaintiffs shal be included as parcipati
plaitiffs for puroses of determg the tota percentage of parcipation discussed in paragh 11,

assumg these Plaitiffs, or their attorneys actig on Plaitiffs' behalf, execute ths Settlement
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Agreement and Release, and provided that such Plaitiffs provide to the United States legally
suffcient documentation evidencing that they conveyed their Propert or Propertes prior to March

20, 2007.

14. Each Plaintiff that grants to the United States the easement discussed in paragaph 8
(and attched as Exhbit A), covenats and agrees to warant and defend said easement and rights of

the United States and its assigns arsing ITom the easement agaist the lawf claim and demads of

al persons whatsoever in accordace with the general waranty contaied with the eaement. Ths
waranty and indemncation is not in any way limted by the fact that the United States conducted
title search reviews discussed in paragraph 9.
15. As discussed in paragraph 1, the settement payment shal be made payable tò the Jet

Noise Lawuit Setement Trust Account. A porton of ths settement payment, specifical
$5,000.00 for each of

the 1,353 Propertes over which the United States is expected to acquie an

avigation easement, is contigent upon the United States reviewig the title searches as specified in

paragraph 9. Counsel for plaitiffs agree to reta Six Million, Seven Hundred Six-Five Thousad
Dollars ($6,765,000.00) of

the settlement payment hereinafterreferred to as "Contigent Funds", in

the Jet NOÍYe Lawuit Settement Trust Account, pendig the United States' review of the title
searches. Counsel for the United States wi authorie disbursement of the Contigent Funds in four
intaents as the title search reviews progress and it appeas tht easements can be acquied over

the Propertes. The fist thee disbursements of

the Contigent Funds wi be in instalents of

Two

Millon Dollars ($2,000,000.00) each. Each of

these thee installments

corresponds with reviews of

the title searches of 400 Properes for a tota of 1,200 Propertes. The four and fial disburement
wi be the remaig Seven Hundred Six-Five Thousand Dollar ($765,000.00), as the fial

153

title search reviews are completed, includig any corrections made by Plaitiffs, and it appears that
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easements can be acquied over al

1,353 Propertes. As specified in paragraph 9, Counel for the

United States wi notify Counsel for Plaitiffs of any inaccuracies or defects it uncover that need to

be corrected durg the review. In the event that there is some reason other th a Propert havig

been sold after March 20, 2007 that prevents the Plaitiffs from conveyig the easement and
Plaitis canot correct it as specified in paraph 9, Counsel for Plaitiffs are not autoried to

disburse $5,000.00 for each such Propert, and ths porton of

the Contigency Funds will be made

payable to the United States.

16. FOR AND IN CONSIDERATION of payment by the United States to the
Plaitiffs as set fort in ths Settlement Ageement and Release, and subject to the conditions on

such payment set fort herein, and for ful and fial settement of the matter with respect to
Plaitiffs, suffciency of

which is acknowledged, the undersigned attorneys actig on Plaitiffs'

behalf, or the undersigned Plaitiffs, on behalf of ourelves, our successors, heir, executors,
admstrators, and assigns, do RELEASE, REMISE, ACQUIT, AN FOREVER

DISCHAGE, the United States of Amerca, of and ITom any and al causes of action, clai,
demands, costs, suits at law, suits in equity, and al clais of any natue and kid whatsoever,
known or unown, foreseen or unoreseen, which the undersigned had or may in the
futue be entitled to have agaist the pares released and naed above, related to the facts as
alleged in the Complait fied in the above-captioned lawsuit

and the Complaits in the eight

related cases, as well as any potential clai that cowd have been brought relatig to any and all
flght operations at NAS Oceana or NALF Fentress at any tie prior to executig ths Settement

Ageement and Release.
17. The pares understad that ths settement is a compromise of disputed clais,
and that any and all payments or actions on account of or in any way related to same are not to
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be constred as an admssion of liability by the United States, which liabilty is expressly denied,

nor shal the terms of ths settement be used as precedent in any futue litigation or other offcial
proceeding.
18. In constrg or interpretig ths Settlement Agreement and Release, no one par

sha be deemed to have drafted or created ths Settement Agreement and Release, and any

perceived uncertainty or ambiguty shal not be constred or interpreted agait anyone par to
ths Settement Agreement and Release.

19. Every provision of

ths Settement Agreement and Release shal be deemed

severable from every other provision; if any provision of ths Settlement Agreement and Release

is later deemed ilegal, invald or unenforceable, in any respect, the valdity, legalty and

enforceability of the remaig provisions contaed herein shal not in any way be afected or
impaied thereby, and such invald, ilegal or unenforceable provision shall be deemed modified

to the extent necessar to render it vald whie most nearly preservg its origial intent.

Date:j)'1 It/i )-o-

Date: MM1 lS-i2001'
Steven D. Bryant Attorney for Defendat an
Authori Representative

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