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183887
MUNICIPAL ORDER NO. 1812
A MUNICIPAL ORDER APPROVING AND AUTHORIZING THE EXECUTION OF
A SETTLEMENT AGREEMENT AND MUTUAL RELEASE AND A NOTICE OF
LEASE TERMINATION WITH MACCO ORGANIQUES CORPORATION, A
KENTUCKY CORPORATION, AND MACCO ORGANIQUES INC., A CANADIAN
CORPORATION
WHEREAS, the City of Paducah, Kentucky (the "City") and the McCracken County, Kentucky
(the "County") are the owners of certain real estate located within Industrial Park West of the City of
Paducah, McCracken County, Kentucky, and generally known as 5455 Commerce Drive, Paducah,
Kentucky (the "Leased Premises"), which they leased to Macco Organiques Corporation, a Kentucky
corporation ("MOC"), pursuant to the terms and conditions of a Lease Agreement dated May 31, 2013 (the
"Lease"); and
WHEREAS, on or about April 11. 2013 Macco Organiques Inc., a Canadian corporation ("MOP'),
executed a Memorandum of Understanding with the City, the County, Paducah -McCracken County
Industrial Development Authority ("IDA"), and G.P.E.D.C., Inc., doing business under the assume name
of the Greater Paducah Economic Development Council ("GPEDC")(the City, the County, the IDA, and
the GPEDC are hereinafter collectively referred to as the "Paducah Entities"); and
WHEREAS, the MOU and the Lease were binding commitments on the part of MOI and MOC
(collectively, "Macco") to develop and locate a public project on the Leased Premises; and
WHEREAS, Macco has indicated that they would not proceed with the commitments and
investments contemplated under the MOU and Lease by letter on September 4, 2014;
WHEREAS, the Paducah Entities have asserted claims against seeking damages for alleged breach
of the MOU and Lease; and
WHEREAS, the Paducah Entities and Macco have reached a settlement and compromise as to any
and all claims and disputes that exist between the parties and have further agreed to a full and complete
termination of the MOU and the Lease; and
WHEREAS, it is beneficial for the City to approve and authorize the execution of the Settlement
Agreement and Mutual Release and a Notice of Lease Termination with Macco with regard to such
matters.
NOW, THEREFORE, IT IS HEREBY ORDERED as follows:
Section 1. Authorization. The Board of Commissioners ofthe City ofPaducah hereby approves and
the Mayor of the City of Paducah, Kentucky, is hereby authorized and directed to execute the Settlement
Agreement and Mutual Release and a Notice of Lease Termination with Macco in substantially the form
attached hereto as Exhibit A and made part hereof
Section 2. Effective Date. This Order shall be in full force and effect on and after the date as
approved by the Board of Commissioners of the City of
ATTEST:
City Clerk
Introduced by the Board of Commissioners, January 20, 2015
Adopted by the Board of Commissioners, January 20, 2015
Recorded by City Clerk, January 20, 2015
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183680cLEAN
1-14-15D&K
SETTLEMENT AGREEMENT AND RELEASE
This is a final and complete Settlement Agreement and Mutual release of claims between
the City of Paducah (the "City"), McCracken County ("the County"), Paducah -McCracken
County Industrial Development Authority ("IDA"), G.P.E.D.C., Inc., doing business under the
assume name of the Greater Paducah Economic Development Council ("GPEDC")(the City, the
County, the IDA, and the GPEDC are hereinafter collectively referred to as the "Paducah
Entities"), and Macco Organiques Corporation, a Kentucky corporation ("MOC"), and Macco
Organiques Inc., a Canadian corporation ("MOI"), (MOC and MOI are hereinafter referred to
collectively as "Macco") (the Paducah Entities and Macco are collectively referred to herein as
the "Parties"), for themselves, their respective affiliates and current and former and former
members, partners, representatives, directors, officers, attorneys, insurers, agents, and successors.
This Settlement Agreement and Release is referred to below as "Agreement" and is made as of
, 2015.
WITNESSETH
WHEREAS, MOI executed a Memorandum of Understanding with the GPEDC, the IDA,
the City and the County on or about April 2013 ("MOU");
WHEREAS, MOC, as lessee, executed a Lease Agreement with the IDA, as lessor, on or
about May 31, 2013 ("Lease");
WHEREAS, IDA, as lessor, subsequently assigned all of its rights, title, interests,
warranties, covenants, duties, obligations and undertakings under the Lease to the City and the
County; and
WHEREAS, Macco indicated that it would not proceed with the investment contemplated
under the MOU and Lease by letter on September 4, 2014;
WHEREAS, the Paducah Entities have asserted claims against Macco through their letters
dated October 3, 2014, November 7, 2014, and November 24, 2014 seeking damages for alleged
breach of the MOU and Lease (the "Letters");
WHEREAS, the Parties desire to settle and compromise any and all claims and disputes,
known and unknown, that existed between the Parties, whether or not arising from the MOU,
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Lease, or set forth in the Letters, or were or could have arisen from the MOU, Lease or set forth
in the Letters,
Now, THEREFORE for good and valuable consideration, the receipt and sufficiency of
which is hereby fully acknowledged by the Parties, including the payment and mutual release set
forth in the Agreement, the Parties mutually agree as follows:
1. Payment of Settlement Proceeds. Within ten (10) days after receiving the fully
executed Settlement Agreement and Release, Macco shall pay jointly to the Paducah Entities the
sum of One Hundred Twenty One Thousand and Six Hundred Seventy Three Dollars
$121,673.00. Such payment shall be made payable to "Denton & Keuler, LLP, on behalf of City
of Paducah, McCracken County, and G.P.E.D.C., Inc." and shall be wired to account number 02-
3325-0, with the following instructions: See attached Wire Transfer Information Sheet.
2. Termination of Lease. Within three (3) days of receiving the Settlement
Proceeds described above in paragraph 1 of this Agreement, the Paducah Entities shall execute
and deliver to Macco a Notice of Lease Termination that terminates the Lease and all future
obligations of Macco and the Paducah Entities under the Lease or MOU and is in the form
substantially similar to that attached hereto as Exhibit A.
3. Release of Macco by the Paducah Entities. In consideration of the promises
contained in this Agreement, the Paducah Entities do each hereby release and discharge Macco
from all known and unknown claims, grievances and demands whatsoever in law or equity,
which the Paducah Entities have had or may now have against Macco for any cause whatsoever,
including, but not limited to, all claims arising from the MOU, Lease or asserted in the Letters or
which could have arisen from the MOU, Lease, or asserted in the Letters.
4. Release of the Paducah Entities by Macco. In consideration of the promises
contained in this Agreement, Macco does hereby release and discharge the Paducah Entities from
all known and unknown claims, grievances and demands whatsoever in law or equity, which
Macco has had or may now have against any of the Paducah Entities for any cause whatsoever, ---
including, but not limited to, all claims arising from the MOU or Lease or which could have
arisen from the MOU or Lease.
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5. Denial of Wrongdoing. By their signatures below, the Parties each acknowledge
that the undertakings of any person or entity under this Agreement are not, and shall not be
construed as, any admission of liability or wrongdoing on the part of any party, and that this
dispute has been simply to terminate the continued costs and expense, and business disruption
and diversion of management resources, of further litigation.
6. Tax Consequences and Attorneys' Fees. The Parties each agree to be
responsible for their own tax consequences and costs and attorneys' fees arising out of the
Actions or this Agreement.
7. Entire Agreement. By their signatures below, the Parties each acknowledge that
this Agreement constitutes the entire agreement between them with respect to its subject matter,
and supersedes and replaces any previous or contemporaneous representations or agreements,
whether oral or written, and may not be amended or modified except by agreement set forth in a
written memorandum executed by and between the Parties. The Parties further acknowledge that
they and their counsel have participated jointly in the negotiation and preparation of this
Agreement, and accordingly, no rule of construction shall apply against any Party or in favor of
any Party. Instead, this Agreement shall be construed as if the Parties jointly prepared this
Agreement, and any uncertainty or ambiguity shall not pursuant to any rule of construction be
interpreted against one party and in favor of any party.
8. No Presumption. The Parties acknowledge and agree that this Agreement was
drafted mutually by the Parties and shall, in all cases, be interpreted as a whole according to its
fair meaning and not strictly for or against either of the Parties. If any ambiguity or question of
intent or interpretation arises, 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.
9. Counterparts Acceptable. This Agreement may be executed in counterparts by
the parties, and a facsimile or PDF file signature shall be deemed an original signature for
purposes of executing this Agreement.
10. Miscellaneous Provision. This Agreement shall be construed under the laws of
the Commonwealth of Kentucky. Any suit relating to this agreement shall be filed in the United
States District Court for the Western District of Kentucky, Paducah Division if jurisdiction
El
288
exists. If no federal jurisdiction exists, such suit shall be filed in the McCracken Circuit Court.
11. Receipt of Proceeds. It is agreed that the release by the Paducah Entities is not
effective until the Paducah Entities receives full and clear, the proceeds referenced herein.
Signed this day of . 2015:
[Signatures are on the following pages]
5
CITY OF PADUCAH, KENTUCKY
Title
COMMONWEALTH OF KENTUCKY
ss:
COUNTY OF
SUBSCRIBED and SWORN TO before me by
City of Paducah this _ day of 92015.
Notary Public State -at -Large
My Commission expires:
0
, --
on behalf of the
W1
290
MCCRACKEN COUNTY, KENTUCKY
Title
COMMONWEALTH OF KENTUCKY
ss:
COUNTY OF
SUBSCRIBED and SWORN TO before me by , on behalf of
McCracken County, this day of , 2015.
My Commission expires:
Notary Public State -at -Large
7
PADUCAH-MCCRACKEN COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY
I:4
Title
COMMONWEALTH OF KENTUCKY )
ss:
COUNTY OF MCCRACKEN )
SUBSCRIBED and SWORN TO before me by ,
[title] on behalf of the Paducah -McCracken County Industrial Development
Authority this day of 92015.
My Commission expires:
Notary Public State -at -Large
8
291
292
G.P.E.D.C., INC. D/B/A THE GREATER
PADUCAH ECONOMIC DEVELOPMENT
COUNCIL
Title
COMMONWEALTH OF KENTUCKY )
ss:
COUNTY OF MCCRACKEN )
SUBSCRIBED and SWORN TO before me by ,
[title] on behalf of G.P.E.D.C., Inc. d/b/a the Greater Paducah Economic
Development Council, this day of , 2015.
My Commission expires:
Notary Public State -at -Large
E
MACCO ORGANIQUES, INC.
A CANADIAN CORPORATION
By_
Title
STATE OF
ss:
MGIFQIp GA
COUNTRY OF
MACCO ORGANIQUES CORPORATION
A KENTUCKY CORPORATION
By
Title
SUBSCRIBED and SWORN TO before me by ,
[title] and [title]on behalf of
above referenced Macco Organiques Corporation and Macco Organiques, Inc. this day of
, 2015.
My Commission expires:
Notary Public
10
293
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294
EXHIBIT A
NOTICE OF LEASE TERMINATION
THIS NOTICE OF LEASE TERMINATION made and executed on this day
of , 2015, by and between by and between CITY OF PADUCAH, KENTUCKY,
a municipal corporation of the second class existing under the laws of the Commonwealth of
Kentucky, and a body politic and corporate, with a principal mailing address of Post Office Box
2267, Paducah, Kentucky 42002-2267 (the "City"), and COUNTY OF MCCRACKEN,
KENTUCKY, a body politic and corporate, with a principal mailing address of 300 South 7th
Street, Paducah, Kentucky 42003 (the "County"), (the City and the County collectively,
hereinafter referred to as the "Lessor"), "), PADUCAH-MCCRACKEN COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY, with a principal mailing address of Post Office
Box 1155, Paducah, Kentucky 42002-1155 (the "IDA"), G.P.E.D.C., INC., DOING BUSINESS
UNDER THE ASSUME NAME OF THE GREATER PADUCAH ECONOMIC
DEVELOPMENT COUNCIL, with a principal mailing address of Post Office Box 1155,
Paducah, Kentucky 42002-1155 the ("GPEDC")(the Lessor, the IDA, and the GPEDC are
hereinafter collectively referred to as the "Paducah Entities") and MACCO ORGANIQUES
CORPORATION, a Kentucky corporation, with a principal mailing address of 100 McArthur,
Valleyfield, Quebec, Canada J6S 4M5 (hereinafter referred to as the "Lessee.") and MACCO
ORGANIQUES INC., a Canadian corporation, with a principal mailing address of 100 McArthur,
Valleyfield, Quebec, Canada J6S 4M5 ("MOI"), (the Lessee and MOI are hereinafter referred to
collectively as "Macco") (the Paducah Entities and Macco are collectively referred to herein as
the "Parties").
WITNESSETH:
WHEREAS, MOI executed a Memorandum of Understanding with the Paducah Entities
on or about April 11, 2013 ("MOU");
WHEREAS, on May 31, 2013, the IDA, as lessor, and the Lessee did enter into a Lease
Agreement (the "Lease") regarding the Lessee's lease of certain real estate located within
Industrial Park West of the City of Paducah, McCracken County, Kentucky, which is more
particularly described on Exhibit A-1 (the "Leased Premises"); and
WHEREAS, the IDA, as lessor, subsequently assigned all of its rights, title, interests,
warranties, covenants, duties, obligations and undertakings under the Lease to the Lessor; and
WHEREAS, the Paducah Entities and Macco have reached an agreement as to the full
and complete termination of the Lease including without limitation any right of first refusal to
purchase the Leased Premises therein and the MOU; and
WHEREAS, the Parties do now desire to formalize the termination of the Lease and the
MOU, in writing.
NOW, THEREFORE, in consideration of the foregoing premises and to carry out and
satisfy the covenants, conditions and promises outline in the settlement agreement and release
made and entered into by and between the Paducah Entities and Macco on even dated herewith,
the adequacy and sufficiency of which is hereby acknowledged by the Parties, the Parties do
hereby covenant and agree as follows:
1. Termination of the Lease and the MOU. It is hereby agreed by and between the
Paducah Entities and Macco that the Lease concerning the Leased Premises, including without
limitation the right of first refusal to purchase the Leased Premises, and the MOU are hereby
terminated, and of no legal force and effect, as of the Effective Date of this Agreement. Further,
the Parties do hereby each release the other from any and all liability and obligations in regard to,
or arising out of, the Lease and the MOU, incorporated into the Lease.
2. Effective Date. The effective date of this Termination of Lease Agreement shall
11
be 2015.
IN WITNESS WHEREOF, the Parties hereto have set their hands.
[Signatures are on the following pages.]
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LESSOR:
CITY OF PADUCAH, KENTUCKY
Title
STATE OF KENTUCKY
COUNTY OF MCCRACKEN
The foregoing instrument was signed, sealed and acknowledged before me on this
day of 2015, by (title)
of the City of Paducah, Kentucky.
My commission expires.
NOTARY PUBLIC, STATE AT LARGE
13
LESSOR:
COUNTY OF MCCRACKEN COUNTY,
KENTUCKY
By
Title
STATE OF KENTUCKY
COUNTY OF MCCRACKEN
The foregoing instrument was acknowledged before me on this day of
, 2015, by
(title), of County of McCracken, Kentucky.
My commission expires
NOTARY PUBLIC, STATE AT LARGE
14
A, I
IDA;
PADUCAH-MCCRACKEN COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY
By
Title
COMMONWEALTH OF KENTUCKY )
ss:
COUNTY OF MCCRACKEN )
The foregoing instrument was acknowledged before me by
[title] on behalf of the Paducah -McCracken
County Industrial Development Authority this day of , 2015.
My Commission expires:
Notary Public State -at -Large
15
ME
GPEDC:
G.P.E.D.C., INC. D/B/A THE GREATER
PADUCAH ECONOMIC DEVELOPMENT
COUNCIL
By
Title
COMMONWEALTH OF KENTUCKY )
ss:
COUNTY OF MCCRACKEN )
The foregoing instrument was acknowledged before me by
, [title] on behalf of G.P.E.D.C., Inc. d/b/a the
Greater Paducah Economic Development Council, this day of , 2015.
My Commission expires:
Notary Public State -at -Large
16
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300
LESSEE:
MACCO ORGANIQUES CORPORATION,MACCO ORGANIQUES, INC.,
A KENTUCKY CORPORATION A CANADIAN CORPORATION
By By
Title Title
STATE OF )
COUNTY OF )
COUNTRY OF )
The foregoing instrument was acknowledged before me on this
, 2015, by ,
(title), of Macco Organiques Corporation, a Kentucky corporation.
My commission expires
NOTARY PUBLIC,
STATE OF
COUNTY OF )
COUNTRY OF )
The foregoing instrument was acknowledged before me on this
2015, by ,
(title), of Macco Organiques, Inc., a Canadian corporation.
My commission expires
This instrument prepared by:
DENTON & KEULER, LLP
P. O. Box 929
Paducah, KY 42002-0929
NOTARY PUBLIC,
17
day of
day of
301
EXHIBIT A-1
LEASED PREMISES
Project Site: 5455 Commerce Center
Paducah, Kentucky
BEING TRACT C, CONSISTING OF 10.2007 ACRES, IN
INDUSTRIAL PARK WEST, AS SHOWN ON THE WAIVER
OF SUBDIVISION PLAT AT INDUSTRIAL PARK WEST TO
CREATE NEW TRACT F AND REVISE TRACT C OF
RECORD IN PLAT SECTION "L," PAGE 1308, IN THE
MCCRACKEN COUNTY COURT CLERK'S OFFICE.
SUBJECT TO DECLARATION OF PROTECTIVE
COVENANTS AND RESTRICTIONS FOR INDUSTRIAL
PARK WEST OF RECORD IN DEED BOOK, 1186, PAGE 67,
AND RERECORDED IN DEED BOOK 1186, PAGE 643, IN
THE AFORESAID CLERK'S OFFICE.
BEING A PART OF THE SAME PROPERTY CONVEYED TO
CITY OF PADUCAH, KENTUCKY AND COUNTY OF
MCCRACKEN, KENTUCKY, BY DEED DATED APRIL 9,
2014, OF RECORD IN DEED BOOK 1274, PAGE 735, IN THE
MCCRACKEN COUNTY COURT CLERK'S OFFICE.
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