IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF

IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
OASIS GOODTIME EMPORIUM I,
INC., d/b/a OASIS; and MPC,
INC., d/b/a STROKERS; and
ROOSTER'S BARNYARD ETC.,
INC., d/b/a ROOSTERS; and
FREESE II, INC., d/b/a BLAZIN;
SADDLES; and JANICE LOWE,
d/b/a JAZZY T'S;
Plaintiffs,
CIVIL ACTION
FILE NO. 99-CV-14075-1
VS.
DEKALB COUNTY, GEORGIA; THE
BOARD OF COMMISSIONERS OF
DEKALB COUNTY, GEORGIA;
ELAINE C. BOYER, GALE
WALLDORFF, JACQUELINE SCOTT,
KEN DAVIS, WILLIAM BROWN,
JUDY YATES, and PORTER
SANFORD, III, individually
and in their official
capacities as Commissioners
of DeKalb County, Georgia;
and LIANE LEVETAN, Chief
Executive Officer of DeKalb
County, Georgia, individually;
and in her official capacity
as Chief Executive Officer of !
DeKalb County, Georgia,
Defendants.
FIRST AMENDED AND EXTENDED SETTLEMENT AND RELEASE AGREEMENT
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PART A: RELEASE
FOR AND IN CONSIDERATION of the granting of certain "nonconforming status" as set forth in detail in Part B of this
agreement by DeKalb County, Georgia, the receipt and sufficiency
of which is hereby acknowledged, and for other good and valuable
consideration, the undersigned Follies (Surrey R. White, Steven
Youngelson, and Jade Grossman), Rooster's Barnyard (Barbara F.
Archibald and Peter G. Archibald, Jr.), Oasis Goodtimes Emporium
(Barbara J. Holcomb), The Pink Pony (Jack E. Galardi), Strokers
Club (Terri Fischer), Shooter's Alley (Joaquin J. Ramu, Jr.),
Blazin Saddles [now known as Club Blaze] (Maurine Whorton), and
Pin Ups (Jessica R. Lee and James W. Lee, Jr.) (hereinafter
jointly "Adult Clubs" or individually 'Adult Club') hereby
acknowledge full accord, satisfaction and settlement of and
hereby release any and all actions, causes of action, damages or
claims for damages, demands, claims and rights of whatsoever
kind and nature
which
are claimed against all DEFENDANTS,
specifically including but not limited to DeKalb County,
Georgia; The Board of Commissioners of DeKalb County, Georgia;
Elaine C. Boyer; Gale Waldorff; Jacqueline Scott; Ken Davis;
William Brown; Judy Yates; Porter Sanford, III; Jeff Rader;
Larry Johnson; Burrell Ellis; Lee May; Kathie Gannon; Connie
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Stokes; Vernon Jones, Chief Executive Officer of DeKalb County,
Georgia; Liane Levetan, Former Chief Executive Officer of DeKalb
County, Georgia; The Alcoholic Beverage Review Board of DeKalb
County, Georgia; Tom Black; Keith Moss; Morgan Wheeler; David
Pike; Robert Johnson; Larry Songer, Former Alcohol License
Manager of DeKalb County; Major Sadler, Foitter Deputy Finance
Director; William J. Linkous, III, County Attorney; Jonathan
Weintraub, Former County Attorney; Jane Doe's; and John Doe's;
and all other officers, officials, employees, and agents of
DeKalb County, individually and in their official capacities,
(hereinafter "DEKALB"), in Civil Action File Numbers 99-CV14075-1, 00-CV-6749-1, 00-CV-6796-1, 00-CV-1459-1, 00-CV-6797-1,
00A74193-6,
1 99-CV-3301-RLV,
1 : 99-CV-3043-RLV,
1 : 99-CV-3328 -
RLV, 1:00-CV-0043-RLV, styled as shown in the captions to this
agreement and in any other pending or contemplated civil action
by the above-referenced ADULT CLUBS.
By entering into this
Release, the ADULT CLUBS shall and do hereby release DEKALB for
any and all state and federal claims which have been or could
have been asserted or which in any way relate to or arise out of
or could have related to or arisen from the ADULT CLUBS'
existence, operation or doing business or engaging in activity
of any kind within the boundaries of DeKalb County, for which it
could have been claimed that DEKALB, or any of its officials,
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employees, officers or agents, are legally liable or subject to
any claim whether for equitable or legal relief.
In further consideration of the status granted hereunder,
the undersigned intend, represent and warrant that any and all
claims that were and/or could have been asserted by or on behalf
of the ADULT CLUBS arising out of and by reason of the acts
alleged in the Complaints filed in the referenced civil actions
are hereby released, relinquished, dismissed with prejudice,
settled and satisfied.
Having received and acknowledged the
above-stated consideration as full compensation for and on
account of any and all alleged injuries and damages which it is
claimed were sustained or could be claimed- to have been
sustained as a result of the ADULT CLUBS' existence, operation,
doing business or engaging in activity of any kind within the
boundaries of DeKalb County, the
ADULT CLUBS
hereby satisfy and
settle such claims and hereby release and forever discharge
DEKALB, and its former and present officials, agents, servants,
heirs,
successors,
administrators,
officers, employees,
directors, personal representatives and assigns, and all other
departments, agencies, corporations, companies and persons from
any and all claims, actions, demands and causes of action of
whatsoever kind and nature arising out of the events alleged in
the Complaints, including, but not limited to rights relating in
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claims that the Adult Clubs may now have or ever had against
DEKALB.
PART B: ADULT NON-CONFORMING STATUS
Whereas,
DeKalb
County
(hereinafter
"the
County")
ordinances currently prohibit the sale of alcohol in adult
entertainment establishments and erotic entertainment/dance
establishments, which prohibition is set forth in Code of DeKalb
County § 15-402(0), ("Adult Entertainment Ordinance"), the
County hereby individually and for its successors and assigns
grants "non-conforming status" to the Adult Clubs, currently
operating as such adult entertainment establishments and/or
erotic entertainment/dance establishments as currently defined
in the Code of DeKalb County § 15-401. This agreement shall be
binding upon DeKalb County, its successors, transferees, assigns
for the terms specified herein. This agreement shall be binding
upon any governmental body to which the County transfers
regulatory control over the matters herein, expressly including
any municipality which obtains jurisdiction by incorporation or
annexation.
The allowable uses herein shall be considered as
ongoing actual uses by any such successor or assign. For
purposes of this agreement the term "non-conforming status"
shall mean that the Adult Clubs will be permitted to sell
alcoholic beverages (subject to all other laws and regulation of
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alcohol) and to provide adult entertainment in the form of nude
dancing or live nude performances. For the purpose of this
agreement only the Adult Clubs shall be licensed with respect to
the non-conforming status granted herein.
The non-conforming
status granted herein shall be for a term of fifteen (15) years
effective January 1, 2007, unless determined otherwise by a
court of competent jurisdiction, and shall be renewable by
consent of the parties for an additional ten (10) year term
following the expiration of the initial term. At the end of
such term the parties shall no longer be bound by the terms of
this agreement, and this agreement shall automatically terminate
no later than December 31, 2021 or December 31, 2031 if extended
by the parties.
However, the parties may agree to extend the
agreement on its current terms or on other mutually agreed terms
in writing upon approval by the governing authority of DeKalb
County.
The term "non-conforming status" shall be strictly
limited to the meaning specifically set forth in this agreement,
and should have no other meaning or create no other right than
to allow alcohol to be served or sold at the same location as
the adult nude performances.
Sections 16-60 to 16-64 of DeKallo County's Code of
Ordinances currently prohibit public nudity in DeKalb County,
and the County hereby grants the Adult Clubs non-conforming
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status as defined in this agreement with respect to such
ordinance and any other ordinance banning public nudity, which
shall render the Adult Clubs exempt from the application of such
prohibition to run concurrently with the period of time that the
Adult Clubs are permitted to sell alcohol pursuant to the nonconforming status.
Non-conforming status is not extended by
this agreement to any adult entertainment establishment that is
not currently operating in DeKalb County and that is not a party
to this Settlement.
As further consideration for the granting
of non-conforming status the parties agree as follows:
1.
The Adult Clubs shall remain subject to all applicable
provisions in the Adult Entertainment Ordinance and
the DeKalb County Code of Ordinances unless specified
otherwise in this Agreement.
2.
Pursuant to Code of DeKalb County § 4-1 et. seq.
("Alcoholic Beverage Ordinance"), the Adult Clubs
shall pay the maximum annual license fee allowed by
st te law for acquiring the necessary alcoholic
beverage license. For year 2007, the fee shall be the
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ma i um amount allowed by Georgia Law and shall be due
on June 1, 2007. In order to retain non-conforming
status Adult Clubs are required to maintain a current
alcohol license.
3.
If any Adult Club changes its location, use or size as
it existed on January 1, 2007, in any manner other
than as explicitly and specifically allowed by this
Agreement, then the Adult Club shall no longer be
entitled to non-conforming status under this
agreement.
4.
The non-conforming status granted hereunder may not be
sold, given, transferred or assigned by the current
ownership of any Adult Club. The Adult Clubs granted
non-conforming status herein may change ownership if
the new owner meets the requirements of the County
ordinances,
including
the
Alcoholic
Beverage
Ordinance, and if the new ownership agrees to be bound
by the terms of the settlement agreement.
5.
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Ordinance in any manner, any new ownership of an Adult
Club, if desired by the new owner and approved by the
County, shall be granted the non-conforming status
pursuant to the terms of this Agreement. Non-
conforming status will not be extended to any new
ownership of an Adult Club where any individual having
an interest either as owner, partner, principal
stockholder, directly or indirectly beneficial or
absolute, shall have been convicted within ten (10)
years immediately prior to the acquisition of
ownership for any felony or misdemeanor of moral
turpitude under any federal
or state law of the United
States or any municipal
ordinance except traffic
violations or for whom an
outstanding warrant exists
on which service has not been effected.
6.
Any new ownership of an Adult Club seeking a license
to operate must comply with the current regulatory
scheme. In the event of the repeal of the Adult
Entertainment
Ordinance
in
any
manner,
the
requirements set forth therein will apply to any new
ownership of an Adult Club. Accordingly,
the
provisions of DeKalb County Code § 15-407, 15-
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409 (a) (1) through (a) (9) and 15-409 (a) (11) through §
15-409(b) are incorporated herein by re erence as
specific requirements of this agreement.
The Adult Clubs shall pay an annual fee during the
term of this agreement.
This fee shall be paid in
equal quarterly installments due on January 1, April
1, July 1, and October 1 of each year. The fees tor
each calendar year of this agreement shall be as
follows: $100,000 per adult club per year for the
first ten years of this agreement, and $150,000.00 per
adult club per year for the remaining five years of
this agreement. For year 2007, the Adult Clubs shall
each pay $100,000.00, made retroactive to January 1,
2007. The Adult Clubs shall have a ten (10) day grace
period from the due date of each payment in which to
tender the fee without interest or penalty. Payment
compliance with this Settlement Agreement means actual
rece pt of funds by the County.
Receipt of any
portion of the annual tee payment by the County more
than ten (10) days late shall result in the Adult Club
having its adult entertainment establishment license
and alcohol license immediately suspended by operation
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of this agreement until the quarterly payment is made.
DeKalb County may take all steps to prohibit entrance
into or operation of any Adult Club that fails to make
timely payment, and the Adult Club hereby agrees to
cease operation until payment is made. Said late
payment shall also incur interest of 12$ annually,
from the date due until date paid. Upon tendering the
late payment, including all penalties, within thirty
(30) days of the due date, the suspension shall
automatically end and the Adult Club may immediately
resume operation.
In the event that the fees become
more than thirty (30) days past due, the Adult Club
shall immediately and irrevocably lose its nonconforming status. No written notice of the Adult
Club's failure to pay is required.
8.
A certificate of non-conforming status shall be issued
on payment of the first installment of the annual fee.
9.
In the event that the Adult Entertainment Ordinance is
repealed in any manner, the Adult Clubs shall remain
liable to pay the annual fee pursuant to the terms of
this aoreement. All Adult Clubs shall be required to
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renew their licenses annually on forms nrescribed by
the County. A certificate of non-conforming status
shall be issued as long as the Adult Club is current
with its annual fee obligation and has not violated
any other provision of this agreement.
10.
All licenses granted under DeKalb County Code § 15-400
et. seq. and preserved under this agreement in the
event of repeal shall remain a mere grant of privilege
to carry on business during the term of the license
subject to all terms and conditions imposed by § 15400 et. seq. and related laws, applicable provisions
of the DeKalb County Code, other ordinances and the
terms of this agreement. In the event that § 15-406
is repealed in any manner, the requirements set forth
therein will continue to govern the Adult Clubs.
Accordingly, the provisions of DeKalb County Code §
15-406,
with the exception of
herein
incorporated
by
§
15-406(i)
reference
as
are
specific
requirements of this agreement.
11.
The Adult Clubs shall comply with the provisions of
the Code of DeKalb County § 15-402, which prohibits
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certain activities as it existed at the time that the
parties signed the May, 2001 Agreement. In the event
that said provision is repealed in any manner, then
the prohibited activities set forth in the repealed §
15-402 shall be made a part of this agreement and
shall remain prohibited by this Agreement in all of
the Adult Clubs. Accordingly, the prohibitions stated
in Code of DeKalb County § 15-402 at the time of the
execution of the May, 2001 Agreement, including
subsections (b),
(d) through (k),
(n), and (p) are
incorporated herein by reference as specific conduct
that is prohibited from occurring on the premises of
any Adult Club.
Should any Adult Club be found by
DeKalb County (in the sole discretion of the police
chief of DeKalb County) to have engaged in any
activity prohibited by §
15
- 402, then that Adult Club
shall be informed by the police chief of the
violation,
A hearing before the DeKalb County
Governing Authority will thereafter be scheduled as
soon as reasonably practicable to consider whether
there is due cause for suspending or revoking the nonconforming status granted under this agreement. The
hearing provided shall incorporate the procedures set
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forth in Code of DeKalb County, §15-418(c) merely for
the purpose of this contract, and shall create no
other legal right or interest. The decision of the
Governing Authority shall be final and not subject to
appeal or review except by certiorari to the DeKalb
County Superior Court.
12. The Adult Clubs shall remain governed by the
provisions of the Code of DeKalb County § 15-405,
including those which mandate that any and all
employees of such establishments shall be eighteen
years of age or older, be permitted and satisfy
certain requirements set forth therein. In the event
that said provision is repealed in any manner, the
requirements will continue to govern the Adult Clubs,
Accordingly, the provisions of DeKalb County Code §
15-405 are incorporated herein by reference as
specific requirements of this agreement. Should any
Adult Club be found by DeKalb County (in the sole
discretion of the police chief of DeKalb County) to
have engaged in any activity prohibited by § 15-405,
then that Adult Club shall be informed by the police
chief of the violation. A hearing before the DeKalb
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County Governing Authority will thereafter be
scheduled as soon as reasonably practicable to
consider whether there is due cause for suspending or
revoking the non-conforming status granted under this
agreement. The hearing provided shall incorporate the
procedures set forth in Code of DeKalb County, §15418(c) merely for the purpose of this contract, and
shall create no other legal right or interest. The
decision of the Governing Authority shall be final and
not subject to appeal or review.
13, Code of DeKalb County, § 15-405 shall be amended to
provide for the issuance of a single annually
renewable permit to an employee of the Adult Clubs.
Such permit will authorize the employee to work in any
of the Adult Clubs in any capacity whatsoever,
including but not limited to performers, entertainers,
waiters,
bouncers,
bartenders,
disc-jockeys
In consideration of
musicians.
afforded
convenience
by
the
the
above
and
increased
referenced
amendment, the fees for the permit will be increased
in
the
sole
discretion
of
DeKalb
County.
Specifically, the permit fee for dancers, performers
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or other providers of entertainment for
2007 is $200.
The fee for bartenders and waiters for
2007 is $100.
The County reserves the right to impose increases in
said fees during the term of this agreement and any
subsequent renewal period.
14. The Adult Clubs shall not employ or otherwise allow
any person who does not hold a valid permit, whether
under the current regulatory scheme in § 15-405 or
otherwise, to work or perform in an Adult Club.
Should any Adult Club be found by DeKalb County (in
the sole discretion of the police chief of DeKalb
County) to have violated this term the Adult Club will
be given written notice of such incident of failure to
secure or renew an employee permit. Said notice shall
be given within thirty (30) days of the County's
discovery of the same. On the occasion of the third
incident within any twelve-month period the Adult Club
shall be informed of the violation by the police
chief.
A hearing before the DeKalb County Governing
Authority will thereafter be scheduled as soon as
reasonably practicable to consider whether there is
due cause for suspending or revoking the non-
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conforming status granted under this agreement. The
hearing provided shall incorporate the procedures set
forth in Code of DeKalb County, §15-418(c) merely for
the purpose of this contract, and shall create no
other legal right or interest. The decision of the
DeKalb County Governing Authority shall be final and
not subject to appeal or review.
16. Landscaping and sign changes or requirements shall be
required as they are deemed necessary by the County's
governing authority or its representative. Upon
written notification of a sign or landscaping change
that is required under this agreement, the Adult Club
shall make the change within forty-five (45) days of
such written notice. Should any Adult Club fail to
make the required change, then that Adult Club shall
immediately and irrevocably lose the non-conforming
status granted under this agreement and cease
Only landscaping changes that are deemed
operation.
necessary for the reasonable benefit of neighboring
businesses and residents shall be requested.
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The Adult Clubs may with the appropriate building,
17.
development and other permits where required by the
Code of DeKalb County, renovate and reconstruct their
premises as necessary, however, except as allowed in
paragraph 21 below, the amount of space devoted to
adult entertainment shall not be enlarged, consistent
with Part B, Paragraph 3 herein. The Adult Clubs
nonetheless, shall be required to comply with all
permitting and regulatory requirements of DeKalb
County, except as to the non-conforming status
specifically set forth in the agreement.
18.
Nothing in this Agreement shall prohibit DeKalb County
from adopting, amending or otherwise regulating any
and all matters relating to the operation of Adult
Clubs. Only the specific exclusions set forth in this
Agreement apply to the operation of the Adult Clubs,
and the Adult Clubs will be required to comply with
all current and future laws unless stated otherwise.
19.
Nothing in this Agreement shall create any vested
rights in the Adult Clubs to operate.
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20.
For the purpose of this Agreement, any and all
notices to be given hereunder shall be in writing and
shall be deemed given when deposited in the United
States Mail, post prepaid, cer ified and addressed to
current address of the respective Adult Club, as
reflected in the Adult Club's most recent business
license application on file.
21.
Although the provisions of this agreement bar any
of the Adult Clubs from increasing the square footage
of their business or the amount of floor space devoted
to adult entertainment, any Adult Club that wishes to
increase either the square footage of its business or
the amount of floor space devoted to adult
entertainment may do so with the express approval of
the Dexalb County Governing Authority, and upon
obtaining all of the necessary permits and licenses
from the County. The County's Governing Authority
will have sole discretion to determine whether such
approval shall be granted to any such Adult Club based
upon any factors it deems relevant, and such approval
will be granted via written amendment to this
agreement.
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PART C: DENIAL OF LIABILITY
The parties released under this settlement and Release
Agreement, agree that this settlement is to resolve all claims
of
one against the other. The parties agree that this
Settlement and Release Agreement is entered into by
DEKALB
solely to avoid the further nuisance and expense of litigation.
This Settlement and Release Agreement shall not be construed to
indicate or to imply any wrongdoing or admission of liability on
the part of DEKALB and any and all liability for the ADULT
CLUBS' claims and the incidents described in this Settlement and
Release Agreement and surrounding events are expressly denied by
DEKALB.
PART D: CONFIDENTIALITY
In further consideration of the payment hereunder, the
parties agree to use their best efforts to treat this Settlement
and Release Agreement as strictly confidential and not to
discuss or to comment on this Settlement and Release Agreement
or che litigation, except to say that the matter was settled
between the parties without reference to the conditions of the
settlement and that the case was voluntarily dismissed by the
ADULT CLUBS with a complete denial of liability by DEKALB. The
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confidentiality provisions of this Settlement and Release
Agreement shall remain in full force and effect at all times.
This provision is subject to disclosure requirements under state
and federal law such as the Georgia Open Records Act, 0.C.G.A.
50-18-70 et. seq.
PART E: DISMISSAL
Further, for the consideration granted hereunder, the
undersigned hereby agree to consent to and/or obtain an Order to
Dismiss With Prejudice or voluntary dismissal with prejudice of
each of the above-captioned lawsuits being Civil Action File
Numbers 99-CV-14075-1, 00-0 11-6749-1, 00-CV-6796-1, 00-CV-1459-1,
00-CV-6797-1,
00A74193-6,
1:99-CV-3301-RLV,
1:99-CV-3043-RLV,
1:99-CV-3328-RLV, 1:00-CV-0043-RLV, by requesting the Judge to
sign said Order and/or directing the Clerk to enter said Order
showing said action to be dismissed with prejudice, with all
liability denied by the parties and to further consent to the
entry of an Order whereby the Court specifically declines to
award costs or attorneys' fees or by executing a voluntary
dismissal with prejudice as prepared by DEKALB.
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PART F: ENTIRE UNDERSTANDING
The parties understand and agree that this Settlement and
Release Agreement constitutes the entire understanding between
the parties released hereunder, and supersedes any and all
verbal or written discussions, proposals, and/or offers of
compromise or settlement made in this case. The undersigned
agree that this Settlement and Release Agreement is in
compromise of doubtful and disputed claims and potential claims
both as to questions of liability and as to the nature and
extent of injuries and damages, and that the status granted
hereunder is not to be construed as an admission of liability by
any party released hereunder and that liability is expressly
denied.
PART C:
SUPERCEDES PRIOR AGREEMENT
This First Amended and Extended Settlement and Release
Agreement supercedes and supplants the prior (June 2001)
agreement between the Adult Clubs and DeKalb. That prior
agreement specifically gave the parties the authority to "agree
to extend the agreement on its [then] current terms or on other
mutually agreed terms in writing and upon approval by the
governing authority of DeKalb County". This First Amended and
extended Agreement is executed under the above-referenced
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authority of the ptior Agreement, and is meant to supplant and
superdede 'that prior AgreemeriL This Amended and Extended
Agreement shall extend for a fifteen (15) year period as
contained herein, and may be renewable by the parties for an
additional ten (10) year period under the financial terms
existing at the end of the initial fifteen (15) year period (or
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(4343 143 ft1,1
baiNER & BEGNER
PAGE 0 5
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BEGNER E BEGNER
PAGE 08
modified, amended, or extended by consent of the parties with
permission of the governing authority of DeKalb County) as
contained herein.
If there is any challenge to the
enforceability of the duration of this agreement, this agreement
shall be automatically construed as an agreement for fifteen
(15) consecutive one (1) year periods (or 25 consecutive one
year periods if extended by the parties) with automatic renewal
on January 1 of each year absent objection.
THE UNDERSIGNED HAVE READ THE FOREGOING SETTLEMENT AND
RELEASE AGREEMENT, UNDERSTAND IT FULLY AND SIGN IT VOLUNTARILY.
WITNESS, whereof the ADULT CLUBS set their hands and affix
day of
their signatures this
2007.
[SIGNATURES CONTINUED ON PAGES 29, 30, 31, and 32].
FOLLIES:
By. Surre R.
ite
Sworn to and subsc ibed
before me this
ftJ day
of
, 2007.
-30-
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nil
▪
ROOSTER'S BARNYARD:
By: Barbara F. Archibald
N
y Public
•
g n to and sub c bed
be ore me this jjJday
of
, 2007.
Notary Public, Cherokee
MyGOffimiSSion EXpkesMay lZ
Notary Pubtic, Cherokee County, Georgia
My Conwnission Swims May 12, 2011
Sworn to and subscrited
before me di'
day
of , 2007.
THE PINK PONY :
/27
Ei Y;/
Jack E. Gala di
it AAL,
C
ary Public
Sworn to and subsc
ed
before me th'
day
of
, 2007,
-31-
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eL3N930 2:13N930
Pq/ezinbilt,
PC T 01107 /00 0
Notary Public
Sworn to and subscribed
day
before me this , 2007.
of
SADDLES"]:
-
CE‘0.04 EUGENE EN 'USN
N TARYPUEL
_OYU OU
--'S ATE
-aka
o and subscribed
day
be`fore
, 2007.
of
Sw17.1
PIN LIPS:
By: Jessica R. Lee
By: James W Lee, Jr.
Notary Public
Sworn to and subscribed
before me this day
of
, 2007.
-31-A
TT 3E/Vd
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r clIc7/Abni,
PC:OT OMM7/011,70
STRO
_,
ic
ChemkeeCOUfltY,GQOtQlt
MvCommlESiOfl Expires May 12, 2011
S
Sworn to and subs
ed
before me this
day
of
, 2007.
SHOOTER'S ALLEY:
By:
No
fry
At
Public
stud
Sworn to and subscribed
before me this
day
of
, 2007.
CLUB BLAZE [FORMERLY KNOWN AS "BLAZIN SADDLES"]:
By: Maurine Whorton
Notary Public
Sworn to and subscribed
before me this day
of
, 2007.
PIN UPS:
-32-
ZI 39Vd
d3NO39 W H3N939
Pc:nr ciam7icionn
By: Jessica R. Lee
By/James W. Lee,
Georgie
Public, Chesnkee County,
Commission Expires May 12,2011
Sworn to and subscri ed
before me this day
2007 .
of
Amy ,
APPROVED:
Date:
Attorney
Saddles]
kers, Roosters, and Club Blaze (Blazin
icers thereof
Date: +
CAR WIGGINS, ESQ.
Attorney for Follies and Shooter's Alley and owners and officers
thereof
TE, ESQ.
Pin Ups and Great American Dream and owners and
ereof
G T LTnO
.
Attorney for Pink Pony and ,jairzlr —Tte-s and owners and officers
thereo
Date:
6-23 -497
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WILLIAM J. LINICOUS, III
Attorney for Defendants
-34-
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Jon
fl
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
OASIS GOODTIME EMPORIUM I,
INC., d/b/a OASIS; and MPC,
INC., d/b/a STROKERS; and
ROOSTER'S BARNYARD ETC.,
INC., d/b/a ROOSTERS; and
FREESE II, INC., d/b/a BLAZINI
SADDLES; and JANICE LOWE,
d/b/a JAZZY T'S;
Plaintiffs,
CIVIL ACTION
FILE NO. 99-CV-14075-1
VS.
DEKALB COUNTY, GEORGIA; THE
BOARD OF COMMISSIONERS OF
DEKALB COUNTY, GEORGIA
ELAINE C. BOYER, GALE
ALLDORFF, JACQUELINE SCOTT,
DAVIS, WILLIAM BROWN,
JUDY YATES, and PORTER
SANFORD, III, individually
and in their official
capacities as Commissioners
of DeKalb County, Georgia;
and LIAM LEVETAN, Chief
Executive Officer of DeKalb
County, Georgia, individually
and in her official capacity
as Chief Executive Officer of
DeKalb County, Georgia,
Defendants.
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
OASIS GOODTIME EMPORIUM I,
INC., d/b/a OASIS; and MPC,
INC., d/b/a STROKERS; and
ROOSTER'S BARNYARD ETC.,
INC., d/b/a ROOSTERS; and
FREESE II, INC., d/b/a BLAZIN
Pq/c7iPbCfb
PT:TT POMPIPMilP
SADDLES; and JAN C 0
d/b/a JAZZY T'S,
Plaintiffs,
CIVIL ACTION
FILE NO. 00-CV-6749-1
VS.
DEKALB COUNTY, GEORGIA; and
THE ALCOHOLIC BEVERAGE REVIEW!
BOARD OF DEKALB COUNTY,
Defendants.
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
TROP, INC., d/b/a PINK PONY
MUSEUM AND THEATER,
Petitioner,
vs.
CIVIL ACTION
FILE NO. 00-CV-6796-1
TOM BLACK; KEITH MOSS; MORGAN!
WHEELER; DAVID PIKE; and
ROBERT JOHNSON, all in their
official capacitites as
members of the DeKalb
Alcoholic Beverage Review
Board,
Respondents,
DEKALB COUNTY, GEORGIA,
Defendant.
ZO 39t/ci
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I Rtr,Cki,
T !TT oflfr' tat,
IN THE SUPERIOR CO URT OF DEKALB COUNTY
STATE OF GEORGIA
d
WBY, INC., d/
0
SHOOTER ALLEY, INC., d/b/a
SHOOTER ALLEY; TROP, INC.;
THE PINK PONY; and THE GREAT
CAN DREAM, d/b/a PIN
UPS,
Plaintiffs,
CIVIL ACTION
FILE NO. 00-CV-1459-1
vs.
DEKALB COUNTY, GEORGIA; and
LARRY SONGER, Alcohol License
Manager of DeKalb County,
Defendants.
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
WBY, INC„ d/b/a FOLLIES
COMMUNITY THEATRE & MUSEUM;
SURREY WHITE, in his capacity;
as licensee for WBY, Inc.;
SHOOTER ALLEY, INC., d/b/a
SHOOTER ALLEY COMMUNITY
THEATRE & MUSEUM; JOAQUIN J.
RAMU, JR., in his capacity as
licensee for Shooter Alley,
Inc.,
CIVIL ACTION
FILE NO. 00-CV-6797-1
Petitioners,
v s.
KEITH MOSS; MORGAN WHEELER;
DAVID PIKE; and ROBERT
JOHNSON, all in their
official capacities as
members of the DeKalb
W-41,,ILT4c1
>alecZa
C"0/C7)04,Mh
CT.TT
onn7)on.orn
Alcoholic Beverage Review
Board; and MAJOR SADLER, as
Deputy Finance Director,
Re pendants.
DEKALB COUNTY, GEORGIA,
Defendant.
IN THE STATE COURT OF DEKALB COUNTY
STATE OF GEORGIA
GREAT AMERICAN DREAM, INC.,
d/b/a P/N UPS,
Plaintiff.
CIVIL ACTION
FILE NO. 00A74193-6
VS.
DEKALB COUNTY, GEORGIA; THE
BOARD OF COMMISSIONERS OF
DEKALB COUNTY; JONATHAN
WEINTRAUB, County Attorney;
LIANE LEVETAN; JANE DOE'S;
JOHN DOE'S, individually and
severally,
Defendants.
IN THE UN/TED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GREAT AMERICAN DREAM, INC.,
d/b/a PIN UPS, f/k/a GUYS AND
DOLLS,
Plaintiff,
CIVIL ACTION
FILE NO. 1:99-CV-3301-RLV
VS.
-4-
00 39Vd
H3N930 N3N939
7/Abilb
PT:TT
QrAM7 /On h/r)
JONATHAN WEINTRAUB, County
Attorney, individually and ini
his capacity as the county
i
attorney of DeKalb County,
Georgia; DEKALB COUNTY,
GEORGIA; THE BOARD OF
COMMISSIONERS OF DEKALB
COUNTY, GEORGIA; ELAINE C.
BOYER, GALE WALLDORFF,
JACQUELINE SCOTT, KEN DAVIS,
WILLIAM BROWN, JUDY YATES,
and PORTER SANFORD, III,
individually and in their
official capacities as
Commissioners of DeKalb
County,
Defendants.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TROP, INC., d/b/a PINK PONY,
Plaintiff,
CIVIL ACTION
FILE NO. l:99-CV-3O43.RtV
vs.
DEKALB COUNTY, GEORGIA,
Defendant.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WBY, INC., d/b/a FOLLIES; and
SHOOTER ALLEY, INC., d/b/a
SHOOTER ALLEY,
Plaintiffs,
vs.
5O 3go'cl
CIVIL ACTION
FILE NO. 1:99-CV-3228-RLV
Pg iC7InhAh
TT 011in ittra n
DEKALB COUNTY, GEORGIA; THE
BOARD OF COMMI SSIONERS OF
DEKALB COUNTY, GEORGIA;
C. BOYER, GALE
ORFF, JACQUELINE SCOTT,
DAVIS, WILLIAM BROWN,
Y YATES, and PORTER
SANFORD, III, individually
and in their official
capacities as Commissioners
of DeKalb County, Georgia,
Defendants.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARIA D. WILLIAMS; TAFANIKA
NGLETARY; LATONYA MCGILL;
TANEKA WASHINGTON; SABRINA
LUMPKIN; and STEVE SIMPSON,
Plaintiffs,
C/VIL ACTION
FILE NO. 1:00-CV-0043-RLV
VS.
DEKALB COUNTY, GEORGIA,
Defendant.
FIRST AMENDED AND EXTENDED SETTLEMENT AND RELEASE AGREEMENT
PART A: RELEASE
FOR AND IN CONSIDERATION of the granting of certain "nonconforming status" as set forth in detail in Part B of this
agreement by DeKalb County, Georgia, the receipt and sufficiency
90 39to d
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of which is hereby acknowledged, and for other good and valuable
consideration, the undersigned Follies (Surrey R. White, Steven
Youngelson, and Jade Grossman), Rooster's Barnyard (Barbara F.
Archibald and Peter G. Archibald, Jr.), Oasis Goodtimes Emporium
(Barbara J. Holcomb), The Pink Pony (Jack E. Galardi), Strokers
Club (Terr Fischer), Shooter's Alley (Joaquin J. Ramu, Jr.),
Blazin Saddles [now known as Club Blaze] (Maurine Whorton), and
Pin Ups (Jessica R. Lee and James W. Lee, Jr.) (hereinafter
y "Adult Clubs" or individually 'Adult Club') hereby
acknowledge full accord, satisfaction and settlement of and
hereby release any and all actions, causes of action, damages or
claims for damages, demands, claims and rights of whatsoever
kind and nature which are claimed against all DEFENDANTS,
specifically including but not limited to DeKalb County,
Georgia; The Board of Commissioners of DeKalb County, Georgia;
Elaine C. Boyer; Gale Waldorff; Jacqueline Scott; Ken Davis;
William Brown; Judy Yates; Porter Sanford, III; Jeff Rader;
Larry Johnson; Burrell Ellis; Lee May; Kathie Gannon; Connie
Stokes; Vernon Jones, Chief Executive Officer of DeKalb County,
Georgia; Liane Levetan, Former Chief Executive Officer of DeKalb
County, Georgia; The Alcoholic Beverage Review Board of DeKalb
County, Georgia; Tom Black; Keith Moss; Morgan Wheeler; David
LB 30Vci
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ion it
es
Pike; Robert Johnson; Larry Songer, Former Alcohol License
Manager of DeKalb County; Major Sadler, Former Deputy Finance
Director; William J. Linkous, III, County Attorney; Jonathan
Weintraub, Former County Attorney; Jane Doe's; and John Doe's;
and all other officers, officials, employees, and agents of
DeKalb County, individually and in their official capacities,
(hereinafter "DEKALB"), in Civil Action File Numbers 99-CV14075-1, 00-CV-6749-1, 00-CV-6796-1, 00-CV-1459-1, 00-CV-6797-1,
00A74193-6,
1:99-CV-3301-RLV,
1:99-CV-3043-RLV,
1:99-CV-3328-
RLV, 1 :00-CV-0043-RLV, styled as shown in the capti ns to this
agreement and in any other pending or contemplated civil action
by the above-referenced ADULT CLUBS.
By entering into this
Release, the ADULT CLUBS shall and do hereby release DEKALB for
any and all state and federal claims which have been or could
have been asserted or which in any way relate to or arise out of
or could have related to or arisen from the ADULT CLUBS'
existence, operation or doing business or engaging in activity
of any kind within the boundaries of DeKalb County, for which it
could have been claimed that DEKALB, or any of its officials,
employees, officers or agents, are legally liable or subject to
any claim whether for equitable or legal relief.
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In further consideration of the status granted hereunder,
the undersigned intend, represent and warrant that any and all
claims that were and/or could have been asserted by or on behalf
of the ADULT CLUBS arising out of and by reason of the acts
alleged in the Complaints filed in the referenced civil actions
are hereby released, relinquished, dismissed with prejudice,
settled and satisfied.
Having received and acknowledged the
above-stated consideration as full compensation for and on
account of any and all alleged injuries and damages which it is
claimed were sustained or could be claimed to have been
sustained as a result of the ADULT CLUBS' existence, operation,
doing business or engaging in activity of any kind within the
boundaries of DeKalb County, the ADULT CLUBS hereby satisfy and
settle such claims and hereby release and forever discharge
DEKALB, and its former and present officials, agents, servants,
heirs,
successors,
administrators,
officers,
employees,
directors, personal representatives and assigns, and all other
departments, agencies, corporations, companies and persons from
any and all claims, actions, demands and causes of action of
whatsoever kind and nature arising out of the events alleged in
the Complaints, including, but not limited to rights relating in
any way to any licensing or permitting by DEKALE; personal
50 39tici
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injury; loss of consortium; loss of services; lost wages; lost
property; back pay; promotion; injunctive relief; attorneys'
fees and punitive damages; employment rights and benefits;
pension benefits; damage to reputation; all other claims and
expenses incidental to the terms, conditions and benefits of the
ADULT CLUBS' existence, operation, doing business or engaging in
activity of any kind within the boundaries of DeKalb County;
deprivation of any and all rights secured under the Constitution
and laws of the United States of America or of the State of
Georgia or the ordinances of DeKalb County, Georgia, including
but not limited to, those rights secured under the First
Amendment of the Constitution of the United States of America,
42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988, 2000e and 12101;
attorneys' fees, costs and expenses of litigation incurred in
this action; punitive damages; and any other damages or expenses
arising out of said matter. Any promises made or actions taken
under this Settlement and Release Agreement shall not be
construed to limit or waive the sovereign, official or qualified
immunity of DEKALB, and this settlement is not made to resolve
any claims that are barred by sovereign immunity. This release
is intended to and does completely bar and foreclose any and all
-10-
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N3N926,E3N922
E9L9ZLE14017
ET:TT 9ORZ/REI/2P
claims that the Adult Clubs may now have or ever had against
DERALB .
PART B1 ADULT NON-CONFORMING STATUS
Whereas,
DeKalb
County
(hereinafter
"the
County")
ordinances currently prohibit the sale of alcohol in adult
entertainment establishments and erotic entertainment/dance
establishments, which prohibition is set forth in Code of DeKalb
County § 15-402(o),
("Adult Entertainment Ordinance"), the
County hereby individually and for its successors and assigns
grants "non-conforming status" to the Adult Clubs, currently
operating as such adult entertainment establishments and/or
erotic entertainment/dance establishments as currently defined
in the Code of DeKalb County § 15-401. This agreement shall be
binding upon DeKalb County, its successors, transferees, assigns
for the terms specified herein. This agreement shall be binding
upon any governmental body to which the County transfers
regulatory control over the matters herein, expressly including
any municipality which obtains jurisdiction by incorporation or
annexation.
The allowable uses herein shall be considered as
ongoing actual uses by any such successor or assign.
For
purposes of this agreement the term "non-conforming status"
shall mean that the Adult Clubs will be permitted to sell
T T grIVA
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alcoholic beverages (subject to all other laws and regulation of
alcohol) and to provide adult entertainment in the form of nude
dancing or live nude performances.
For the purpose of this
agreement only the Adult Clubs shall be licensed with respect to
the non-conforming status granted herein. The non-conforming
status granted herein shall be for a term of fifteen (15) years
effective January 1, 2007, unless determined otherwise by a
court of competent jurisdiction, and shall be renewable by
consent of the parties for an additional ten (10) year term
following the expiration of the initial term. At the end of
such term the parties shall no longer be bound by the terms of
this agreement, and this agreement shall automatically terminate
no later than December 31, 2021 or December 31, 2031 if extended
by the parties.
However, the par ies may agree to extend the
agreement on its current terms or on other mutually agreed terms
in writing upon approval by the governing authority of Dekalb
County.
The term "non-conforming status" shall be strictly
limited to the meaning specifically set forth in this agreement,
and should have no other meaning or create no other right than
to allow alcohol to be served or sold at the same location as
the adult nude performances.
77
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Sections 16-60 to 16-64 of DeKalb County's Code of
Ordinances currently prohibit public nudity in DeKalb County,
and the County hereby grants the Adult Clubs non-conforming
status as defined in this agreement with respect to such
ordinance and any other ordinance banning public nudity, which
shall render the Adult Clubs exempt from the application of such
prohibition to run concurrently with the period of time that the
Adult Clubs are permitted to sell alcohol pursuant to the nonconforming status. Non-conforming status is not extended by
this agreement to any adult entertainment establishment that is
not currently operating in DeKalb County and that is not a party
to this Settlement. As further consideration for the granting
of non-conforming status the parties agree as follows:
1.
The Adult Clubs shall remain subject to all applicable
provisions in the Adult Entertainment Ordinance and
the DeKalb County Code of Ordinances unless specified
otherwise in this Agreement.
2.
Pursuant to Code of DeKalb County § 4-1 et. seq.
13 °
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("Alcoholic Beverage Ordinance"), the Adult Clubs
shall pay the maximum annual license fee allowed by
state law for acquiring the necessary alcoholic
beverage license. For year 2007, the fee shall be the
maximum amount allowed by Georgia Law and shall be due
on June 1, 2007 *In order to retain non-conforming
status Adult Clubs are required to maintain a current
alcohol license.
3.
If any Adult Club changes its location, use or size as
it existed on January 1, 2007, in any manner other
than as explicitly and specifically allowed by this
Agreement, then the Adult Club shall no longer be
entitled to non-conforming status under this
agreement.
4.
The non-conforming status granted hereunder may not be
sold, given, transferred or assigned by the current
ownership of any Adult Club, The Adult Clubs granted
non-conforming status herein may change ownership if
the new owner meets the requirements of the County
ordinances,
including
the
Alcoholic
Beverage
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Ordinance, and if the new ownership agrees to be bound
by the terms of the settlement agreement.
S.
In the event of the repeal of the Adult Entertainment
Ordinance in any manner, any new ownership of an Adult
Club, if desired by the new owner and approved by the
County, shall be granted the non-conforming status
pursuant to the terms of this Agreement.
Non-
conforming status will not be extended to any new
ownership of an Adult Club where any individual having
an interest either as owner, partner, principal
stockholder, directly or indirectly beneficial or
absolute, shall have been convicted within ten (10)
years immediately prior to the acquisition of
ownership for any felony or misdemeanor of moral
turpitude under any federal or state law of the United
States or any municipal ordinance except traffic
violations or for whom an outstanding warrant exists
on which service has not been effected.
6.
Any new ownership of an Adult Club seeking a license
to operate must comply with the current regulatory
15 -
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scheme. In the event of the repeal of the Adult
Entertainment
Ordinance
in
any
manner,
the
requirements set forth therein will apply to any new
ownership of an Adult Club.
Accordingly, the
provisions of Dekalb County Code § 15 7 407, 15409(a) (1) through (a)(9) and 15-409(a)(11) through §
15-409(b) are incorporated herein by reference as
specific requirements of this agreement.
7.
The Adult Clubs shall pay an annual fee during the
term of this agreement.
This fee shall be paid in
equal quarterly installments due on January 1, April
1, July 1, and October 1 of each year.
The fees for
each calendar year of this agreement shall be as
follows: $100,000 per adult club per year for the
first ten years of this agreement, and $150,000.00 per
adult club per year for the remaining five years of
this agreement. For year 2007, the Adult Clubs shall
each pay $100,000.00, made retroactive to January 1,
2007. The Adult Clubs shall have a ten (10) day grace
period from the due date of each payment in which to
tender the fee without interest or penalty. Payment
-16-
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compliance with this Settlement Agreement means actual
receipt of funds by the County. Receipt of any
portion of the annual fee payment by the County more
than ten (10) days late shall result in the Adult Club
having its adult entertainment establishment license
and alcohol license immediately suspended by operation
of this agreement until the quarterly payment is made.
DeKalb County may take all steps to prohibit entrance
into or operation of any Adult Club that fails to make
timely payment, and the Adult Club hereby agrees to
cease operation until payment is made. Said late
payment shall also incur interest of 12% annually,
from the date due until date paid. Upon tendering the
late payment, including all penalties, within thirty
(30) days of the due date, the suspension shall
automatically end and the Adult Club may immediately
resume operation.
In the event that the fees become
more than thirty (30) days past due, the Adult Club
shall immediately and irrevocably lose its nonconforming status.
No written notice of the Adult
Club's failure to pay is required.
-17-
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8.
A certificate of non-conforming status shall be issued
on payment of the first installment of the annual fee.
9.
In the event that the Adult Entertainment Ordinance is
repealed in any manner, the Adult Clubs shall remain
liable to pay the annual fee pursuant to the terms of
this agreement. All Adul t Clubs shall be required to
renew their licenses annually on forms prescribed by
the County. A certificate of non-conforming status
shall be issued as long as the Adult Club is current
with its annual fee obligation and has not violated
any other provision of this agreement.
10.
All licenses granted under DeKalb County Code 15-400
et. seq. and preserved under this agreement in the
event of repeal shall remain a mere grant of p ivilege
to carry on business during the term of the license
subject to all terms and conditions imposed by 15400 et. seq. and related laws, applicable provisions
of the DeKalb County Code, other ordinances and the
terms of this agreement. In the event that 15-406
is repealed in any manner, the requirements set forth
CO 39Vd
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C9L5ZL80012
8E:TT 800Z/80/40
chief of DeKalb County) to have engaged in any
activity prohibited by § 15-402, then that Adult Club
shall be informed by the police chief of the
violation.
A hearing before the DeKalb County
Governing Authority will thereafter be scheduled as
soon as reasonably practicable to consider whether
there is due cause for suspending or revoking the nonconforming status granted under this agreement. The
hearing provided shall incorporate the procedures set
forth in Code of DeKalb County, §15-418(c) merely for
the purpose of this contract, and shall create no
other legal right or interest.
The decision of the
Governing Authority shall be final and not subject to
appeal or review except by certiorari to the DeKalb
County Superior Court.
12. The Adult Clubs shall remain governed by the
provisions of the Code of DeKalb County § 15-405,
including those which mandate that any and all
employees of such establishments shall be eighteen
years of age or older, be permitted and satisfy
certain requirements set forth therein. In the event
-20-
PO 39Vd
ei3N932 W 213N938
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RP:TI RAW/RAM:I
that said provision is repealed in any manner, the
requirements will continue to govern the Adult Clubs.
Accordingly, the provisions of DeKalb County Code §
15-405 are incorporated herein by reference as
specific requirements of this agreement. Should any
Adult Club be found by DeKalb County (in the sole
discretion of the police chief of DeKalb County) to
have engaged in any activity prohibited by § 15-405,
then that Adult Club shall be informed by the police
chief of the violation. A hearing before the DeKalb
County Governing Authority
will
thereafter be
scheduled as soon as reasonably practicable to
consider whether there is due cause for suspending or
revoking the non-conforming status granted under this
agreement. The hearing provided shall incorporate the
procedures set forth in Code of DeKalb County, §15418(c) merely for the purpose of this contract, and
shall create no other legal right or interest. The
decision of the Governing Authority shall be final and
not subject to appeal or review.
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13, Code of DeKalb County, § 15-405 shall be amended to
provide
the issuance of a single annually
renewable perMit to an employee of the Adult Clubs.
Such permit will authorize the employee to work in any
of the Adult Clubs in any capacity whatsoever,
including but not limited to performers, entertainers,
waiters,
musicians.
convenience
bartenders,
bouncers,
disc-jockeys
and
In consideration of the increased
afforded by
the
above
referenced
amendment, the fees for the permit will be increased
in
the
sole
discretion
of
DeKalb
County,
Specifically, the permit fee for dancers, performers
or other providers of entertainment for 2007 is $200.
The fee for bartenders and waiters for 2007 is $100.
The County reserves the right to impose increases in
said fees during the term of this agreement and any
subsequent renewal period,
14. The Adult
Clubs
shall not employ or otherwise allow
any person who does not hold a valid permit, whether
under the current regulatory scheme in § 15-405 or
otherwise, to work or perform in an Adult
Club.
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Should any Adult Club be found by DeKalb County (in
the so e discretion of the police chief of DeKalb
County) to have violated this term the Adult Club will
be given written notice of such incident of failure to
secure or renew an employee permit * Said notice shall
be given within thirty (30) days of the County's
discovery of the same. On the occasion of the third
incident within any twelve-month period the Adult Club
shall be informed of the violation by the police
chief. A hearing before the DeKalb County Governing
Authority will thereafter be scheduled as soon as
reasonably practicable to consider whether there is
due cause for suspending or revoking the nonconforming status granted under this agreement.
The
hearing provided shall incorporate the procedures set
forth in Code of DeKalb County, §15-418(c) merely for
the purpose of this contract, and shall create no
other legal right or interest.
The decision of the
DeKalb County Governing Authority shall be final and
not subject to appeal or review.
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164 Landscaping and sign changes or requirements shall be
required as they are deemed necessary by the County's
governing authority or its representative. Upon
written notification of a sign or landscaping Change
that is required under this agreement, the Adult Club
shall make the change within fo y-five (45) days of
Should any Adult Club fail to
such written notice.
make the required change, then that Adult Club shall
immediately and irrevocably lose the non-conforming
status granted under this agreement and cease
operation.
Only landscaping changes that are deemed
necessary for the reasonable benefit of neighboring
businesses and residents shall be requested.
17. The Adult Clubs may with the appropriate building,
development and other permits where required by the
Code of DeKalb County, renovate and reconstruct their
premises as necessary, however, except as allowed in
paragraph 21 below, the amount of space devoted to
adult entertainment shall not be enlarged, consistent
with Part B, Paragraph 3 herein.
The Adult Clubs
nonetheless, shall be required to comply with all
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permitting and regulatory requirements of DeKalb
County, except as to the non-conforming status
specifically set forth in the agreement.
18. Nothing in this Agreement shall prohibit DeKalb County
from adopting, amending or otherwise regulating any
and all matters relating to the operation of Adult
Clubs. Only the specific exclusions set forth in this
Agreement apply to the operation of the Adult ClUbs,
and the Adult Clubs will be required to comply with
all current and future laws unless stated otherwise.
19.
Nothing in this Agreement shall create any vested
rights in the Adult Clubs to operate.
20.
For the purpose of this Agreement, any and all
not ices to be given hereunder shall be in writing and
shall be deemed given when deposited in the United
States Mail, post prepaid, certified and addressed to
current address of the respective Adult Club, as
reflected in the Adult Club's most recent business
license application on file.
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21.
Although the provisions of this agreement bar any
of the Adult Clubs from increasing the square footage
of their business or the amount of floor space devoted
to adult entertainment, any Adult Club that wishes to
increase either the square footage of its business or
the amount of
floor space devoted to adult
entertainment may do so with the express approval of
the DeKalb County Governing Authority, and upon
obtaining all of the necessary permits and licenses
from the County-
The County's Governing Authority
will have sole discretion to determine whether such
approval shall be granted to any such Adult Club based
upon any factors it deems relevant, and such approval
will be granted via written amendment to this
agreement-
PART C: DENIAL OF LIABILITY
The parties released under this Settlement and Release
Agreement, agree that this settlement is to resolve all claims
of one against the other.
The parties agree that this
Settlement and Release Agreement is entered into by DEKALB
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sol ly to avoid the further nuisance and expense of litigation.
This Settlement and Release Agreement shall not be construed to
indicate or to imply any wrongdoing or admission of liability on
the part of DEKALB and any and all liability for the ADULT
CLUBS' claims and the incidents described in this Settlement and
Release Agreement and surrounding events are expressly denied by
DEKALB.
PART D: CONFIDENTIALITY
In further consideration of the payment hereunder, the
parties agree to use their best efforts to treat this Settlement
and Release Agreement as strictly confidential and not to
discuss or to comment on this Settlement and Release Agreement
or the litigation, except to say that the matter was settled
between the parties without reference to the conditions of the
settlement and that the case was voluntarily dismissed by the
ADULT CLUBS with a complete denial of liability by DEKALB. The
confidentiality provisions of this Settlement and Release
Agreement shall remain in full force and effect at all times.
This provision is subject to disclosure requirements under state
and federal law such as the Georgia Open Records Act, 0.C.G.A. §
50-18-70 et. seq.
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PART E: DISMISSAL
Further, for the consideration granted hereunder, the
undersigned hereby agree to consent to and/or obtain an Order to
Dismiss With Prejudice or voluntary dismissal with prejudice of
each of the above-captioned lawsuits being Civil Action File
Numbers 99-CV-14075-1, 00-CV-6749-1, 00-CV-6796-1, 00-CV-1459-1,
00-CV-6797-1,
00A74193-6,
1:99-CV-3301-RLV,
1:99-CV-3043-RLV,
1:99-CV-3328-RLV, 1:00-CV-0043-RLV, by requesting the Judge to
sign said Order and/or directing the Clerk to enter said Order
showing said action to be dismissed with prejudice, with all
liability denied by the parties and to further consent to the
entry of an Order whereby the Court specifically declines to
award costs or attorneys' fees or by executing a voluntary
dismissal with prejudice as prepared by DEKALB.
PART F: ENTIRE UNDERSTANDING
The parties understand and agree that this Settlement and
Release
Agreement constitutes the entire understanding between
the parties released hereunder, and supersedes any and all
verbal or written discussions, proposals, and/or offers of
compromise or settlement made in this case. The undersigned
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agree that this Settlement and Release Agreement is in
compromise of doubtful and disputed claims and potential claims
both as to questions of liability and as to the nature and
extent of injuries and damages, and that the status granted
hereunder is not to be construed as an admission of liability by
any party released hereunder and that liability is expressly
denied.
PART G:
SUPERCEDES PRIOR AGREEMENT
This First Amended and Extended Settlement and Release
Agreement supercedes and supplants the prior (June 2001)
agreement between the Adult Clubs and DeKalb. That prior
agreement specifically gave the parties the authority to "agree
to extend the agreement on its [then] current terms or on other
mutually agreed terms in writing and upon approval by the
governing authority of DeKalb County". This First Amended and
Extended Agreement is executed under the above-referenced
authority of the prior Agreement, and is meant to supplant and
supercede that prior Agreement.
This Amended and Extended
Agreement shall extend for a fifteen (15) year period as
contained herein, and may be renewable by the parties for an
additional ten (10) year period under the financial terms
existing at the end of the initial fifteen (15) year period (or
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modified, amended, or extended by consent of the parties with
permission of the governing authority of DeKalb County) as
contained herein.
If there is any challenge to the
enforceability of the duration of this agreement, this agreement
shall be automatically construed as an agreement for fifteen
(15) consecutive one (1) year periods (or 25 consecutive one
year periods if extended by the parties) with automatic renewal
on January 1 of each year absent objection.
THE UNDERSIGNED HAVE READ THE FOREGOING SETTLEMENT AND
RELEASE AGREEMENT, UNDERSTAND IT FULLY AND SIGN IT VOLUNTARILY.
WITNESS, whereof the ADULT CLUBS set their hands and affix
their signatures this
nd
day of
2007.
[SIGNATURES CONTINUED ON PAGES 29, 30, 31, and 32].
FOLLIES:
if/
By. Surre R. ite
Sworn to and subscribed
before me this
day
of
, 2007.
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ROOSTER'S B
By: Barbara F. Archibald
By: Pe
N°
G. Archiba d, Jr.
I'A nY toPublic
and subsc
before me this
of A4EJ
,
Notary Public, Cherokee County, GeOrglei
My Commission Expires May12,2011
bed
day
2007.
n.
1,4/
Sworn to and subsc
before me this
of
THE PINK PONY :
By; Jack E. Galardi
Sworn to and subscri ed
before me this
day
of
, 2007.
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PRI g 7.1 RbAb
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IJ 1:4
Notary Public
Sworn to and subscr bed
day
before me this , 2007.
of
n to and subscribed
day
2007.
PIN UPS :
By: Jessica R. Lee
ames W. Lee, Jr.
Notary Public
Sworn to and subscribed
before me this
day
of
, 2007.
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*
STR RS CLUR:
Acne
Public
Sworn to and sub
before me this
of
SHOOTER'S ALLEY:
jr,,
Sworn to and subscribed
before me this
day
of
, 2007.
CLUB BLAZE [FORMERLY KNOWN AS "BLAZIN SADDLES"I:
By: Maurine Whorton
Notary Public
Sworn to and subscribed
before me this day
of , 2007.
PIN UPS:
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By: J
ica R. Lee
6
ames W. Lee,
t ary
dr. /905.
County, Giorgi
Public
May 12, 2011
Sworn to and subscr ed
before me this 17t24 day
of frAy , 2007.
APPRO D:
Date:
Attorney
Saddles]
okers, Roosters, and Club Blaze (Blazin
*cers thereof
Date:
5/
•
Attorney for Follies and Shooter's Alley and owners and officers
thereof
Date:
T , ESQ.
brn ey for Pin Ups and Great American Dream and owners and
officers...thereof
Date:
T LrT
Attorney for Pink Pony and .4airr3 --T4 s and owners and officers
thereo
Date:
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WILLIAM J. LINXOUS, III
Attorney for Defendants
CT
irni. Writ, 1.0
innn
rrtl e, 7 Cli.f14..
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