4.0 Miscellaneous Provisions

• 4.1 This Settlement Agreement resolves the disputes between the parties relating to the issues presented in the AFRC O & C case, and amends the Counties O & C case Settlement Agreement, superseding in its entirety the provisions beginning in Paragraph 1 of the Counties O & C case Settlement Agreement with the words: "The Association of O & C Counties and Douglas County covenant . . ." through and including paragraph 2 thereof. This Settlement Agreement resolves all claims by the Counties or AFRC which were asserted or could have been asserted in both cases, but does not address or resolve any other pending, actual or potential dispute between the parties including all disputes presented in any other pending legal action. Nothing in the Settlement Agreement shall be construed as being prejudicial to any purchaser’s pending or future claim concerning any timber sale contract.


• 4.2 AFRC’s appeal is currently being held in abeyance in the Court of Appeals pending status reports from the parties. Provided the District Court indicates its disposition to dismiss the AFRC O & C case without prejudice in accordance with the terms of this Settlement Agreement, AFRC and the Secretaries will jointly request the Court of Appeals to remand the AFRC O & C Case to the District Court for dismissal without prejudice in accordance with this Settlement Agreement. Such dismissal shall not create, support or constitute a defense to any claims AFRC or the Counties may have against the outcome of any administrative action undertaken by the Agencies pursuant to this Settlement. The dismissal shall call for each party to bear its own costs and attorney fees.


• 4.3 The District Court shall retain jurisdiction through June 30, 2009 to consider any motion by AFRC and/or the Counties to enforce this Settlement Agreement, which may not be filed until 60 days after the moving party has given written notice to the Agencies of their failure to perform any agreement required by paragraphs 3.1 through 3.5. Alternatively, after giving such notice AFRC and the Counties or either of them may move, under Fed.R.Civ.P.60(b), to vacate, as the case may be, (1) the dismissal of the AFRC O&C case without prejudice pursuant to this Settlement Agreement, and/or (2) the dismissal of the Counties O&C case without prejudice entered March 17, 1997, and the federal defendants shall not, unless they dispute in good faith the moving party’s contention that they have failed to perform as alleged, oppose any such motion. Upon the entry of an order vacating the dismissal of its case, AFRC and the Counties shall each thereafter be free to pursue their claims for relief. In the event that the Agencies are otherwise in compliance with this Settlement Agreement, but Congress fails to provide necessary additional funding targeted for accomplishment of the objectives of the Settlement Agreement, and the objectives of the Settlement Agreement which are conditional on additional funding as set forth in paragraphs 3.2, 3.4 and 3.5 are not substantially performed for that reason, then AFRC and the Counties shall be entitled, as their sole remedy in this instance, to move to vacate the dismissals of their respective cases under Fed.R.Civ.P.60(b), in the manner and subject to the conditions set forth above, and pursue their claims for relief.


• 4.4 The election by AFRC or by the Counties to seek enforcement of this Settlement Agreement prior to June 30, 2009 as set forth in paragraph 4.3 shall preclude either of them from alternatively moving to vacate the dismissal of its case by reason of the alleged failure to perform that forms the basis for the motion to enforce the Settlement Agreement. Subsequent to June 30, 2009, the sole remedy of AFRC and the Counties for any alleged failure to perform shall be to move to vacate the dismissal of their respective cases. In the event that the Court shall enter an order vacating the dismissal of either the AFRC O&C case or the Counties O&C case, all obligations under this Settlement Agreement shall cease.


• 4.5 The parties agree that this Settlement Agreement shall not be taken or construed as an admission of liability or potential liability on the part of either party, or an admission of the existence of any facts upon which liability could be based, but rather that any such liabilities or potential liabilities have been and are expressly denied by the parties.


• 4.6 Nothing in the terms of this Settlement Agreement shall be construed to limit or modify the discretion accorded the Agencies under any statutes administered by them or applicable to their activities or by general principles of administrative law.


• 4.7 Nothing in the terms of this Settlement Agreement shall be construed to limit or deny the power of the Agencies to promulgate or amend regulations or to otherwise amend or revise Resource Management Plans, Land and Resource Management Plans, the NWFP, or any other planning document contemplated by the NWFP.


• 4.8 No provision of this Settlement Agreement shall be interpreted as or constitute a commitment or requirement that Defendants obligate or pay funds in violation of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other law or regulation.


• 4.9 The terms of this Settlement Agreement constitute the entire agreement of the Parties, and no statement, agreement or understanding, oral or written, which is not contained herein, shall be recognized or enforced.


• 4.10 Each undersigned representative of the Parties hereto certifies that he or she is fully authorized to enter into and execute the terms and conditions of this Settlement Agreement. This Settlement Agreement becomes effective upon signature of the undersigned representatives as of the date of last signing.