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HomeMy WebLinkAboutHood, Eric - 032620 CA'Re CC: � C5 SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Agreement is made between Settling Parties. (All terms in bold in this Agreement are defined in Section 2.4, below.) 1 RECITALS 1.1 WHEREAS, Hood submitted the Claim to Jefferson County on July 1, 2019 concerning the Incident; 1.2 WHEREAS, Settling Parties desire to avoid the cost of additional attorney's fees and expenses associated with the Claim; 1.3 WHEREFORE, Settling Parties hereby agree to the terms and conditions in this Agreement; 1.4 NOW, THEREFORE, in consideration of the mutual promises and obligations in this Agreement and pursuant to the material terms of settlement reached between Settling Parties and for other good and valuable consideration, the receipt and sufficiency of which Settling Parties hereby acknowledge, Settling Parties agree to the following terms and agree to be bound by the terms and conditions in this Agreement. 2 TERMS OF THIS AGREEMENT 2.1 Parties Bound. This Agreement shall apply to and be binding upon, and shall inure to the benefit of each of the Settling Parties, including all of their respective assigns, heirs, personal representatives, executors, administrators, officers, officials, employees, agents and volunteers, successors and assigns. Settling Parties certify that they are fully authorized to enter into the terms and conditions of this Agreement and to execute this Agreement. 2.2 Effective Date. This Agreement is effective on the date the last Settling Party executes this Agreement or 30 days after Hood executes this Agreement, whichever is earlier. 2.3 Purpose of this Agreement. The purpose of this Agreement is to resolve any current and future potential disputes between Settling Parties regarding the matters released in Section 2.5. 2.4 Definitions. 2.4.1 Words used in this Agreement are to be taken and understood in their natural and ordinary sense, unless this Agreement indicates that a different meaning was intended. Whenever the following terms are used in this Agreement (including, without limitation, this Section 2.4), the meanings in this Section 2.4 shall apply. 2.4.2 "Agreement" means this Settlement Agreement and Mutual Release. March 25, 2020 Page 1 of 7 SETTLEMENT AGREEMENT AND MUTUAL RELEASE 2.4.3 "Claim" means any and all damages, attorney's fees, costs and actual or alleged claim, demand, request, action, duty, right, obligation (including contractual, common law or statutory), fine, penalty, sanction, liability, action, order, suit, lawsuit or proceeding of every kind and nature, wherever and whenever occurring, whether at law or in equity, and whether sounding in tort, contract, equity, nuisance, trespass, negligence, strict liability or any statutory or common law cause of action, duty or obligation of any sort, and whether made, brought or could have been made or brought, known and unknown, past, present and future that was or could have been brought against Jefferson County by Hood as of the Effective Date, whether arising or allegedly arising from the Incident or the Lawsuit. 2.4.4 "Effective Date" means the date set forth in Section 2.2. 2.4.5 "Hood" means Eric Hood, and all of his assigns, administrators, executors, heirs, insurers, personal representatives, successors, subrogees, or trustees, including each of their agents, representatives and attorneys. 2.4.6 "Incident" means Jefferson County's response to Hood's January 27, 2019 public records and request. 2.4.7 "Jefferson County" means Jefferson County Washington and all of its departments, officers (including elected and appointed officers), officials, employees, agents and volunteers. For the avoidance of doubt, "Jefferson County" includes but is not limited to the Jefferson County Auditor's Office, the Jefferson County Public Records Act Officer, the Jefferson County Public Records Act Administrator, and the Prosecuting Attorney's Office. 2.4.8 "Lawsuit" means Eric Hood v. Jefferson County, in the Superior Court of the State of Washington in and for Clallam County, Case No. 20-2-00095-05. 2.4.9 "Public Records Act" means Chapter 42.56 RCW. 2.4. 10 "Settlement Payment" means the payment required by Section 2.5.1. 2.4.11 "Settling Party" means one of the Settling Parties. 2.4.12 "Settling Parties" means Jefferson County and Hood. 2.5 Obligations of Settling Parties in Compromise of Disputed Claims. 2.5.1 Settlement Payment. Within 30 days of the Effective Date and after Hood has provided Jefferson County and IRS form W-9, Jefferson County shall pay to Hood the settlement amount of $ 10,000.00 (ten thousand and 00/100 dollars). 2.5.2 Release. Hood, on his own behalf and on behalf of her assigns, administrators, executors, heirs, insurers, personal representatives, successors, subrogees, or trustees, including each of their agents, representatives and attorneys, release Jefferson County from the Claim. March 25, 2020 Page 2 of 7 SETTLEMENT AGREEMENT AND MUTUAL RELEASE 2.5.3 Stipulated Order of Dismissal. Within 10 days of Hood's receipt of the Settlement Payment, Hood shall promptly sign and Jefferson County shall cause to be entered a Stipulated Order of Dismissal of all claims in the Lawsuit with prejudice and without costs or fees. 2.5.4 Withdrawal of Public Records Requests. Hood acknowledges and agrees that he will withdraw immediately and without limitation any and all previous requests to Jefferson County made by him or on his behalf to obtain public records pursuant to any law applicable to government agencies, including but not limited to the Public Records Act. Hood also hereby acknowledges and agrees that this Agreement constitutes a knowing and voluntary waiver of his right to obtain such records from Jefferson County. 2.5.5 No Public Records Act Requests for 3 Years from the Effective Date. Hood offered as a part of the consideration for this settlement not to make any Public Records Act Request to Jefferson County (as defined above). Accordingly, Hood shall not make any Public Records Act Request to Jefferson County (as defined above) for three years from the Effective Date. Hood also agrees that the promise he made in this Section 2.5.5 is a material term of this Agreement and that damages are not an adequate remedy for Jefferson County. Accordingly, Hood also agrees that this Section 2.5.5 is enforceable by specific performance. 2.5.6 Taxes. Hood acknowledges and agrees that Jefferson County makes no representation as to any tax consequences arising from the Settlement Payment. Moreover, Hood understands and agrees that any tax consequences and/or liability arising from the Settlement Payment shall be his sole responsibility. 2.5.7 Non -Disparagement. The Settling Parties understand that this Agreement may become the subject of a request for public records under the Public Records Act and that Jefferson County likely would be required to produce it. The Settling Parties agree that if asked about the settlement, the Settling Parties agree to refer any person asking to this Agreement. Each Settling Party agrees not to make public negative statements or communications disparaging the other Settling Party. For purposes of this Section 2.5.7: (a) "public negative statements or communications, disparaging" a party includes but is not limited to any remarks, statements, comments or criticisms that disparage, call into disrepute, defame, slander or which can be reasonably be construed to be derogatory or critical of, or negative toward a party whether made directly or indirectly, alone or in concert with others, whether orally or in writing, made to any person who is not a party to this Agreement; and, (b) the provisions of this Section 2.5.7 will not be violated by truthful statements in response to legal process, required governmental testimony or filings, or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings). 2.6 Known and Unknown Claims, 2.6.1 With respect to the releases given in Section 2.5.2, Hood expressly, knowingly, and voluntarily waives and relinquishes any and all rights that he may have under any state or federal statute which protects a settling party from releasing claims which the settling party does not know or suspect to exist in the settling party's favor at March 25, 2020 Page 3 of 7 SETTLEMENT AGREEMENT AND MUTUAL RELEASE the time of executing the release, which if known by the settling party must have materially affected the settlement. 2.6.2 Hood understands and acknowledges the significance and consequences of this waiver and hereby assumes the risk of any changed circumstances or facts concerning this waiver. Hood expressly acknowledges and agrees that this waiver extends to any claims concerning the specific matters being released in Section 2.5.2, whether or not Hood knew or should have known about such claims or the possibility of such claims at the time that Hood executed this Agreement. 3 GENERAL PROVISIONS 3.1 Controlling Law. It is understood and agreed that this Agreement is entered into in the State of Washington. It is agreed that this Agreement shall be governed by and construed in accordance with the laws of the United States and of the State of Washington as if applied to transactions entered into and to be performed wholly within Washington between Washington residents. No Settling Party shall argue or assert than any law other than Washington law applies to the governance or construction of this Agreement. 3.2 Attorney's Fees. Settling Parties shall bear their own attorney's fees and costs related to the Claim. Further, in the event of any controversy, claim or dispute between any of Settling Parties arising out of this Agreement, Settling Parties shall bear their own attorney's fees and costs. 3.3 Entire Agreement. This Agreement, including the Appendices attached to it, is an integrated agreement and it contains the entire agreement between Settling Parties relating to this subject matter and its terms are contractual, not a mere recital. Except as specifically provided in this Agreement, this Agreement supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral. This Agreement supersedes and controls all prior communications between the Settling Parties or their representatives relative to the matters contained in this Agreement. 3.4 No Inducements. Settling Parties acknowledge that there have been no inducements or representations upon which any of Settling Parties have relied in entering into this Agreement, except as expressly set forth in this Agreement. 3.5 Third -Party Beneficiaries. Settling Parties do not intend, and nothing in this Agreement shall be construed to mean, that any provision in this Agreement is for the benefit of any other person or entity who is not a Settling Party. 3.6 Modification of this Agreement. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of all Settling Parties. 3.7 Effect of Partial Invalidity. If any term or provision of this Agreement is found to be invalid, in violation of public policy or unenforceable to any extent, such finding shall not March 25, 2020 Page 4 of 7 SETTLEMENT AGREEMENT AND MUTUAL RELEASE invalidate any other term or provision of this Agreement and such other terms and provisions shall continue in full force and effect. Settling Parties understand, intend, and agree that this Agreement and each of the terms, covenants, and provisions of this Agreement shall be enforced to the greatest extent permitted by law. If any part of this Agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force. 3.8 Signature in Counterparts. Settling Parties agree that separate copies of this Agreement may be signed by each of Settling Parties and this Agreement will have the same force and effect as an original signed by all Settling Parties. 3.9 Facsimile Signatures. Settling Parties agree that a facsimile signature of this Agreement will have the same force and effect as an original signed by all Settling Parties. 3.10 Cooperation. Settling Parties agree that they shall facilitate, in good faith, the effectuation of this Agreement. 3.11 Voluntary Undertaking. Settling Parties acknowledge that they have read this Agreement and are fully aware of the contents of this Agreement and its legal effect. This Agreement is entered into voluntarily and without any coercion by or undue influence on the part of any person, firm, or corporation. 3.12 Investigation and Complete Understanding. Settling Parties acknowledge that they have made such investigation of the facts pertaining to this Agreement and all matters contained in this Agreement as they deem necessary, desirable, or appropriate. Settling Parties expressly understand that the facts later may turn out to be other than or different from the facts now known or believed to be true. Settling Parties expressly assume the risk of such different facts and agree that all provisions of this Agreement shall remain in all respects effective and enforceable and not subject to termination or rescission because of any such different facts. 3.13 Independent Legal Advice and Investigation. In entering into this Agreement, Settling Parties acknowledge that they have received independent legal advice from their own counsel and have relied on their own investigation and upon the advice of their own attorney with respect to the advisability of making the settlement provided in this Agreement. 3.14 No Oral Waiver. No term or provision of this Agreement will be considered waived by either Settling Party, and no breach excused by either Settling Party, unless such waiver or consent is in writing signed on behalf of the Settling Party against whom the waiver is asserted. No written consent by either Settling Party to, or waiver of, a breach by either Settling Party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Settling Party. 3.15 Arms -Length Negotiations. Settling Parties agree that this Agreement has been negotiated at arms -length, with the assistance and advice of competent, independent legal counsel. March 25, 2020 Page 5 of 7 SETTLEMENT AGREEMENT AND MUTUAL RELEASE 3.16 , No Admission of Liability. This Agreement is for the compromise of disputed claims, and neither any payment nor its receipt shall be construed as an admission by Settling Parties that they have any liability or obligation to one another or to any other person arising out of or about any claims at the Site. 3.17 Joint Drafting Effort. Settling Parties acknowledge and agree that the drafting of this Agreement has been a joint effort by Settling Parties and that this Agreement shall not be deemed prepared or drafted by any one of Settling Parties. The terms of this Agreement shall be interpreted fairly and in accordance with their intent and not for or against any one of Settling Parties. Settling Parties further acknowledge and agree that each of Settling Parties possesses equal bargaining power with respect to this Agreement. 3.18 Admissibility of this Agreement. Any evidence of the existence, terms or negotiation of this Agreement shall be inadmissible in any litigation between the Settling Parties; provided, however, that such evidence may be offered in any dispute concerning this Agreement itself and Settling Parties may offer such evidence in response to any allegation of breach by them. This Agreement has been entered into in reliance upon the provisions of Washington ER 408 and Rule 408 of the Federal Rules of Evidence. 3.19 Hea in s. The section headings in this Agreement are included as a matter of convenience and are not intended to and shall not be construed as affecting the terms and conditions of this Agreement. 4 REPRESENTATIONS AND WARRANTIES. The Settling Parties represent and warrant: 4.1 That each is fully authorized to enter into this Agreement; 4.2 That each has taken all necessary actions to duly approve the making and performance of this Agreement and that no other approval is necessary; and, 4.3 That each has read this Agreement in its entirety and know the contents of this Agreement, that the terms of this Agreement are contractual and not merely recitals, and that each has signed this Agreement, having obtained the advice of legal counsel. March 25, 2020 (SIGNATURES FOLLOW ON NEXT PAGE) Page 6 of 7 SETTLEMENT AGREEMENT AND MUTUAL RELEASE THE UNDERSIGNED HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO ITS TERMS: SETTLING PAR IES Eric Hood Date: &4 2- 61 ZOZ. D HINGTON —> PFtlip Morley, ou y Adm inisftatoT-- Date: March 25, 2020 Page 7 of 7 SETTLEMENT AGREEMENT AND MUTUAL RELEASE CONTRACT REVIEW FORM CONTRACT WITH: Eric Hood (Contractor/Consultant) CONTRACT FOR: Settlement Agreement & Mutual Release TRACKING NO.: BOCC 2020-06 TERM: Payment Upon Approval COUNTY DEPARTMENT: County Administrator_ WAR 2 7 2020 For More Information Contact: Philip Morley i m Contact Phone #: Ext. 383 RETURN TO: Leslie Locke RETURN BY: ASAP (Person in Department) (Date) AMOUNT: $10,000 PROCESS: ❑ Exempt from Bid Process ❑ Consultant Selection Process Revenue ❑ Cooperative Purchase Expenditure ❑ Competitive Sealed Bid Matching funds Required ❑ Small Works Roster Source(s) of Matching Funds ❑ Vendor List Bid ❑ RFP or RFQ ❑ Other Step 1: APPROVED FORM Comments REVIEW ❑ Retnrn'edfor revision (See Comments) Step 2: REVIEW BY PROSECUTING ATTORNEY . Review by: e- d. — Philip C. Hunsucker Date Reviewed: 3 Z t, Chief Civil Deputy Prosecuting Attorney APPROVED AS TO FORM ❑ Returned for revision (See Comments) Comments Step 3: (If required) DEPARTMENT MAKES REVISIONS & RESUBMITS TO RISK MANAGEMENT AND PROSECUTING ATTORNEY Step 4: CONTRACTOR/CONSULTANT SIGNS APPROPRIATE NUMBER OF ORIGINALS Step 5: SUBMIT TO BOCC FOR APPROVAL Submit original Contract(s), Agenda Request, and Contract Review form. Also, please send 2 copies of just the Contract(s) (with the originals) to the BOCC Office. Place "Sign Here" markers on all places the BOCC needs to sign. MUST be in BOCC Office by 4:30 p.m. TUESDAY for the following Monday's agenda. (This form to stay with contract throughout the contract review process.)