HomeMy WebLinkAboutKelly, Adam, Settlement - 120219 9-.0)6\r- Trifs °to (-1j---7 19--2-1 1 A?))'6
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6 IN THE DISTRICT COURT OF THE STATE OF WASHINGTON
7 IN AND FOR JEFFERSON COUNTY
8 JEFFERSON COUNTY SHERIFF'S) Case No.: 17261
OFFICE, )
9 )
l 0 Plaintiff, )
vs. ) SETTLEMENT AGREEMENT
11 )
2014 Toyota Tundra, Lic # C52714E )
12 2008 Audi A4, Lic # BIH8619
12 Gauge Winchester shotgun, serial #)
1' L3657132 )
14 Bersa .22, serial # G72621 )
Bushmaster AR-15, serial # BK5056379 )
15 Remmington 700, serial# RR01973G )
Glock 42 .380, serial # ACZY188 )
16 Glock 30 .45, serial # HXG621 )
17 Glock 17 9 mm, serial # ACDD177 )
Suppressor, serial # OSP45-39987
18 Suppressor, serial # OCT45-10231
)
19 Defendant, )
)
20 And )
21 )ADAM M. KELLY,
22 )
Claimant. )
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WHEREAS, Plaintiff Jefferson County Sheriff's Office ("JCSO") issued a notice of
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seizure and intended forfeiture of personal property ("Notice") on April 2, 2019 for the following
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personal property: (1) 2014 Toyota Tundra, Lic # C52714E, VIN 5TFUW5F13EX381824; (2)
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2008 Audi A4, Lie # BIH8619, VIN WAUDF78E08A167082; (3) 12 Gauge Winchester
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28 SETTLEMENT AGREEMENT James Kennedy
PAGE 1 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O.Box 1220
Port Townsend,WA 98368
(360)385-9180
I shotgun, serial # L3657132; (4) Bersa .22, serial # G72621; (5) Bushmaster AR-15, serial #
2 BK5056379; (6) Remmington 700, serial # RR01973G; (7) Glock 42 .380, serial # ACZY188;
3 (8) Glock 30 .45, serial # HXG62; (9) Glock 17 9 mm, serial # ACDD177; (10) Suppressor,
4 serial# OSP45-39987; and, (11) Suppressor, serial # OCT45-10231; and,
5 WHEREAS, the Notice was issued under RCW 69.50.505; and,
6 WHEREAS, the Notice was delivered to the owner of the personal property, Adam M.
7 Kelly ("Mr. Kelly") and others having an interest the personal property, including Toyota Motor
8 Credit; and,
9 WHEREAS, on April 29, 2019, Mr. Kelly asserted an ownership or possessory interest in
10 the personal property and requested a hearing on his claim of ownership and right to possession;
11 and,
12 WHEREAS, on May 31, 2019, Mr. Kelly, through his attorney, petitioned to remove the
13 hearing from JCSO to the Jefferson County District Court; and,
14 WHEREAS, JCSO and Mr. Kelly (collectively "the Parties") wish to settle and resolve
15 Mr. Kelly's claims and potential claims arising out of, or relating to, the Notice and this hearing,
16 subject to the terms and conditions in this Agreement; and,
17 WHEREAS, the purpose of this Agreement is to forever settle and resolve the disputes,
18 claims and controversies between and among the Parties relating to the Notice and this hearing,
19 existing as of the date the last Party signs this Agreement.
20 NOW THEREFORE, the Parties by and through their signatures agree to settle on the
21 following terms:
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1. Consideration. The Parties agree as follows:
23 /174y its,o/04
1.1. Mr. Kelly agrees to forfeit a
all ownership /or possessory claims to JCSO for the
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firearms listed in the Notice, specifically described as: (1) 12 Gauge Winchester shotgun, serial #
25 L3657132; (2) Bersa .22, serial # G72621; (3) Bushmaster AR-15, serial # BK5056379; (4)
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Remmington 700, serial # RR01973G; (5) Glock 42 .380, serial # ACZY188; (6) Glock 30 .45,
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28 SE7"FLEMEv'7 AGREEMENT lames Kennedy
PAGE E 2 Jefferson County Prosecuting Attorney
1820 Jefferson street/P.O. Box 1220
Port Townsend.WA 98368
(360)385-9180
1 serial # HXG62; (7) Glock 17 9 mm, serial # ACDD177; (8) Suppressor, serial # OSP45-39987;
2 and, (9) Suppressor, serial # OCT45-10231 (collectively "the firearms"); and,
3 1.2. Mr. Kelly retains ownership and/or possessory interests in the automobiles listed
4 in the Notice, specifically described as: (1) 2014 Toyota Tundra, Lic # C52714E, VIN
5 5TFUW5F13EX381824; and (2) 2008 Audi A4, Lic # BIH8619, VIN WAUDF78E08A167082
6 (collectively "the automobiles"); and,
7 1.3. JCSO will not retain any ownership or possessory interest in the automobiles;
8 and,
9 1.4. Within 10 days of execution of this Agreement Parties, the Parties shall promptly
10 sign and cause to be entered a Stipulated Order of Dismissal of all claims in this hearing with
11 prejudice and without costs or fees.
12 2. Release. Mr. Kelly releases all claims against JCSO, its elected officials,
13 employees, officers, and attorneys arising from the claim, as well as any other claims for
14 damages, debts, losses, expenses, warranty, attorney's fees, rights of action, and causes of action,
15 whether statutory, contractual, based in tort, and whether at law or in equity, past, present or
16 future, known or unknown relating to this claim or hearing that may exist on the date the last
17 Party signs this Agreement.
18 3. Representations and Warranties. The Parties represent and warrant as follows:
19 3.1. That Mr. Kelly expressly has the authority to execute this Agreement and that this
20 Agreement as so executed shall be binding upon Mr. Kelly, his heirs, executors, administrators,
21 agents, representatives, successors, and assigns;
22 3.2. That, upon approval of the Board of County Commissioners, JCSO expressly has
23 the authority to execute this Agreement and that this Agreement as so executed shall be binding
24 upon JCSO, its agents, representatives, successors, and assigns;
25 3.3. That the representations, terms, and conditions of this Agreement shall endure
26 forever and shall survive the execution of this Agreement and the settlement of the claims
27 described in it; and,
28 SETTLEMENT AGREEb1EN r James Kennedy
PAGE 3 Jefferson County Prosecuting Attorney
1820 Jefferson street/P.O. Box 1220
Port Townsend,WA 98368
(360)385-9180
1 3.4. That the Parties have read and fully understand and assent to the representations,
2 terms, and conditions of this Agreement.
3 4. General Conditions. The parties agree to the following general conditions:
4 4.1. Controlling Law. It is understood and agreed that this Agreement is entered into
5 in the State of Washington. It is agreed that this Agreement shall be governed by and construed
6 in accordance with the laws of the United States and of the State of Washington as if applied to
7 transactions entered into and to be performed wholly within Washington between Washington
8 residents. No Party shall argue or assert than any law other than Washington law applies to the
9 governance or construction of this Agreement.
10 4.2. Entire Agreement. No representation or promise not expressly contained in this
11 Agreement has been made. The Parties to this Agreement further acknowledge that they are not
12 entering into this Agreement based on any promise or representation, expressed or implied,
13 which is not expressly contained in this Agreement. This Agreement supersedes any prior
14 agreement with respect to those subjects embraced within this Agreement. This Agreement
15 memorializes the entire agreement of the Parties.
16 4.3. No Assignment. The Parties represent, warrant and agree that they have not
17 assigned, transferred, conveyed, encumbered or in any manner otherwise disposed of all or any
18 portion of the claims, actions, causes of action, suits, potential causes of action, demands,
19 disputes, rights, obligations, or interests of any nature or kind whatsoever covered by this
20 Agreement, whether before or after they occurred, regardless of whether they have occurred as of
21 the date of this Agreement.
22 4.4. No Inducements. The Parties acknowledge that there have been no inducements
23 or representations upon which any of the Parties have relied entering into this Agreement, except
24 as expressly set forth in this Agreement.
25 4.5. No Third-Party Beneficiaries. The Parties do not intend, and nothing in this
26 Agreement shall be construed to mean, that any provision in this Agreement is for the benefit of
27 any person or entity who is not a Party.
28 SETTLEMENT AGREE:MEN'r James Kennedy
PACE 4 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port townsend,WA 98368
(360)385-9180
1 4.6. Modification of this Agreement. This Agreement may be amended or
2 supplemented only by a writing that is signed by duly authorized representatives of all the
3 Parties.
4 4.7. Signature in Counterparts. The Parties agree that separate copies of this
5 Agreement may be signed by each of the Parties and this Agreement will have the same force
6 and effect as if all the Parties had signed the original.
7 4.8. Facsimile Signatures. The Parties agree that facsimile signatures sent by fax or
8 email will have the same force and effect as original signatures.
9 4.9. Cooperation. The Parties agree that they shall facilitate, in good faith, the
10 effectuation of this Agreement.
11 4.10. Voluntary Undertaking. The Parties acknowledge that they have read this
12 Agreement and are fully aware of the contents of this Agreement and its legal effect.
13 4.11. Investigation and Complete Understanding. The Parties acknowledge that they
14 have made such investigation of the facts pertaining to this Agreement and all matters contained
15 herein as they deem necessary, desirable, or appropriate. The Parties expressly understand that
16 the facts later may turn out to be other than or different from the facts now known or believed to
17 be true. The Parties expressly assume the risk of such different facts and that all provisions
p y agree
18 of this Agreement shall remain in all respects effective and enforceable and not subject to
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19 terminationo rescission by reason of any such different facts.
20 4.12. Independent Legal Advice and Investigation. In entering into this Agreement, the
21 Parties acknowledge that they have received independent legal advice from their own counsel
22 and have relied on their own investigation and upon the advice of their own attorney with respect
23 to the advisability of making the settlement provided in this Agreement.
24 4.13. No Oral Waiver. No term or provision of this Agreement will be considered
25 waived by either Party, and no breach excused by either Party, unless such waiver or consent is
26 in writing signed on behalf of the Party against whom the waiver is asserted. No consent by
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28 SETTLEMENT AGREEMENT James Kennedy
PAGE 5 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend,WA 98368
(360)385-9180
1 either Party to, or waiver of, a breach by either Party, whether express or implied, will constitute
2 a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.
3 4.14. Arms-Length Negotiations. The Parties agree that this Agreement has been
4 negotiated at arms-length, with the assistance and advice of competent, independent legal
5 counsel.
6 4.15. Vigorously Contested Claims. This Agreement is a settlement of claims which
7 were vigorously contested, denied, and disputed as to validity and amount.
8 4.16. Joint Drafting Effort. The Parties acknowledge and agree that the drafting of this
9 Agreement has been a joint effort by the Parties and that this Agreement shall not be deemed
10 prepared or drafted by any one of the Parties. The terms of this Agreement shall be interpreted
11 fairly and in accordance with their intent and not for or against any one of the Parties. The
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12� Parties further acknowledge and agree that each of the Parties possess equal. bargaining power
13 with respect to this Agreement.
14 4.17. Admissibility of this Agreement. Any evidence of the existence, terms or
15 negotiation of this Agreement shall be inadmissible in any litigation, provided, however, that
16 such evidence may be offered in any dispute concerning this Agreement itself and the Parties
17 may offer such evidence in response to any allegation of misconduct by them. This Agreement
18 has been entered into in reliance upon the provisions of Rule 408 of the Federal Rules of
19 Evidence ER 408, and similar state law provisions in other states which preclude the introduction
20 of evidence regarding settlement negotiations or agreements.
21 4.18. No Admission of Liability. The payment of the amounts described in this
22 Agreement is for the compromise of disputed claims, and neither such payment nor its receipt
23 shall be construed as an admission by either Party. By entering into this Agreement, the Parties
24 make no admission that they have any liability or obligation to each other or to any other person.
25 Each Party understands and agrees that nothing in this Agreement is intended to nor shall be
26 deemed nor construed to be an admission of liability by any Party in any respect or to any extent
27 whatsoever.
28 SE"ITLEMEN I AGREEMENT James Kennedy
PAGE.6 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O.13ox 1220
Port Townsend,WA 98368
(360)385-9180
1 4.19. Severability. Provided it does not result in a material change in the terms of this
2 Agreement, if any provision of this Agreement or the application of this Agreement to any
3 person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of
4 this Agreement and the application this Agreement shall not be affected and shall be enforceable
5 to the fullest extent permitted by law.
6 4.20. Additional Documents and Action. Each Party to this Agreement agrees to
7 execute, or cause their counsel to execute on their behalf, any additional documents and to take
8 any further action which may reasonably be required to fulfill the obligations of the Parties under
9 this Agreement.
10 IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement
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on the date inserted by their respective signatures.
1 (SIGNATURES FOLLOW ON NEXT PAGES)
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28 SETTLEMENT AGREEMENT .lames Kennedy
PACE 7 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port'Iownsend_WA 98368
(360)385-9180
1 ADAM M. KELLY
3 Dated: 87247/ By: 40
4 Adam M. Kelly
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6 JEFFERSON COUNTY
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8 Dated: l °`/217� By:
Kate ean, Chair
9 Jefferson County Board of Commissioners
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28 SETTLEMENT AGREEMENT James Kennedy
PAGE 8 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O.Box 1220
Port Townsend,WA 98368
(360)385-9180
Consent
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
Philip Morley, County Administrator
FROM: Austin Watkins, Civil Deputy Prosecuting Attorney
DATE: December 2, 2019
RE: Request for Board of County Commissioners to Approve and Sign
Settlement Agreement with Adam Kelly to Resolve a Civil Forfeiture
Case.
STATEMENT OF ISSUE:
On or about March 29, 2019, Jefferson County Sheriff's Office ("JCSO") seized Adam Kelly's
("Kelly")property under RCW 69.50.505. JCSO seized a 2014 Toyota Tundra, 2008 Audi A4,
seven firearms, and two suppressors. On April 29, 2019, Kelly asserted a right of possession over
the seized property and requested a civil forfeiture hearing. On May 31, 2019, Kelly removed the
hearing to the Jefferson County District Court. The parties have been in settlement negotiations
regarding the civil forfeiture case for several months. On November 21, 2019 a potential
settlement was reached by negotiation between JCSO and Kelly, which must be approved by the
BoCC to be effective. JCSO and PAO recommend that the BoCC approve the settlement.
ANALYSIS:
The proposed settlement agreement resolves the issues in this case and obtains the JCSO's
desired relief. The proposed settlement agreement requires the following:
• JCSO to retain the seven firearms and two suppressors;
• Kelly to retain the 2014 Toyota Tundra and 2008 Audi A4; and,
• Neither party admits liability.
The proposed settlement agreement saves the County resources in continuing to litigate the case
and exposure on attorney's fees if the County is not successful at the hearing. This proposed
settlement agreement achieves JCSO's desired result by obtaining title to the seized firearms and
suppressors.
FISCAL IMPACT:
There is no fiscal impact from this settlement agreement.
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Consent
RECOMMENDATION:
Approve the settlement and authorize the Chair of the BoCC to sign the settlement agreement on
behalf of Jefferson County.
REVIEWED BY:
, /////:2-Z
L_El ip Morlckyo, unty Admipistrato Date
2
CONTRACT REVIEW FORM
CONTRACT WITH: Ac TRACKING NO.: j 9_ ZS O
(Contractor/Consultant)
CONTRACT FOR: S TERM:
COUNTY DEPARTMENT: Prosecuting Attorney's Office
For More Information Contact: Philip C. Hunsucker
Contact Phone #: 360-385-9219
RETURN TO: Laura Mikelson RETURN BY:
(Person in Department) (Date)
AMOUNT: re 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: REVIEW BY !`o Ec�
Review b C
Date Re - :
APPROVED FORM 0 Returned for revision(See Comments)
Co ments
Step 2: REVIEW BY ING ATTORNEY AVA \ 144.144/4
Review by: lakiiirerttarrseekeir
Date Reviewed: 11 136111 chief Civil Deputy Prosecuting Attorney
111 APPROVED AS TO FORM 0 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.)