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HomeMy WebLinkAboutDavid Holland Settlement Agreement 2017SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is entered into between Jefferson County including its elected officials, commissioners, officers, directors, employees, former employees, agents, and insurers, collectively referred to as "Jefferson County") and David Holland Holland"). Jefferson County and Holland are sometimes referred to collectively as the Parties." Therefore, Jefferson County on the one hand and Holland on the other hand, intending to be legally bound, agree as follows: 1. No Admission of Liability. Holland agrees that this Agreement is not an admission that Jefferson County has violated any law or failed to fulfill any duty to Holland. Release of Claims. Holland specifically acknowledges and accepts Jefferson County's undertakings in this Agreement as full settlement of any and all claims, known or unknown, arising out of or related to Holland's employment or association with Jefferson County, including his separation from employment. The release is limited to all claims Holland has, may have had, claims to have had, or may have in the future, which are or may be based upon any facts, acts, conduct, representations, omissions, contracts, claims, events, causes, matters or other things occurring at any time on or before the signing of this Agreement. This release by Holland includes, but is not limited to, any claims for damages or attorney's fees, breach of contract and/or estoppel, lost equity -based compensation or lost salary or other benefits, libel, slander, fraud, the public records act as codified in Chapter 42.56 RCW, misrepresentation, or wrongful discharge, discrimination and/or retaliation under any federal, state or local statute or regulation, specifically including, but not limited to, any claims Holland may have under the Fair Labor Standards Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act, as amended, the Family and Medical Leave Act, the Washington Minimum Wage Act, the Washington Law Against Discrimination, and the Employee Retirement Income Security Act of 1974 (other than claims for vested benefits). These claims are examples, not a complete list, of the released claims, as it is the Parties' intent that Holland release any and all claims, of whatever kind or nature, in exchange for the consideration by Jefferson County identified in this Agreement. The Parties realize this constitutes a full and final settlement of any and all such claims, and except for obligations arising under this Agreement, this Agreement releases Jefferson County (including Jefferson County's elected officials, commissioners, officers, directors, employees, former employees, agents, and insurers, and anyone else against whom Holland could assert a claim based on Holland's association with Jefferson County, including his separation from employment) from any further liability to Holland (or to anyone else Holland has the power to bind in this Agreement) in connection with such claims. 3. ADEA Release. Holland acknowledges and agrees that he is also waiving and releasing any rights he may have against Jefferson County under the Age Discrimination in Employment Act ("ADEA") and that this waiver and release is knowing and voluntary ("waiver and release" in this paragraph 3 is referred to as ADEA Release"). Holland acknowledges and agrees that he has been advised by this writing that (a) this ADEA Release does not apply to any other rights or claims that may arise after the execution date of this Agreement; (b) he should consult with an S attorney prior to executing this Agreement; (c) he has twenty-one (21) days within which to consider this Agreement (although he may choose to voluntarily execute this Agreement and to waive such period of consideration); (d) he has seven (7) days following the execution of this Agreement to revoke this ADEA Release; (e) the ADEA Release shall not be effective until the revocation period has expired (the Effective Date"); and (f) nothing in this Agreement prevents or precludes Holland from challenging or seeking a determination in good faith of the validity of this ADEA Release under the ADEA, nor does it impose any condition, precedent, penalties or costs for doing so, unless specifically authorized by federal law. Any revocation of the ADEA Release, as set forth above, shall be in writing and delivered to Jefferson County's counsel, by close of business on the seventh (7') day from the date that Holland signs this Agreement, at the following address: Suzanne Kelly Michael Michael & Alexander PLLC 701 Pike St. Suite 1150 Seattle, WA 98101 Fax: (206) 442-9699 Email: suzanne michaelandalexander.com Holland understands and agrees that if he revokes this ADEA Release pursuant to this paragraph 3, Jefferson County may determine, in its sole discretion, that the Agreement is not effective and/or enforceable and Holland will not be entitled to any of the benefits set forth in this Agreement. 4. Withdrawal of Charge. Holland agrees to dismiss with prejudice any currently pending action filed with any court, administrative agency, or any grievances or appeals against Jefferson County filed in any forum, and Holland further agrees not to file any action regarding the released claims, including without limitation, any claims released under paragraph 2 above. 5. Settlement Payment. In consideration for entering into this Agreement, and as full settlement of any and all claims as set forth in paragraph 2 above, Jefferson County agrees to pay to Holland Eighty Thousand Dollars ($80,000.00) in general damages. The payment will be made as follows: a. A payment of Fifty Thousand Seven Hundred and Sixty -Three Dollars 50,763.00) issued with an appropriate 1099 and payable to Holland as general damages. b. A payment of Twenty -Nine Thousand Two Hundred and Thirty -Seven Dollars 29,237.00) made payable to "Teller & Associates, PLLC" for litigation costs and attorneys' fees. The tax identification number for Teller & Associates, PLLC is 37-1534445. 2 These payments set out in this paragraph 5 will be payable within Ten (10) business days of Holland's delivery of the executed version of this Agreement to the following: Suzanne Kelly Michael Michael & Alexander PLLC 701 Pike Street, Suite 1150 Seattle, Washington 98101 facsimile: (206) 442-9699 email: suzanne@michaelandalexander.com 6. Withdrawal of Public Records Reauests. Holland acknowledges and agrees that he will withdraw immediately and without limitation any and all 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 PRA. Holland further hereby acknowledges and agrees that he will not attempt to bring any claim or lawsuit against Jefferson County related to or because of any public record requests made to date, and further acknowledges and agrees that he is fully releasing Jefferson County as set out above in paragraph 2 for any public records request made by Holland to date against Jefferson County, including all fees and penalties. Holland also hereby acknowledges and agrees that this Agreement and Release constitutes a knowing and voluntary waiver of his right to obtain such documents from Jefferson County. Taxes. Holland acknowledges and agrees that Jefferson County makes no representation as to any tax consequences arising from the above payment in paragraph 5. Moreover, Holland understands and agrees that any tax consequences and/or liability arising from the settlement payment shall be his sole responsibility and this settlement payment is subject to 1099 as set out in paragraph 5 above. Characterization of Separation of Emi loyment and Personnel File Documents. Jefferson County shall rescind the involuntary termination of Holland and shall accept his resignation from Jefferson County effective October 5, 2015, and shall reflect that Holland resigned from his employment with Jefferson County in the documents contained within the Holland personnel file and in any other Jefferson County - maintained records regarding Holland. Jefferson County shall also move from Holland's personnel file into a separate file to be stored separately the following documents: Any documents describing his termination as an involuntary termination, any documents related to the alleged reasons for Holland's involuntary termination of employment, a copy of Holland's Complaint for Damages, and a copy of this Agreement. Remaining in Holland's personnel file would then be any hiring documents typically stored there, the Daily Observation Reports, and a document reflecting his resignation. The separately -stored file shall not be provided in response to a routine request for personnel records or a pre-employment request for personnel documents. Holland understands that this Agreement and any documents placed into the separate file may become the subject of a request for records under the Washington Public Records Act, Chapter 42.56 RCW. Jefferson County will notify Holland of any 3 such Public Records Act request and will afford Holland a reasonable time to seek protection of the release of the records in Court on the grounds of privacy or any other legitimate grounds under the Public Records Act. Holland agrees to update Jefferson County on any changes in address to facilitate the notice required by this section. 9. Employment References. Holland agrees to direct all inquiries from prospective employers to Jefferson County's Human Resources Manager who will only provide Holland's dates of employment and positions held. 10. Governine Law. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Washington, U.S.A. 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 party shall argue or assert than any law other than Washington law applies to the governance or construction of this Agreement. 11. Dispute Resolution. Any action to enforce or interpret the terms of this Agreement, or any portion thereof, shall be commenced exclusively through binding mediation and/or arbitration in Seattle, Washington before a mediator/arbitrator from WAMS. The arbitrator shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The Parties, by their signatures hereto, agree to submit to said mediator/arbitrator's jurisdiction and to waive all defenses related to jurisdiction and venue except as provided herein. The parties explicitly waive any potential right to a jury trial for any action to enforce or interpret the terms of this Agreement or any portion thereof. Except as prohibited by law, the prevailing party in any mediation and/or arbitration brought to enforce or interpret the terms of this Agreement, or any portion thereof, shall be entitled to recover its costs including reasonable attorneys' fees. 12. Authority to Enter Aereement. Holland represents and warrants that he is the true party in interest, that he is fully authorized to execute this Agreement, and that he has not, and will not, sell, assign, transfer, convey, or otherwise dispose of any rights surrendered by virtue of this Agreement. 13. Knowine Release. Holland acknowledges that he has been advised to consult with an attorney and has had an opportunity to do so before signing this Agreement, which Holland has been given a reasonable period of time to consider. 14. Entire Aereement. This Agreement (i) contains the entire understanding of the Parties with respect to the subject matter covered; (ii) supersedes all prior or contemporaneous understandings; and, (iii) may only be amended in a written instrument signed by both Parties. The terms and provisions of this Agreement are contractual and not a mere recital. 15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of any heirs, legal representatives, successors and assigns of Holland. 16. Survival. Holland acknowledges and agrees that if any provision of this Agreement or compliance by Holland or Jefferson County with any provision of this Agreement, constitutes a violation of any law, or becomes unenforceable and/or void, the remaining provisions of this Agreement will remain in full force and effect. 17. Signature in Counterparts and Faxed or Scanned Signatures. This Agreement can be executed in counterparts, with faxed or scanned signatures having the same effect as originals. 18. No Assignment. The parties represent, warrant and agree that they have not assigned, transferred, conveyed, encumbered or in any manner otherwise disposed of all or any portion of the claims, actions, causes of action, suits, potential causes of action, demands, disputes, rights, obligations, or interests of any nature or kind whatsoever covered by this Agreement, whether before or after, they occurred, regardless of whether they have occurred as of the date of this Agreement. 19. Independent Legal Advice and Investigation. In entering into this Agreement, the 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 counsel with respect to the advisability of making the settlement provided in this Agreement. 20. Arms -Length Negotiations. The parties agree that this Agreement has been negotiated at arms -length, with the assistance and advice of competent, independent legal counsel. 21. Admissibility of this Agreement. Any evidence of the existence, terms or negotiation of this Agreement shall be inadmissible in any litigation, provided, however, that such evidence may be offered in any dispute concerning this Agreement itself and the parties may offer such evidence in response to any allegation of misconduct by them. This Agreement has been entered into in reliance upon the provisions of RCW 7.07.030 and ER 408 and similar provisions in federal law, which preclude the introduction of evidence regarding settlement negotiations or agreements. 22. Additional Documents and Action. Each party to this Agreement agrees to execute, or cause their counsel to execute on their behalf, any additional documents and to take any further action, which may reasonably be required to fulfill the obligations of the parties under this Agreement. THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT. DAVID a- . David Holland Date JEFFERSON COUNTY Administrator Date Appr ved as to rm: Philip Hunsucker Date Jefferson County Chief Civil Deputy Prosecuting Attorney