HomeMy WebLinkAbout2022 03 03 PHMPR Settlement Agreement - FULLY EXECUTEDSETTLEMENT AGREEMENT
AND RELEASE!
1 This document is being negotiated and is subject to the deliberative process exemption of the
Public Records Act. Approval of any final agreement is conditioned on approval at an open
public meeting by motion made and passed by the Jefferson County Board of County
Commissioners.
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SETTLEMENT AGREEMENT AND RELEASE
This Agreement is made between Settling Parties. (All tenns in bold m this
Agreement are defined in Section 2.4, below.)
l RECITALS
1.1 WHEREAS, PHMPR or its predecessor in interest applied to amend the Titles
17 & 18 JCC and enter into a development agreement with Jefferson County on April 16, 2008,
consistent with JCC I8.45.090(l)(c), which were deemed complete on May 14, 2008 per JCC
18.40.110(4);
1.2 VVHEREAS, the Appendix to FEE SCHEDULES of the JCC, 11-030. Land use
approval applications (Unified Development Code) states, "'All Fees Are Based on Hourly
Minimum (Base). Additional after Minimum Base Hourly Fees May Be Charged If the Level of
Effort Exceeds the Base Fee Charge;"
1.3 WHEREAS, the level of effort required to process PHMR's Application
exceeded the level of effort covered by the base fee charge;
1.4 WHEREAS, by PHMPR's Application, it agreed to pay the negotiated base fee
for the application, plus the agreed to hourly rates of Jefferson County's staff and other
reasonable costs incun-ed by Jefferson County in processing PHMPR's application;
l.5 WHEREAS, PHMPR on January 28, 2009 and on February 11, 2012 (amended
on March 16, 2015), PHMPR entered into agreements to pay on-going consulting costs;
1.6 WHEREAS, PHMPR paid approximately $300,000 in ongoing hourly rates of
Jefferson County's staff and other costs incurred by Jefferson County in processing
PHMPR's Application as those fees were incurred until sometime in 2016;
1.7 WHEREAS, Jefferson County emailed PHMPR on January 23, 2017 notifying
it of non-payment of invoices;
1.8 WHEREAS, PHMPR responded to Jefferson County's January 23, 2017 email
on January 24, 2017, expressing frustration with the lack of progress on the PHMPR Application
and refusing to pay until the PHMPR Application was issued;
1.9 'WHEREAS, the JCC currently has no mechanism for requmng ongoing
payments on outstanding invoiced amount for Jefferson County's staff and other costs incurred
by Jefferson County in processing an application for a building or a development pennit, once
the base fee has been paid, so Jefferson County can refuse to perfonn additional work until
payment or expend additional resources to litigate with the applicant;
1.10 WHEREAS, on June 4, 2018, the Jefferson County Board of County
Commissioners adopted Ordinance No. 03-0604-18 (approving development agreement and
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regulations for the Pleasant Harbor Master Planned Resort), and Ordinance No. 04-0604-18,
approving the development agreement negotiated between Jefferson County and PHMPR;
1.11 WHEREAS, The Brinnon Group appealed Ordinance No. 03-0604-18
(approvjng development regulations for the Pleasant Harbor Master Planned Resort) to the
Westem Washington Grown Management Board and appealed Ordinance No. 04-0604-18
(approving the development agreement negotiated between Jefferson County and PHMPR) to
the Kitsap County Superior Court;
1.12 WHEREAS, The Brinnon Groups' appeal of Ordinance No. 03-0604-18
(approving development regulations for the Pleasant Harbor Master Planned Resort) to the
Western Washington Grown Management Board was denjed on January 30, 2019;
1.13 WHEREAS, Kitsap County Superior Court issued its decision in The Brinnon
Group's appea) of Ordinance No. 04-0604-18 (approving the development agreement negotiated
between Jefferson County and PHMPR) on March 28, 2019 and remanded the development to
the Jefferson County board of county commissioners;
1.14 WHEREAS, Jefferson County and PHMPR modified the development
agreement on July 22, 2019 by Ordinance No. 08-0722-19 to comply with the March 28, 2019
Kitsap County Superior Court decision;
1.15 WHEREAS, no appeal was filed of the modified development agreement
adopted in Ordinance No. 08-0722-19 and the Development Agreement requested in PHMPR's
Application became final;
1.16 WHEREAS, it took some time to assemble the over 1,000 pages that comprise
the entire final modified development agreement requested in PHMPR's Application and all of
its exhibits and appendices;
1.17 WHEREAS, Jefferson County sent an invoice to PHMPR on June 9, 2020, for
payment of outstanding staff hours due and owing;
1. t 8 WHEREAS, on July 6, 2020, PHMPR disputed the amount of the June 9, 2020
invoice on the grounds that the total fees incurred were excessive, certain entries were block-
billed which made it difficult to assess the work that was done and whether the effort expended
was reasonable, among other issues, resulting in the Billing Dispute;
t. t 9 WHEREAS, Jefferson County and PHMPR have been negotiating to resolve
the Billing Dispute;
1.20 WHEREAS, Jefferson County and PHMPR wish to resolve the billing dispute
and all Past Claims;
1.21 WHEREAS, Settling Parties desire to avoid the cost of additional attorney's
fees and expenses associated with the Past Claims;
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1.22 WHEREAS, Settling Parties have been discussing a Future Staffing
Agreement and expect to come to agreement on such agreement in the next 60 days;
1.23 WHEREFORE, Settling Parties hereby agree to the terms and conditions in this
Agreement;
1.24 NOW, THEREFORE, in consideration of the mutual promises and obligations
in this Agreement and pursuant to the material tenns 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 applies to and is binding upon, and inures to the benefit of each of Settling
Parties and their Related Persons. The persons signing this Agreement on behalf of 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.
2.3 Purpose of this A greement.
The purpose of this Agreement is to resolve the disputes between Settling Parties regarding the
matters released in Section 2.6.
2.4 Definitions.
2.4.1 Words used in this Agreement are to be taken and understood in their natural and
ordinary sense Words not defined in this request are meant to have their usual and ordinary
meaning in the context used and as defined in the Dictionary by Merriam-Webster
(https://www.merriam-webster.com/), 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 apply.
2.4.2 Singular/Plural: The use of the singular form of a word includes the plural form
and vice versa.
2.4.3 And & Or: "and" means "or" and '"or" means "andt so as to make the tenn
inclusive rather than exclusive.
2.4.4 "Agreement" means this Settlement Agreement and Release.
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2.4.5 "Billing Dispute" means the dispute between Settling Parties about the total
amount due by PHMPR to Jefferson County for the hourly rates of Jefferson County's
qualified staff capable of providing comments and approvals for multi-level buildings that can be
constructed in a modular format and other reasonable costs incurred by Jefferson County in
processing PHMPR's Application.
2.4.6 "Claims" means any and all damages, for reasonable attomey'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 occmTing, whether at law or in
equity, whether known or unknown, 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 related to the Billing Dispute.
2.4.7 "Effective Date" means the date described in Section 2.2.
2.4.8 "Future Staffing Agreement'' means the planned agreement between the parties
addressing Jefferson County's review of future entitlement applications from PHMPR) how
fees will be assess and invoiced to PHMPR, and payment of the invoices by PHMPR.
2.4.9 ''Jefferson County" means Jefferson County, Washington and all of its Related
Persons.
2.4.10 "JCC" means the Jefferson County Code, published by Code Publishing at
https://WW\v.codepublishing.com/W A/JeffersonCounty/.
2.4. l l "Past Claims" means any and all Claims that Settling Parties had against each
other on the Effective Date.
2.4.12 "PHMPR" means Pleasant Harbor Marina and Golf Resort) LLC, a Washington
limited liability partnership, UBI Number:602 815 685 and all of its Related Persons.
2.4. l 3 "PHMPR's Application" means PHMPR's April 16, 2008 application to amend
the Titles 17 & 18 JCC and enter into a development agreement with Jefferson County.
2.4.14 "Related Persons'' means a Settling Party's assigns, attorneys, administrators,
departments, employees, executors, heirs, insurers, officers (including elected and appointed
officers), officials, predecessors in interest) personal representatives, successors, subrogees,
trustees, and volunteers, including each of their agents, marital conununities, and representatives.
2.4.15 "Release" means to waive, abandon, relinquish, discharge any rights, C]aims,
causes of action) Lawsuits, suits, or actions, of any sort, from now until the end of time.
2.4.16 "Settlement Payment" means the payment required by Section 2.5.
2.4.17 "Settling Party" means one of th.e Settling Parties.
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2.4.18 "Settling Parties" means, Jefferson County and the PHMPR, collectively.
2.5 Settlement Payment.
The parties have agreed on a settlement amount of $167,646.33 (one hundred sixty-seven
thousand, six hundred forty-six dollars and thhty-three cents). The settlement amount shall be
paid by PHMR as follows: (a) Within 30 calendar days of the Effective Date, PHMPR shall
pay to Jefferson County $83,823.17 (eighty-three thousand, eight hundred, twenty-three dollars
and seventeen cents), one-half of the settlement amount; (b) Within 30 days of completion of the
Future Staffing Agreement, PHMPR shall pay to Jefferson County $83,823.16 (eighty-three
thousand, eight hundred, twenty-three dollars and sixteen cents), the remaining one-half of the
settlement amount.
2.6 Mutual Release.
Settling Parties, on their own behalf and on behalf of their Related Persons, hereby Release
each other and all of their Related Persons from the Past Claims. Settling Plaintiffs expressly,
lmowingly, and voluntarily waive and relinquish any and all rights that they may have under any
state or federal statute or case law that 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 the time of
executing the release, which if known by the settling party must have materially affected the
settlement. Settling Plaintiffs understand and acknowledge the significance and potential
consequences of releasing unknown claims and hereby assume the risk of any changed
circumstances or facts conceming the unknown claims.
2.7 No Admission of Liability.
Settling Parties agree that this Agreement is not an admission that any Settling Party is
liable to any other Settling Party for the Past Claims. Settling Parties specifically
deny liability and declare that this settlement is to secure peace and end further litigation.
3 GENERAL PROVISIONS
3.1 Controlline Law.
It is understood and agreed that this Agreement is entered into in the State of Washington. It is
agreed that this Agreement is 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 may
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 will bear their own attorney's fees and costs related to the matters released in
Section 2.6. Further, in the event of any controversy, claim or dispute between any of Settling
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Parties arising out of this Agreement, Settling Parties will bear their own attorney's fees and
costs.
3 .3 Entire Agreement.
This Agreement is an integrated agreement and it contains the entire agreement between
Settling Parties relating to this subject matter and its te1ms 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 conununications between Settling Parties or
their representatives relative to the matters contained in this Agreement.
3.4 No Severability.
4The terms of this Agreement are not severable. If any provision of this Agreement or the
application of this Agreement to any person or circumstance shall be invalid, illegal) or
unenforceable to any extent, the remainder of this Agreement and the application this
Ag1·eement shall not be enforceable.
4.1 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.
4.2 No Third-Party Beneficiaries.
Settling Parties do not intend, and nothing in this Agreement will 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.
4.3 Modification of this A2,reement.
This Agreement may be amended or supplemented only by a writing that is signed by duly
authorized representatives of all Settling Parties.
4.4 Effect of Partial Invalidity.
If any tenn or provision of this Agreement is found to be invalid, in violation of public policy or
unenforceable to any extent, such finding will not invalidate any other tenn or provision of this
Agreement and such other terms and provisions will 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 will 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.
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4.5 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.
4.6 Facsimile and Electronic Signatures.
Settling Parties agree that a facsimile, copied, or scanned signature of this Agreement will have
the same force and effect as an original signed by all Settling Parties.
4.7 Cooperation.
Settling Parties agree that they will facilitate, in good faith, the effectuation of this Agreement.
4.8 Voluntary Undertaking.
Settling Parties aclmow]edge 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.
4.9 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 tum 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 will
remain in all respects effective and enforceable and not subject to termination or rescission
because of any such different facts.
4.10 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.
4.11 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.
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4.12 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.
4.13 Joint Drafting Effort.
Settling Parties acknowledge and agree that the drafting of this Ag1·eement has been a joint
effort by Settling Parties and that this Agreement will not be deemed prepared or drafted by
any one of Settling Parties. The tenns of this Agreement will 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.
4.14 Admissibility of this Agreement.
Any evidence of the existence, terms or negotiation of this Agreement will be inadmissible in
any Lawsuit between 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.
4.15 Reference to Sections in this Ag reement.
Any reference to a section in this Agreement is a reference to a section of this Agreement,
unless clearly stated to the contrary.
4.16 Headings.
The section headings in this Agreement are included as a matter of convenience and are not
intended to and will not be construed as affecting the terms and conditions of this Agreement.
5 Representations and Warranties.
Settling Parties represent and warrant:
5.1 That each is fully authorized to enter into this Agreement;
5.2 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,
5.3 That each has read this Agreement in its entirety and know the contents of this
Agreement, that the tenns of this Agreement are contractual and not merely recitals, and that
each has signed this Agreement, having obtained the advice of legal counsel.
(SIGNATURES FOLLOW ON NEXT PAGES)
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THE UNDERSIGNED HAVE READ AND UNDERSTAND THE FOREGOING AND
AGREE TO ITS TERMS:
PLEASANT HARBOR MARINA AND GOLF RESORT, LLP
M. Garth Mann, nager
Date: /I> f/ R-C {'f "3 / Z-Z..
Approved as to Form:
JT Cooke, Counsel for PHMPR
Date: -----------
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THE UNDERSIGNED HAVE READ AND UNDERSTAND THE FOREGOING AND
AGREE TO ITS TERMS:
JEFFERSON COUNTY
Mark McCaulc),
Interim County dministrator
(as delegated by the Board of County Commissioners
on December 20, 2021) 0 /,;
Date: ,J!)9 :;t-. P"-. I
Approved as to Form:
February 25, 2022
Philip C. Hunsucker,
Chief Civil Deputy Prosecuting Attorney
Date: -----------
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VENDOR 10 U,JEFFE;,ENDOR NAME Jefferson CoJA:t_.9y56 ALBERTA LTD. CHEQUE NO. 03019
DATE M M D Y REFERENCE NO. DESCRIPTION INVOICE AMOUNT HOLDBACK
2/28/22 2022 settl 83823.16
3019 83823 .16 .00 83823 1 6
DATE TOTALS
============ THIS CHEQUE HAS A MICROPRINT 8-0ROER Al/0 A FULL WAi EFlMIIRK. liOLO VP TO A.(.l<,;HT SOURCE TO VIEW =============
1429256 ALBERTA LTD.
7370 SIERRA MORENA BLVD. SW
CALGARY, ALBERTA T3H 4H9
PHONE: (403) 256-4151
BMO BAMK OF MONTREAL
340-7TH AVENUE SW DATE
CALGARY, ALBERTA T2P OX4
03019
0 3 O 3 2 0 2 2
M M D D Y 'i Y Y
$*****83,823.16
Pay: ***Eighty-three thousand eight hundred twenty-three dollars and 16 cents
TO THE
ORDER
OF
Jefferson County
621 Sheridan Street
Port Townsend, WA 98368
PER
PER
1429256 ALBERTA LTD.
VENDOR ID UJEFFE'JDOR NAME
DATE M M O Y REFERENCE NO.
2/28/22 2022 settl
DATE
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3/03/2 HEQUE
NO.
Jefferson County
DESCRIPTION INVOICE AMOUNT
83823 .. 16
3019 TOTALS 83823.16
US FUNDS
1429256 ALBERTA LTD.
CHEQUE NO. 03019
HOLDBACK NET AMOUNT
.00 83823.16
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