HomeMy WebLinkAboutLW09-280 - Original - No New Gas Tax - Release & Settlement Agreement - 06/15/2009 14Zecordds Mpmagement -)
W KENT„„ NQ1ON Document
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: -FOLK
Vendor Number:
JD Edwards Number
Contract Number: ,CGtJ0 9- r2l d
This is assigned by .Cffit--y Clerk's Office '
Project Name: 1do �&R rw ut1q&bDt, -�
Description: ❑ Interlocal-Agreement ❑ Change Order ❑ Amendment ❑ Contract
Other: {
Contract Effective Date: 1 lC. Termination Date: NA
Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager:IDVtk 7kJ L Oepartment: LJkVJ
Detail: (i.e. address, location, parcel number, tax id, etc.):
S•Public\RecordsManagement\Forms\contractcover\adcc7832 1 11/08
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RELEASE &
SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT("Agreement")by and among
No New Gas Tax, a Washington political committee (formerly also known as
NoNewGasTax.com, currently known as Yes912.com) and Jeffrey Davis, an individual and
Treasurer of No New Gas Tax(collectively"NNGT") and SAN JUAN COUNTY, a political
subdivision of the State of Washington; CITY OF KENT, a political subdivision of the State of
Washington; CITY OF AUBURN, a political subdivision of the State of Washington; CITY OF
SEATTLE, a political subdivision of the State of Washington, (collectively the"Prosecutors")
and the STATE OF WASHINGTON, and FOSTER PEPPER PLLC, a Washington professional
limited liability company, all of whom are collectively referred to as the"Parties"for purposes of
this Release and Settlement Agreement(the"Agreement")."
RECITALS
A. WHEREAS NNGT and Prosecutors are litigants in Thurston County Superior
Court Cause No. 05-2-01205-3,Foster Pepper is counsel of record for the Prosecutors,the State
of Washington attempted unsuccessfully to intervene in said action, and NNGT and the State of
Washington have filed Notices of Appeal to Division II.
B. WHEREAS to avoid the uncertainties and expense of litigation,the Parties have
decided to resolve their differences by settlement.
C. WHEREAS the Agreement contains the entire agreement between the Parties
including the May 12, 2009 CR 2A Stipulation of Settlement, attached hereto and the terms of
which are incorporated herein.
NOW, THEREFORE,in consideration of the mutual promises, covenants and
conditions contained herein the Parties agree as follows:
I. Payment. Within two weeks of the Effective Date (defined below),the
Prosecutors will cause to be paid and delivered to the North Creek Law Firm trust account the
sum of$248,000, and the State of Washington will cause to be paid and delivered to the North
Creek Law Firm trust account the sum of$2,000. Payment and delivery shall be by wire or
check.
2. Release and Hold Harmless. As a material inducement to the Parties to enter
into this Agreement, and in exchange for the consideration set forth herein in this Agreement,the
Parties hereby forever mutually release, hold harmless and discharge the other, and each of them,
of and from any and all charges, complaints, claims, or liabilities (including attorneys' fees and
costs actually incurred)asserted by any Party or Parties Bound (as defined in section 9 below)of
any nature whatsoever, known or unknown relating to or arising from any Party's conduct
immediately prior to the date of this Release arising out of or in any way related to matters
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litigated in Thurston County Superior Court Cause No. 05-2-01205-3.
3. Construction of Release. This is a mutual, full and final release pertaining to the
above-named Parties and is in full compromise and settlement of all claims of every nature and
kind whatsoever, and releases all claims whether known or unknown, suspected or unsuspected.
The Parties agree that the terms of this settlement are for the express purpose of precluding
forever any further additional claims arising out of or in any way connected with Thurston
County Superior Count Cause No. 05-2-01205-3
4. No Admission of Liability. It is understood and agreed that this settlement is the
compromise of a disputed claim and that entering into this Agreement is not to be construed as
an admission of liability on the part of the Party or Parties hereby released; and,that said Parties
deny liability therefore, and intend merely to avoid further litigation and buy their peace.
Nothing in this paragraph shall be construed as preventing any Party from characterizing the
merits of their case or how this settlement reflects on the same.
5. Opportunity to Review with Counsel. The undersigned hereby acknowledge
that they have had the full and complete opportunity to review this Agreement with their counsel,
that they understand it and enter into it as their free and voluntary act and deed.
6. No Inducements. The undersigned further declare and represent that no promise,
inducement, or agreement not herein expressed has been made to the undersigned, and that this
Agreement contains the entire agreement between the Parties hereto, and that the terms of this
release are contractual and not a mere recital. The undersigned further agree to execute any
other documents which may be necessary to effectuate the intent of this Agreement.
7. Warranties.
a. Of Authority to Settle. Each of the individuals signing this Agreement
on behalf of a Party warrants that he has the authority to sign this Agreement and thereby to bind
the Party as defined herein.
b. Against Assignment of Claims. The Parties each warrant that none of
them has assigned or transferred any portion of the claims at issue herein.
8. Motion to Dismiss Underlying Action and Appeal. Promptly following the
Effective Date of this Agreement, or sooner if desired by any moving party,NNGT shall file a
motion seeking to vacate that certain portion of the Court's ruling and Order pertaining to the
liability of the State of Washington for attorneys' fees in this matter,which motion the
Prosecutors will not oppose. NNGT and the State of Washington shall file voluntary dismissals
of all outstanding appeals related to this matter, and NNGT and the Prosecutors will thereafter
jointly file a motion to dismiss the Thurston County Superior Court action. No other motions
will be filed or actions taken, except that NNGT will pursue its Motion to Vacate Protective
Order pending at the time of settlement.
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9. Parties Bound. This Agreement shall be binding on the officers, elected
officials, employees, agents, attorneys, contractors, successors and assigns of each Party
including any individual or entity affiliated with NNGT in any way.
10. Cooperation. Each of the Parties agrees to execute from time to time all
documents that may be necessary to carry out the terms of this Agreement or to effect its
purposes. The obligation imposed by this paragraph shall be specifically enforceable.
11. Integration. This Agreement(together with the aforementioned May 12, 2009
CR 2A Stipulation of Settlement)contains the entire understanding between the Parties in
connection with the subject matter. Each party acknowledges that no other party, or any agent or
attorney of any party,has made any promise,representation, or warranty whatsoever, expressed
or implied,not contained herein,concerning the subject matter hereof,to induce it to execute this
document, and each party acknowledges that it has not executed this document in reliance on any
such promise, representation, or warranty not contained herein.
12. Choice of haw. The interpretation and enforcement of this Agreement shall be
governed by the laws of the State of Washington.
13. Construction of Agreement. This Agreement shall be construed fairly for each
party.
14. Execution in Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original and all of which together shall be deemed a single
document.
15. Facsimile Copy. A facsimile copy of the signatures below shall have the full
force and effect of an original.
16. Mandatory Binding Arbitration: If any dispute arises under this Agreement,
then the matter in dispute must be submitted to Judge Rosselle Pekelis at JDR for binding
arbitration. Said binding arbitration shall be conducted in accordance with the rules and
regulations established by JDR. The expense of the binding arbitration shall initially be shared
equally by those Parties who are in dispute. Ultimately,the expense of the binding arbitration
(including attorneys fees determined reasonable by Judge Pekelis) shall be borne by the non-
prevailing Parties.
17. Effective Date. This Agreement is effective as of the date of the last of the
Parties to sign this Agreement.
THE UNDERSIGNED HAVE READ THE FOREGOING RELEASE
AND AGREEMENT AND FULLY UNDERSTAND IT.
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IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date
and year opposite their signatures below. I have read the foregoing Release and know the
contents thereof, I have full power and actual authority to enter into and sign this agreement,and
I sign the same as my free act and deed.
DATED this LZ!_day of 12009.
EF G G BELOW
Jeffr v s,individually and as
Trews o No New Gas Tax
In consideration of the settlement funds and not naming as payee any persons who or
entities which may have a lien or claim to the settlement funds,the undersigned will hold
releasees harmless against all liens or other such claims,including,but not limited to, liens
provided for under RC W 60.44 and RC W 74.09, and from subrogation claims of any nature,
including,but not limited to, those of the United States of America and the Washington
Depar tents of Labor and Industries Sa 'ai and Heel e 'ces,
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Jeffro vi V
-Odually and as
Tress o o New Gas Tax
4
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STATE OF WASHNGTON }
} ss.
COUNTY OF
On this day personally appeared before me Jeffrey Davis,to me known to be the
individual described in and who executed the within and foregoing instrument, and
acknowledged that he signed the same as his free and voluntary act and deed,for the uses and
purposes therein mentioned..
GIVEN under my hand and official seal this le day of I—Wde , 2009.
oj1y��11J^110Is�j�1
`.`� •°••• y NOTAR LIC and for the State of
,: = NOTAR
Y Washington,residing at: &Aetf,WA
A! 4w , L My commission expires: _(f-al-®
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For the State of Washington:
I have read the foregoing Release and know the contents thereof, and sign the same as my
free act and deed.
DATED this f( day of 12009.
READ BEFORE SIGNING BELOW
Name: D,ism-Irs WLuD�L
Title: 40,5T, k'-77y ,cCW,
STATE OF WASHINGTON }
/ ) ss.
COUNTY OF �k*rsr— )
On this day personally appeared before me D.Thometr u r-4tL,tome known to be
the individual described in and who executed the within and foregoing instrument,and
acknowledged that they signed the same as their free and voluntary act arid deed,for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this-LL day of ,2009.
]�FOT PUBLI n and f r the State of
Was gton,residing at:
M con=ssionexpires: S-3d-lt
NOTARY����
PUKIC
5-30-11 ti=
Ox WASN��
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For San Juan County: i
I have read the foregoing Release and know the contents thereof,and sign the same as my
free act and deed
DATED this of `day of �U —' ,2009.
READ BEFORE SIGNING BELOW
Name: r yp(f� (� 6AgL0rf4)
Title:
STATE OF WASHINGTON }
} 89.
COUNTY OF SA-N�SVPsf }
On this day personally appeared before me /44,L�-�Lt?'Wnie known to be
the individual described in and who executed the within and foregoing instrument, and
acknowledged that they signed the same as thcir froc and voluntary out and deed,for the uses and I
purposes therein mentioned.
GIVEN under my hand and official seal t �f' day of Ei.,c.2.. ,2009.
NOTARY PUBLIC in r r the Stat f
0-�' ()N[A�Z i����i,'
Washington,residing at:
ti.``Q `;SsioN � My commission expires:
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d�J�il•L,£ r:�cf `ems �
151•.0.^
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For City of Seattle:
I have read the foregoing Release and know the contents thereof,and sign the same as my
free act and deed.
DATED this 4_day of 2009.
READ BEFORE SIGNING BELOW
Title: s.,jvLk C.dr fid
STATE OF WASHINGTON }
} ss.
COUNTY OF a /►
On this day personally appeared before me 1 tie l C nr ,to tine known to be
the individual described in and who executed the within and foregoing instrument,and
aclvaowrledged that they signed the same as their free and voluntary act and deed,for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this We%day of .).j ne 2mg.
�A�C�ry�'i 4 v�W
.�•��10♦�s Py NOTARY PUBLIC in d for the State of
s% Washington,residing at; Yr�-
NOTA�I► S My commission expires;
Aye`+G
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For City of Kent
I have read the foregoing Release and know the contents thmeof,and sign the some as rby
flee act and deed.
DATED this 110 day of l)l51 ,2009,
READ BEFORE SIt KING i3FI OW
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Title: 9.0 Tt' Lrry Ar,;MWk V
VATB OF WASHENTOTON }
}
COUNTY OF I .mot, t�
On this day personally appeared before the t�M i� {' n me known to be
the indiv;duel described in and who executed the within and foregoing instrument,and
aot nmvlodged that they signed the same as their free and voluntary act and deed,for the uses and a
pw,poses therein mentioned.
C1T ?!tii undex and offtaial seat this-Lh day of-t 2009.
#90A; Nr
ySt, �`uhq� d *INSUB
IC uiand for the Mate of in at:82gh`4 a wxpuea;
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For City of Auburn:
I have read the foregoing Release and know the contents thereof,and sign the same as my
free act and deed.
DATED this �0 day of 2009.
ZV
M1V ELOW
7Nram : ��h
STATE OF WASHINGTON }
} ss.
COUNTY OF f� }
On this day personally appeared before me_�0—"f t P GU ,to me known to be
the individual described in and who executed the within and foregoing instrument,and
acknowledged that they signed the same as their free and voluntary act and deed,for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this l U day of 12009.
```.����»l\li 111{
R�1B. S7-01 �fa NOTARY PLVLIC'LIC t e fate of
Washington, at: GVP4
My commission expires: `T2j o j
r,
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For Foster Pepper PLLC:
I have read the foregoing Release and know the contents thereof,and sign the same as my
free act and deed.
DATED this/f day of f 2009.
RE ORE SIGNING BELOW
Name: Q�t►E"LL/N/
Title: 146�4446;i _-
STATE OF WASENGTON }
COUNTY OF CAJ- }ss.
t
On this day personally appeared before me Cket4es NDmf I"":,to me]mown to be
the individual described in and who executed the within and foregoing instrument,and
acknowledged that they signed the same as their flee and voluntary act and deed,for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this I �S day/of. 2009.
_ �0$1ON NOTARY PUBLIC in and for the State o
Washington,residing at: E
r
.0 Cti ,c 'P•
fgoN $ My commission expires: an 2O!1
'41111WNS\`�,,
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May 12, 2009
5:30 pm
Stipulation of Settlement
San Juan County et al v,NoNewGasTax and Davis
Plaintiffs,Foster Pepper PLLC and the State of Washington will pay a total of:
$250,000 cash payable within two weeks of thelReleases being executed ; said releases
to be promptly circulated; and
in consideration therefore, Davis t individually and on behalf of
nonewgastax.com whys successor is Yes onI-912 will execute appropriate release and
hold harmless agreem�nTinc u&Ai g but not limited to the cities of Seattle, Kent and
Auburn and county,their elected and appointed officials and employees, in their public
and individual capacities,their attorneys, including but not limited to Foster Pepper
PLLC and all of its attorneys and employees and the State of Washington.
This settlement includes all claims that have been made or could have been made for
damages, injunctive and declaratory relief, or any other form of monetary or non-
monetary relief, and attorney fees and costs, including but not limited to attorney fees
under the civil rights statutes. It is intended to be a full and complete settlement with no
claims outstanding or remaining.
It is understood that the state of Washington and Defendants will move the court for an
order vacating the attorney fees awarded to be paid by the State of Washington and
plaintiffs shall not oppose said motion. No other motions or actions will be taken, except
that the parties will promptly enter into a stipulation and order of dismissal of the court
case after the court's ruling on the contemplated motion.
This agreement is entered into pursuant CR 2A and anticipates additional formal 4
documents to be prepared by counsel consistent with the terms herein,_The pa ties�agreeee ���
that Rosselle Pekelis will arbitrate any disputes er this docurnen^r a rn-din �v�aanw��
arbitration. ��
Release erein shall b mutual. Y-S ,r, 'Axi� l.u._e �/,�
A% 0. (AS I � 22Wwfi tvr- r
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