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HomeMy WebLinkAboutCAG1999-0533 - Original - King County Library System - Release and Settlement Agreement - 08/27/2002 U9/IV/LUVL 11 U0 rnn RELEASE AND SETTLEMENT AGREEMENT THIS RELEASE AND SETTLEMENT AGREEMENT ("Agreement") is made by and between the King County Library System ("Library System") and the City of Kent and the City of Kent Police Department (collectively, "the City"), effective this 27th day of August, 2002 RECITALS 1. Parties. The King County Library System is a public corporation, that owns and operates libraries in King County, Washington The City of Kent is a municipality located in King County Washington. The City of Kent Police Department is a division of the City of Kent, Washington 2. Dispute. The City seized two computers owned by the Library System without a warrant to search for evidence of to be used in a child pornography investigation under Kent Police Department case number 02-07492 The Library System brought suit against the City seeking a Writ of Replevin, a Declaratory Judgment, and monetary relief for violations of the Washington State Constitution and 18 U S C. § 1983 The action is entitled King County Library System v Cif of Kent, pending in U S District Court, Western District of Washington, Cause No CO2-1602 MJP ("Lawsuit") Judge Pechman granted the Library System a Writ of Replevin requiring the return of the computers, and a preliminary injunction preventing the City from searching the computers pursuant to a post seizure search warrant and placing conditions upon future searches (the "Preliminary Injunction") The City has returned the computers. Pursuant to the preliminary injunction, the Library System has held the computers in a secure location to prevent the destruction or loss of evidence that may be on the computers 3. Settlement. The Parties are willing to compromise all claims to avoid the expense of litigation and in furtherance of the sound policy of law supporting settlement of disputes This Agreement sets forth the terms of the Parties' settlement AGREEMENT NOW, THEREFORE, in consideration of the foregoing and other obligations set forth below, the Parties agree as follows: 4. Payments by the City of Kent. The City agrees to pay $30,000 00 of the Library System's attorney fees incurred in this matter The City additionally agrees to pay $670 00 of the costs incurred by the Library System in this matter, Payments shall be made within ten (10) days of the execution of this Agreement All payments shall be made payable to 'Riddell Williams P S in Trust for the King County Library System " 5. The Computers, The Library System may return the computers to regular service within fifteen (15 days) of the effective date of this Agreement, unless the Kent City Attorney's office obtains a valid warrant allowing the computers to be seized in the interim The City agrees that it will not attempt to seize the computers in furtherance of conducting its current child pornography investigation without first obtaining a valid 291/321641 01 M27=1547/47664 00045 1 09/10/2002 17 ub rsa too a0a iroo search warrant, the terms of which will be construed as narrowly as possible to protect the Library System's patrons' First Amendment rights. If the City obtains a valid search warrant for the computers, the City will return the computers to the Library System in good working order within fifteen (15) days after seizing the computers 6. Preliminary Injunction. The preliminary injunction issued by Judge Pechman will remain in effect during the remainder of the City's investigation of child pornography being accessed on these computers under Kent Police Department case number 02-07492 7. Release. Except as otherwise set forth in this Agreement, the Parties for themselves, their elected and appointed officials, representatives, agents, and for any other person or persons, or entity or entities acting by, for, or through them, hereby fully and unconditionally surrender to and release, acquit, and forever discharge one another and their representatves, elected and appointed officials, employees, and all persons acting by, through, under or in concert with them, from and against any and all manner of action or actions, cause or causes of action, liabilities, losses, suits, damages, costs, expenses (including but not limited to attorney's fees) arising from or relating in any way to the subject matter of the Lawsuit 8. Filing Motions of Dismissal of the Lawsuit. The Parties shall dismiss with prejudice the claims presently pending in the Lawsuit, except that the dismissal will leave the preliminary injunction in effect as provided in Section 6 The Library System will prepare and present a Stipulated Order of Dismissal of the Lawsuit 9. Entire Agreement; Integration. This Agreement contains all the agreements and commitments of the Parties relating to or connected with the Lawsuit and the subject of the Lawsuit This Agreement is intended by the Parties as the final expression of their agreement and therefore incorporates all negotiations of the Parties and is the entire agreement of the Parties This Agreement may not be amended, waived or modified in any manner without pnor written consent of the party against whom the amendment, waiver or modification is sought to be enforced 10. Independent Judgment, Belief and Knowledge. The Parties declare and represent that in making this Agreement, they understand and agree that they have read it carefully, know the contents and have signed as a pre-reasoned and independent act. Each relies wholly upon its own judgment, belief and knowledge and has not been influenced to any extent whatsoever in entering this Agreement by any representations or statements made by the other Parties or by any person or persons representing the other Parties 11. Construction; Advice of Counsel. The Parties acknowledge that they have consulted with legal counsel of their own choosing in negotiating and entering this Agreement The Parties further agree that this Agreement shall be construed without any presumption or rule requiring that it might be construed against the party causing the Agreement or any part of it to be drafted. 12. Authority to Execute. Each Party executing this Agreement warrants and represents that he or she has the authority to and does bind the Party on whose 291/321641 01 082702/1547/47664 00045 2 09/10/2002 17.06 FAX 206 3Y9 170e !(lUVLLL r,iLLiniuu a behalf he or she signs. The parties agree to execute any additional documents which may be reasonably necessary to carry out the parties' obligations and undertakings set forth in this Agreement 13, Counterparts. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as the original instrument as if all the Parties to the counterparts had signed the same instrument. A signature transmitted by facsimile shall be effective to bind any Party hereto, but each signatory shall deliver an original, ink signature to legal counsel for the other parties to this Agreement. 14. Severability of Agreement. In the event that any provision of this Agreement or any portion thereof is declared by a court of competent jurisdiction to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent possible so as to effect the intention of the Parties, and the remainder of this Agreement shall continue in full force and effect 15. Acknowledgement; Binding Effect. Each of the Parties to this Agreement represents and warrants that they have read and understand this Agreement, that they have been represented by legal counsel of their selection in connection with their decision to enter into this Agreement, that they have had ample opportunity to discuss this Agreement and its terms with counsel, and that they have actual and full authority to enter into this Agreement on behalf of the persons or entities releasing claims under this Agreement This Agreement is binding upon the Parties and on their legal representatives, successors, and assigns, and inures to the benefit of the Parties hereto and their legal representatives, successors and assigns. 16. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first written above KING COUNTY LIBRARY SYSTEM William Ptacek, Director CITY OF KENT, CITY OF KENT POLICE DEPARTMENT By: Thomas Brubaker, City Attorney 29IM1641 01 0 627 02/1 54 7/4 7 6a4 D0045 3 09/10/2002 17'Ub rAA [Uo 4o> irvo behalf he or she signs. The parties agree to execute any additional documents which may be reasonably necessary to carry out the parties' obligations and undertakings set forth in this Agreement. 13. Counterparts. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as the original instrument as if all the Parties to the counterparts had signed the same instrument. A signature transmitted by facsimile shall be effective to bind any Party hereto, but each signatory shall deliver an original, ink signature to legal counsel for the other parties to this Agreement. 14, Severability of Agreement. In the event that any provision of this Agreement or any portion thereof is declared by a court of competent jurisdiction to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent possible so as to effect the intention of the Parties, and the remainder of this Agreement shall continue in full force and effect, 15. Acknowledgement; Binding Effect, Each of the Parties to this Agreement represents and warrants that they have read and understand this Agreement, that they have been represented by legal counsel of their selection in connection with their decision to enter into this Agreement, that they have had ample opportunity to discuss this Agreement and its terms with counsel, and that they have actual and full authority to enter into this Agreement on behalf of the persons or entities releasing claims under this Agreement. This Agreement is binding upon the Parties and on their legal representatives, successors, and assigns, and inures to the benefit of the Parties hereto and their legal representatives, successors and assigns 16. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first written above, KING COUNTY LIBRARY SYSTEM By. William Ptacek, Director CITY OF KENT, CITY OF KENT POLICE DEPARTMENT By (�t.lA Thomas Brubaker, City Attorney 291/321641 01 03270271547/47684 00045 3