HomeMy WebLinkAboutSettlement Agreement - OT General SETTLEMENT AGREEMENT
The undersigned parties agree to the following full settlement of all claims,counterclaims,
and defenses between Cady Tree Farm,LLC,Mary Jo Cady,Alan Cady,and Donald Cady
(collectively"Cady")and the Belfair Water District No. 1 ("District"),related to the lawsuit filed
under Mason Court Superior Court Cause No. 11-2-00094-3 ("lawsuit").
Recitals:
A. Cady owns and manages real property within Mason County.
B. The District is a Washington municipal corporation located and doing business in Mason
County, Washington.
C. On or about September 1, 2010, District agents performed land modification, including but
not limited to vegetation damage and removal, excavation/soil relocation, and modification
of surface water patterns. The land modification, vegetation damage and removal,
excavation/soil relocation, and modification of surface water patterns was performed by
District agents on both the District property and the Cady property, without authorization by
Cady.
D. The Cady property suffered damage, including but not limited to vegetation removal and
damage, soil excavationlrelocation, and surface water-related damage such as siltation and
land erosion. Cadys have related concerns regarding surface water-management, and
associated aesthetic impacts.
E. RCW 4.24.630 provides that every person who goes onto the land of another and who
removes timber, crops, minerals, or other similar valuable property from the land, or
wrongfully causes waste or injury to the land is liable to the injured party for treble the
amount of damages caused by the removal,waste or injury.
F. Cady filed the lawsuit asserting that the District is liable for damages to the Cady property
arising from the District's unauthorized and unjustified physical entry upon the Cady
property and land modifications undertaken on the Cady property.
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Settlement:
The parties desire to resolve the lawsuit all related claims and causes of action arising from the
trespass action,as set forth herein:
1)PERMIT: The District has submitted supplemental information to Mason County to
specifically identify the Cadys'property on the existing County permit application(copy
of related permit documentation attached as EXHIBIT hereto,and incorporated by
reference). The District/District's agents are solely responsible for compliance with all
terms and conditions of the permit,and the District/District's agents indemnify Cady in
this respect,including but not limited to work performed on the Cady property. The
District agrees to timely complete all work/action set forth on the permit/plan set attached
hereto in a manner compliant with all applicable codes and regulations,and the District
bears the sole responsibility for all related costs and expenses.
2)CONTRACTORS/AGENTS: The District has identified all contractors/agents who will
be performing work on the Cadys'property(see list of contractors/agents attached as
EXHIBIT_hereto,and incorporated by reference). Should Cadys object to a particular
contractor/agent,the parties will cooperate in good-faith to determine an agreeable
alternative contractor/agent with respect to work performed on the Cady property.
3)PLAN CONTENTS: The District has modified the plan set to incorporate placement of 4
inch minus quarry rock packed into the ground in the vicinity of the catchment device,
including the road and hill from the road to the catchment device(see final agreed plan
document attached as EXHIBIT_hereto,and incorporated by reference). The
District's engineer and relevant District agents agree to coordinate with Cadys on-site to
ensure that the specific location of the rock placement is sufficient and agreeable to
Cadys.
4)PLAN CONTENTS: The modified final plan set attached hereto specifies that the District
bears the responsibility of replacing the culvert depicted on Map 2(verify reference).
5)LOG PLACEMENT: The District shall replace the large log in its original location to
block access to the Cady property upon completion of the work set forth on the agreed
plans.
7)ATTORNEY'S FEES AND COSTS: The District agrees to pay Cady's attorney's fees,
costs and expenses actually incurred in this matter, $ (approximately$3,000-
final detailed accounting to be provided upon request).
8)MONETARY COMPENSATION: The District agrees to pay Cadys$12,000.00,which
represents damage calculations by Ron Gold,trebled per statute,then reduced by one-
third in recognition of fact that District is supplying materials and labor to complete
restoration,with the resulting figure of$17,800.00 reduced by$5,800.00 to agreed total
of$12,000.00.
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10)FUTURE DISPUTE RESOLUTION PROCESS: Any controversy or claim arising out
of or relating to this settlement,or its breach, shall be settled by binding arbitration in
accordance with Chapter 7,06 RCW and the Rules of Mandatory Arbitration for the
Superior Court of the State of Washington,with the arbitrator to be assigned as follows:
(a) by the parties' mutual agreement and selection of a local arbitrator experienced in
relevant subject matter; (b)by mutual agreement and selection of an out-of-area arbitrator
(for example,AAA arbitrator),with applicable rules to be mutually agreed by the Parties
at the time of selection of the arbitrator;or(c)in the event the parties are unable to
mutually agree to the foregoing,by binding arbitration in accordance with Chapter 7.06
RCW and the Rules of Mandatory Arbitration for the Superior Court of the State of
Washington,with the arbitrator to be assigned by the Mason County Superior Court
pursuant to standard process employed by the Court for assignment of arbitrators. The
Parties specifically agree that the arbitrator shall have injunctive powers and that the
arbitrator's decision shall be final. The Parties hereby waive the right to request trial de
novo. The prevailing party in any future arbitration shall be entitled to recover their costs
including reasonable attorney fees.
11)BINDING EFFECT. This agreement shall be fully binding on both Parties' successors
in interest,heirs,or assigns.
12)WAIVER. No waiver of any terms,provisions or conditions of this agreement whether
by conduct or otherwise in any one or more instances shall be deemed to be or construed
to be as a further or continuing waiver of any such term,provision or condition or as a
waiver of any other term,provision or condition of this agreement.
13) SEVERABILITY. If any term or provision of this agreement or any application thereof
to any person,entity or circumstance shall to any extent be invalid or unenforceable,the
remainder of this agreement or the application of such terms or provisions to persons,
entities or circumstances other than those to which it is held invalid or unenforceable
shall not be affected thereby and each term and provision of the agreement shall be valid
and enforceable to the fullest extent permitted by law.
14)COUNTERPARTS. The Parties intend that this Agreement may be executed in
counterparts which when taken together shall constitute one Agreement.
15) SETTLEMENT AND RELEASE. This settlement agreement constitutes a full and
final settlement of the lawsuit and all related claims and causes of action. To the extent
the terms of this settlement agreement are performed by the District,Cady hereby
releases and forever discharges the District and its staff and commissioners from such
claims and causes of action.
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SIGNATURE PAGES—CAD Y/BEL FAIR WATER DISTRICT TRESPASS SETTLEMENT
DOCUMENT
Dated this_day of August,2011
For Cady: For District:
CADY Its:
CADY Its:
Approved as to Form:
Kristin L. French,counsel for Cady Michael B.Tierney,counsel for District
WSBA No. 41274 WSBA No. 13662
STATE OF WASHINGTON )
:ss
COUNTY OF MASON )
On this day personally appeared before me ,to me known to
be the individual described herein and who executed the within and foregoing instrument, and
acknowledged the said instrument to be free and voluntary act and deed for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this day of 12011.
NOTARY PUBLIC IN AND FOR THE STATE
of Washington,residing at
My commission expires:
4
I
SIGNATURE PAGES—CAD YIBELFAIR WATER DISTRICT PUBLIC RECORDS
SETTLEMENT DOCUMENT
STATE OF WASHINGTON )
:ss
COUNTY OF MASON )
On this day personally appeared before me , to me known to
be the individual described herein and who executed the within and foregoing instrument, and
acknowledged the said instrument to be free and voluntary act and deed for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this_day of ,2011.
NOTARY PUBLIC IN AND FOR THE STATE
of Washington,residing at
My commission expires:
STATE OF WASHINGTON )
:ss
COUNTY OF MASON )
On this day personally appeared before me ,to me known to
be the individual described herein and who executed the within and foregoing instrument, and
acknowledged the said instrument to be free and voluntary act and deed for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this day of ,2011.
NOTARY PUBLIC IN AND FOR THE STATE
of Washington,residing at
My commission expires:
5
SIGNATURE PAGES—CADYI BELFAIR WATER DISTRICT PUBLIC RECORDS
SETTLEMENT DOCUMENT
STATE OF WASHINGTON )
:ss
COUNTY OF MASON )
On this day personally appeared before me ,to me known to
be the individual described herein and who executed the within and foregoing instrument, and
acknowledged the said instrument to be free and voluntary act and deed for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this_day of ,2011.
NOTARY PUBLIC IN AND FOR THE STATE
of Washington,residing at
My commission expires:
STATE OF WASHINGTON
:ss
COUNTY OF MASON )
On this day personally appeared before me , to me known to
be the individual described herein and who executed the within and foregoing instrument, and
acknowledged the said instrument to be free and voluntary act and deed for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this day of ,2011.
NOTARY PUBLIC IN AND FOR THE STATE
of Washington,residing at
My commission expires:
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