Settlement Agreement: (de) Occupy case against Honolulu city government

8/12/2019 Settlement Agreement: (de) Occupy case against Honolulu city government

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RELEASE. INDEMNIFICATION AND SETTLEMENT AGREEMENTKNOW ALL MEN BY THESE PRESENTS:

This Release, Indemnif icat ion and Settlement Agreement ("Agreement")memorializes the settlement of the claims of RELEASORS De-Occi[ipy Honolulu, CatherineRussell, Madori Rumpungworn, Christopher Smith, and Dominic James as set f o r t h in theTh i r d Amended Complai nt filed in the United States District Court for the District of Hawaiistyled De-Occupy of Honolulu, et al. v. City and County of Honolulu, et al Civil No. 1:12-CV-00668 JMS/KSC ("Lawsuit").

The undersigned parties to this document agree as follows:1 . This doc umen t is a Release, Inde mnificat ion and Settlement Agreement

here inaf ter , "Agreement").2. Named Party. PLAINTIFFS/RELEASOR. The persons/ entity named belo w

shall be hereinafter referred to as RELEASOR :De-Occupy HonoluluCatherine RussellMado r i RumpungwornChristopher SmithDominic James

3. Named Party. DEFENDANT/RELEASEE. The enti ty named below shall bere f e r red to as RELEASEE :

City and County of HonoluluThe RELEASOR and RELEASEE identified above shall be referred to herein collectively, asthe "Named Parties".

4. Definit ion of Terms.a. RELEASOR and RELEASEES. Unless otherwi se expressly stated

in this Agreement , the terms RELEASOR and RELEASEE , shall MEAN and be deemed toINCLUDE all of the fol lowi ng: the Named Parties and thei r respective past, present andf u tu re officers, dire ctors, shareholders, officials, members, o wners , general partners,l im i t e d partners, j o in t venturers, principals, employees, agents, managing agents, experts,attorneys, parent companies, subsidiaries, spouses, heirs, devisees, executors,adm in i s t r a t o r s , trustees, beneficiaries, receivers, guardians, insurers, reinsurers, sureties,subrogees, representatives, successors, and assigns; and all persons, corpo rations,par tner sh ips , companies or entit ies claimi ng by, through, or under any of the namedpart ies .

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I f there is more than onenamed person orpartyas RELEASOR or RELEASEE,then th eterms RELEASOR and RELEASEE inthis Agreement shall MEAN and be deemedto INCLUDE thenamed parties ind iv idua l ly singly, collectively, severally, j o in t l y and jo int lyand severally.

This Agreement does not apply to any parties not expressly named ordefined inParagraphs 2, 3, or 4.

b. Number. Inthis Agreement, the singular shall include the p lura land th ep lura l shall include th esingularas the case may be.

c. Gender. In this Agreement, the use of any one gender shallinclude all genders.

d. Captions orHeadings. In this Agreement, the captions orheadings of paragraphs and subparagraphs are inserted for convenience, reference, andident i f i ca t ion purposes only, an dshall neither c on t ro l define l i m i t noraffect anyprovisionof this Agreement.

5. Consideration.a. Payment to RELEASOR. W i t h i n 45 calendar days of the execution

ofthis Agreement by RELEASOR, RELEASEE shallpay a t o ta l ofON E THOUS ND DOLL RS1 , 0 0 0 ) by check made payable toHolcomb Law, LLLC IOLTA Tru st Account. Itshall be

the sole responsibilityof Holcomb Law, LLLC to disburse the funds, and RELEASEE shallnot be liable for any claim arising out of or related to the disbursement to any of theRELEASOR by Holcomb Law,LLLC. RELEASOR agrees that th efunds w i l l be disbursed asf o l l ows :

$36.65 toMadori Rumpungworn$121.67 toChristopher Smith$20 toDominic James$754.26 toCatherine Russell$67.42 toDe-Occupy Honolulu

RELEASOR understands and agrees that RELEASEE makes no representations orw a r r an t ie s andexpresses noopinion whatsoever as to th edisbursement ofthe settlementfunds and the amounts disbursed to any of the individuals identified above, and thatthed i s t r i bu t i on of the settlement fund amongst the individuals identified above and thede t e rm ina t i o n ofamounts t heretoaremade w i th o u t anyinvolvementof RELEASEE.

b. Return of Stored Property. RELEASEE shall coordinate w i thRELEASOR to arrange for a mutually convenient date and time to allow RELEASOR to

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retrieve any and all items stored in storage bins and held at the Halawa Corp Yard, asfo l lows : RELEASOR shall present the Stored Property Ordinance ( SPO ) notices ( Tags ]to RELEASSE's personnel at the Halawa Corp Yard on the designated r e tu rn date. Theparties understand and agree that only Tags that were posted at Thomas Square dur ingSPO enforcement actions are subject to this Agreement. To the extent that storage binsw i t h the presented Tags are still stored at the Halawa Yard, those bins w i l l be retrieved byRELEASEE'S personnel and the contents therein shall be returned to RELEASOR.RELEASOR understands and agrees that the entire contents therein shall be returned toRELEASOR. RELEASOR understands and agrees that the entire contents ineach storage binshall be received and removed f r om the Halawa Corp Yard by RELEASOR w i t h i n areasonable time on the designated re turn date. RELEASEE makes no representations orwarranties as to the condition of any of the contents in the storage bins ret urned toRELEASOR. RELEASOR shall release and hold RELEASEE harmless and shall not holdRELEASEE liable for any damaged or missing items for any of the stored property ident ifiedon any Tag presented to RELEASEE. RELEASOR shall release and hold RELEASEE harmlessand shall not hold RELEASEE liable for claims arising out of or related to any storedproper t y returned to RELEASOR that may be claimed by another individual who assertsownership of the returned property.

6. Release. For and in consideration of the payment set f o r th in Paragraph5 above, and w i t h the exception of Paragraphs 8 and 9, below, RELEASOR hereby releases,remises and forever discharges RELEASEE f rom and on account of, any and all claims,actions, causes of action, claims for relief, l iabilities demands, damages, injuries, and/orlosses that have been alleged in the Lawsuit.

7. No Admission of L iabi l i ty . RELEASOR agrees and acknowledges that neithert s Agreement, nor the fact of settlement, nor the settlement negotiations, nor thepayment and/ or receipt of the consideration shall be deemed or construed in any case,action, proceeding, or other legal event in any court, t r i buna l administrative agency orother adjudicative body as evidence of an admission, concession, presumption, or inferenceof any fault, wrongdoing, negligence, w i l l f u l misconduct, intentional misconduct, l iabi l i tyvio lat ion of the United StatesConstitution, the Constitution of the State of Hawai i, any penalstatute or ordinance, state and/or federal law, statute, ru le regulation, or fault of any k indwhatsoever, by RELEASEE, and/or any other person or en t i ty whatsoever, but shall beconstrued s t r i c t l y as a compromise of contested claims.

The parties understand, however, that the United States District Court for theDistr ict of Hawaii and/or the United States Court of Appeals for the Ni nth Circuit mayconsider the fact of settlement, settlement negotiations, payment and/or receipt ofconsideration and other terms of this Agreement to determine prevailing party status forpurposes of Paragraph 8 below.

8. Attorneys' Fees. RELEASOR and RELEASEE acknowledge and agree that Plaintiffsmay seek attorneys' fees and costs pursuant to applicable law and rules governing the seeking ofattorney's feesand costs. Pursuant to the rules and applicable law, the City may dispute boththe entitlement to and amount of fees and costs requested. The court w i l l decide the

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ent i t l ement to andamount of fees awarded, ifany. Either party retains the r i gh t to objectto and/or appeal such awards pursuanttoapplicable law.

9. Dismissal of Ind iv idua l Defendants. Consistent w i t h inconsideration of, andp r io r to the execution of this Agreement, RELEASOR shall v o lun t a r i l y dismiss individualDefendants Westley Chun, Trish Morikaw a, and Kenneth Shimizu. Accordingly, onlytheCity and County of Honolulu shall be the sole RELEASEE under this Agreement.Consistent w i t h and upon the execution of this Agreement, RELEASOR shall file thev o l u n t a r y dismissal ofthe City and County ofHonolulu w i t h thecourt.

The parties agree that this dismissal is made in good faith pursuant to thesettlement w i t h the City and this agreement is intended to discharge the alleged jo inttortfeasors as contemplated in Haw. Rev.Stat. 663-15.5. In theevent that a PetitionforGood Faith Settlement Order is deemed necessary, RELEASOR shall cooperate and assistRELEASEE in f i l ing a Petition forGood Faith Settlement Order pursuant to Act 300, 2001Legislative Session, presently codified as Haw. Rev. Stat. 663-15.5; and, in theevent thecou r t does notgrant thePetitionfor a Good Faith Settlement Order or anappeal is takenf rom anorder granting saidpet i t ion RELEASOR shall defend, indemnifyandhold harmlessRELEASEE f r om and on account of any claim, cross-claim or counterclaim, howeverdesignated, for equitable comparative contributionor par t i a l or comparative indemnityw h i c h is or may beasserted against RELEASEE by anyother j o in t tortfeasororco-obligor.

10 . Payment oftaxes, etc. Itshallbe thesoleresponsibilityof RELEASOR to payal l taxes and governmental assessments, if any, resulting f r om the payment of theaforementioned consideration. RELEASOR hereby agrees toindemnify andhold harmlessRELEASEE, f r om any claim, audit, penalty or other governmental l i ab i l i ty related to theconsideration paid under Paragraph 5, above.

11 . Understandings andAgreements. The Named Parties acknowledge, agreeand understand that:

a. NoRepresentation. Neither RELEASEE nor anyone on t he i r behalfhas made a representation of fact, opinion or promise to the RELEASOR to induce thiscompromise, and RELEASOR is notrelying upon anystatement, representation, opinionorpromise made by anyperson orparty released or t he i r agents, employees, representativesor attorneys, concerning the nature, extent or duration of the losses, loss of p ro f i t sdamages, exemplary damages, punitive damages, or the legal l i ab i l i ty therefore, orconcerning anyother t h i n g or matter; that theabove-mentioned consideration is allthatshall be provided to RELEASOR and is received as a compromise settlement in fullsatisfaction ofall aforesaid claims, demands, actions and causes ofactions, whatsoever, asset f o r th inParagraph 7aboveandw i t h theexception ofthe application for Attorneys'Feesset f o r th inParagraph 8 above.

b . Merger: I n t e rpre t a t i on . This Agreement contains the entireagreement between the Named Parties pertaining to the subject matter hereof andsupersedes all p r i o r andcontemporaneous agreements andunderstandings of theparties

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hereto. Theterms ofthis Agreement arecontractual and no t a mere recital. Allmattersatissue and allquestions concerning the interpretationof this Agreement shall be decidedand construed inaccordance w i t h Hawaii law.

c. Construction. This Agreement shall be construed w i t h o u tregard to theidentityofthe person(s) whodrafted the provisions contained herein. Eachand every provision of this Agreement shall be construed as though each party heretoparticipated equally in the drafting thereof. As a result of the foregoing, any rule ofconstruction against thedrafting party shall notbe applicable.

d Amendments. This Agreement shall no t be altered, amended,mod i f i e d orotherwise changedin anyrespect orparticular whatsoever, except by w r i t i n gdu l y executed byallofthe parties.

e. Counterparts. This Agreement may beexecuted in any numberof counterparts by the parties hereto, each of which shall be deemed an original,but all ofw h i c h together shall constitute one and thesame instrument. The parties understandandagree that this Agreement, agreements ancillarytothis Agreement, andrelated documentsto be entered into inconnection w i t h this Agreement w i l l be considered signed whenthesignature of aparty isdelivered byfacsimile transmission ordelivered byscanned image(e.g.. .pdf or t i f f file extension name) as an attachment to electronic mail (email). Suchfacsimile orscanned signature must betreatedin allrespects as having thesame effect asan original signature.

f. RELEASOR'S Understanding. In entering this Agreement,RELEASOR represent that they have relied upon theadvice of their attorney(s); thattheterms of this Agreement have been completely read andexplained to RELEASOR bytheirattorneys; and that the terms of this Agreement are fu l ly understood andvoluntarilyacceptedby RELEASOR.

g. Cooperation. The parties each agree to execute any furtherdocuments thatany of the other parties mayreasonably request inorder tocarry out theprovisions ofthis Agreement.

h Binding Effect. This Agreement shall be binding upon andinureto thebenefit of theparties andtheir representative executors, administrators, personalrepresentatives, heirs,successorsandassigns.

Representation ofA u t h o r i t y Each individual executing thisAgreement on behalf of any party expressly represents and warrants that he/she hasau t ho r i t y to do so andthereby to bind the party on behalf ofwhich he/she signs to theterms of this Agreement. An individual executing this agreement onbehalf of any partyexpressly represents andwarrants thatthepartyisbound to theagreement w i t h o u t regardto language preceding thesignature suchas Approvedas toForm and Legality.

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12 Dismissal w i t h Prejudice. RELEASOR shall dismiss w i t h prejudice allclaims and damages against RELEASEE in the subject Lawsuit upon receipt of thisAgreement f u l l y executed and clearance of the payment i d en t i f i ed in Paragraph 5.IT IS HEREBY understood and agreed t ha t the signing of this Release Indemnification andSettlement Agreement is a settlement of all claims.RELEASOR:

CATHERINERUSSELL MADORI RUMPUNGWORN

By: Catherine Russell By: Madori Rumpun gw orn

CHRISTOPHER SMITH DOMINIC JAMES

By: Christopher Smith By: Dominic James

DE-OCCUPY HONOLULU

APPROVED AS TO FORM A N D LEGALITY:

ERNEST H. NOMURADeputy Corporation CounselDepartment of the Corporation Counsel

APPROVEDAS TO FORM AND CONTENT:

BRIAN BRAZIERAttorneys forRELEASOR

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Settlement Agreement is asettlement of all claimsRELEASOR:CATHERINERUSSELL MADORI RUMPUNGWORN

By: Catherine Russell

CHRISTOPHER SMITH

By: Christopher Smith

DE-OCCUPY HONOLULU

By:RELEASEE:

CITY AND COUNTY OF HONOLULU

By:APPROVED AS TO FORM AND LEGALITY:

By: Madori Rumpungworn

DOMINICJAMES

By: Dominic James

APPROVED AS TO FORM AND CONTENT:

ERNEST H. NOMURA RICHARD L. HOLCOMBDeputy Corporation Counsel BRIAN BRAZIERDepartment ofthe Corporation Counsel Attorneys forRELEASOR



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Settlement Agreement is a settlement of a ll claims.RELEASOR:CATHERINE RUSSELL


C H R I^p H ^M ITH

DE-OCCUPY HONOLULU

By:RE L EA S E E

CITYAND COUNTY OF HONOLULU

By: ~ ~

APPROVED AS TO FORM AND LEGALITY:

ERNESTH NOMURADeputy Corporation CounselDepartment of the Corporation Counsel

MADORIRLMPUNGWORN

By: Madori Rumpungworn

DOMINICJAMES

By: Dominir James

RICHARD L,BRIAN BRAZIERAttorneys for

HOLCOMBERRELEASOR

APPROVED AS TO F 3RM AND CONTE NT:

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Settlement Agreement is asettlement ofall claims.RELEASOR:CATHERINERUSSELL MABOTU RUMPUNGWORN


CHRISTOPHER SMITH

By: Christopher Smith

DE OCCUPYHONOLULU

By:RELEASEE:

CITY AND COUNTY OF HONOLULU

By:APPROVED AS TO FORM AND LEGALITY:

By : Madori Rumpungworn

DOMINICJAV4ES

By: Dominii James

APPROVED AS TO F RMAND CONTENT:

ERNEST H. NOMURADeputy CorporationCounselDepartment of the CorporationCounsel

RICHARD L. HOLCOMBBRIAN BRAZIER IAttorneys forRELEASOR

Case 1:12-cv-00668-JMS-KSC Document 202-1 Filed 07/25/14 Page 10 of 10 PageID#: 4326

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Settlement Agreement: (de) Occupy case against Honolulu city government