Settlement Agreement

SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (the ?Agreemen_t_") is entered into on this (176(0? 4,3: day of Jaye/3914 (the by and between .loel Chandler. an individual (the {gintiff? and the Lakeland Police Department and Larry Giddens, in his capacity as Acting Police Chief of the Lakeland Police Department (collectively. the ?Del?endants") and anyone collectively claiming by, through or for them, including, but not limited to. successors and assigns. in this Agreement, Plaintiff and Defendants may be referred to individually each as a "Party" and shall be referred to collectively as the WHEREAS, Plaintiff ?led a lawsuit against the Defendants on or about March 19, 2010 in the Circuit Court in and for Polk County (the currently entitled Chandler v. \Votnaelg. Case No. 2010CA-002780 (the ?Litigatio_t_1_") that, among other things, challenged the imposition of a standard fee of $23.50 upon requestors of non? exempt public records relating to "calls for service," also referred to as ?calls for service reports? (hereinafter referred to WHEREAS. in order to avoid the cost of litigation and in an effort to reach an amicable resolution of the claims, differences. disputes, and potential causes of action between the Parties hereto. the Parties have reached a compromise and settlement of their claims as set forth in this Agreement; WHEREAS. plaintiffs counsel has incurred more than $231000 in attorney fees and $4,200 in costs and recognizes that to continue to litigate this matter will result in the continued expenditure of additional fees and costs: WHEREAS, Defendant?s counsel has incurred more than $55,000 in attorney?s fees and costs, and recognizes that to continue this litigation will reSult in further expense; NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and other good and valuable consideration, the receipt and suf?ciency of which are hereby acknowledged, the Parties agree to the following terms and conditions: 1. RLitaLs. The above recitals, as well as the covenants, representations and warranties set forth below, are incorporated herein and made a part hereof. Each of the Parties acknowledges that the recitals are true and correct to the best of the respective Party?s knowledge, information and belief, and that each is a material inducement to enter into this Agreement. 2. Representations by Defendants. Defendants represent and warrant that the individuals signing below have the authority to enter into this Agreement on behalf of the Defendants and that this Agreement in all respects will be binding upon Defendants, its agents, employees, successors, and assigns. 3. Defendants? Obligatiggs. Except as otherwise provided in this Agreement, Defendants shall: a. immediately discontinue from enforcing and immediately change any current policy that requires persons who request CFS Records to pay a standard fee of $23.50 or any other standard fee other than the copying andfor other charges that are speci?cally authorized by the Florida Public Records Act, Florida Statutes, Section 119.01, et seq. (2014) (the ?Public Records Act?); b. refrain from requiring persons who request CFS Records to pay a standard fee of $23.50 or any standard fee other than the copying and/or other charges that are speci?cally authorized by the Public Records Act; e. make arrangements for the First Amendment Foundation (336 East College Avenue, Suite 10!, Tallahassee, Florida 32301-1554) to conduct Public Records Act compliance training of any Lakeland Police Department employees whose duties include responding to, routing, handling and/or ful?lling requests for public records (the ?Public Records Act Training?). The Public Records Act Training shall be conducted no later than December 31, 2014; d. submit to and participate in binding arbitration (the ?fig Arbitration?) in accordance with the procedures set forth below for the sole purpose of determining a reasonable attomey?s fee for Plaintiff?s counsel in this Litigation and shall abide by any resulting award (the ?Fee Award?) of the Arbitrator (as de?ned below). The Fee Arbitration shall be scheduled within ninety (90) days of the Effective Date; e. within ?fteen (15) days after the con?rmation of scheduling of the Public Records Act Training or within ?fteen (IS) days after the confirmation of scheduling of the Fee Arbitration, whichever occurs later, Defendants shall ?le a Notice of Dismissal of any pending Counterclaim with prejudice. f. The Parties shall share equally the cost of the Arbitrator. 4. Fee Arbitration Procedure: Unless otherwise mutually agreed by the Parties in writing, the following procedures shall apply to the Fee Arbitration: a. Arbitrator Selection: Within thirty (30) days of the Effective Date, counsel for Defendants shall furnish counsel for Plaintiff a list of no fewer than three (3) available arbitrators. Within ten (10) days thereafter, counsel for Plaintiff will select one (1) arbitrator from the three (3) names furnished by Defendants to be the single arbitrator (the ?Arbitrator?) for the Fee Arbitration. b. Scheduling: The Parties shall in good faith coordinate a mutually agreeable date for the Fee Arbitration to take place within sixty (60) days of the Effective Date. 0. ye_nu_e: The Fee Arbitration shall take place at a venue mutually agreed to by the Parties. d. Materials: No less than seven (7) days prior to the date of the Fee Arbitration, the counsel for the Parties shall submit simultaneously to the Arbitrator their respective fee schedules, case summaries, and curricula vitae for the relevant attorneys and contemporaneously serve copies of such materials on opposing counsel. e. m: The Fee Arbitration shall be scheduled for one (1) hour and each Party shall have a total of thirty (30) minutes for argument, including any rebuttal argument. No live testimony will be permitted. f. Maximum Award: The Parties hereby agree that if there is any monetary Award by the Arbitrator, it shall be subject to a maximum of ninety-?ve thousand dollars (the Egg?). The Parties shall provide the fully executed copy of this Settlement Agreement to the Arbitrator. g. Binding Result: The Parties agree that the Award must be made by the Arbitrator within ten (10) days after the conclusion of the Fee Arbitration in accordance with Section 682.090), Florida Statutes (2014); (ii) the Arbitrator shall advise counsel for the parties of the award by conference call; the Arbitrator?s decision shall be ?nal and binding in all respects (up to the amount of the Cap) and without appeal and (iv) upon rendition by the Arbitrator, the Award shall be entered or jointly submitted for entry as an Order and Judgment of the Court and fully enforceable as such. h. m: To the extent permitted by law, the Parties hereby expressly waive the following provisions of the Revised Florida Arbitration Code, Section 682.01, $331., Florida Statutes (2014): the requirement for ?ling a petition for judicial relief (Fla. Stat. 682.015 (2014)), (ii) the availability of provisional remedies (Fla. Stat. 682.031 (2014)), the notice requirements for initiation of arbitration (Fla. Stat. 682.032 (2014)), (iv) the right to present and cross-examine witnesses and to present evidence (Fla. Stat. 682.06 (2014)) other than deposition and hearing transcripts or evidentiary items that were ?led with the Court on or before February 27, 2013; and the Arbitrator's power to issue subpoenas or permit depositions or other discovery (Fla. Stat. 682.08 (2014)). 5. Joint Obligations. Within ?fteen (15) days after the receipt of the funds awarded by the Arbitrator, the Parties shall file a Joint Stipulation of Dismissal with prejudice. 6. Plaintiff?s Release of Defendants. Plaintiff hereby remises, waives, releases, and forever discharges Defendants, including their attorneys, agents and employees, from and against all claims, actions, and causes of action or defenses of any kind or nature, arising from or related in any way whatsoever to the claims or allegations contained in the Litigation, whether direct, indirect, or consequential, foreseen. or unforeseen, whether or not well-founded in fact or in law, whether in law or equity that were raised at any time in the Litigation or otherwise, or that existed, or may have existed, as of the date of this Agreement; provided, however, that this Release shall not apply to claims relating to the duties and obligations set forth in Paragraphs 2 and 3 of this Agreement. 7. Defendants? Release of Plaintiff. Defendants hereby remise, waive, release, and forever discharge Plaintiff, including his attorneys, agents, employees, heirs and assigns, from and against all claims, actions, and causes of action or defenses of any kind or nature, arising from or related in any way whatsoever to the claims or allegations by contained in the Litigation, whether direct, indirect, or consequential, foreseen or unforeseen, whether or not well-founded in fact or in law, whether in law or equity that were raised at any time in the Litigation or otherwise, or that existed, or may have existed, as of the date of this Agreement; provided, however, that this Release shall not apply to claims relating to the duties and obligations set forth in Paragraph 5 of this Agreement. 8. No Admission. Nothing contained herein shall be deemed a waiver or admission of any kind. Neither Party admits any liability to the other Party by the negotiation and execution of this Agreement or by the performance of the obligations contained herein. It is understood that Defendants expressly deny liability and enter into this Agreement solely as a compromise and to avoid and terminate all disputes and the Litigation. 9. Miscellaneous. a. Enforcement. In any action to enforce any right arising out of, created or otherwise conferred by this Agreement, including the enforcement of any Award or other order entered by the Arbitrator, the non-prevailing Party shall reimburse the prevailing Party for any and all reasonable costs and expenses (including reasonable attorney?s fees and disbursements) incurred by the prevailing Party in connection with such action. b. Successors and Assigns. The terms and conditions of this Agreement will inure to the benefit of, and be binding upon, the Parties and their respective employees, agents, successors, assigns, and heirs. Except as expressly provided herein, nothing in this Agreement, express or implied, is intended to confer any rights, remedies, obligations, or liabilities upon any person or entity other than the Parties and their reSpective employees, agents, successors, assigns, and heirs. c. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. d. Severability. If any provision of this Agreement is held to be unenforceable under applicable law, such provision will be enforced to the maximum extent possible and the remaining provisions of the Agreement will be interpreted as if such provision or portion thereof were so excluded and will be enforceable in accordance with its terms. e. Entire Agreement. No waiver of any of the provisions of this Agreement in any one instance shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. f. Notices. All notices, requests, demands or other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of sending. All notices, requests, demands or other communications under this Agreement shall be served personally by hand delivery or delivered by overnight courier and properly addressed as follows: If to Plaintiff: Gregg D. Thomas, Esq. Thomas LoCicero PL 601 South Boulevard Tampa, Florida 33606 If to Defendants: Timothy McCausland, Esq. City Attorney City of Lakeland 228 S. Massachusetts Ave. Lakeland, FL 33801 g. MM. The Parties acknowledge that each has been advised by counsel during the course of negotiation of this Agreement and, therefore, this Agreement and any other documents related hereto shall be interpreted without regard to any presumption or rule requiring construction against the Party causing this Agreement to be drafted. h. mittemart Execution. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as ofthe date set forth above. LER I 133?: - Prilcgla?j/QZ/ Date 4 LARRY as Interim Chiefot' Police for the Lakeland Police Department I By Print Name: Date LAKELA POLICE By: PrintName: Ttmofhij. Date {Din/H: Title: 0