HomeMy WebLinkAbout001269 Original Contract City of Port Angeles
Record #001269
MUTUAL NON-DISCLOSURE AND RULE 408 AGREEMENT BETWEEN THE UNITED
STATES OF AMERICA,THE CITY OF PORT ANGELES AND THE LOWER ELWHA
TRIBE
L PARTIES
The Parties to this Agreement dated October 21,2016,are the United States of America,
acting through the National Park Service ("NPS"), the Lower Swha Klallam Tribe ("Tribe");
and the City of Port Angeles,Washington("City"".
11.RECITALS
A. The Parties are signatories to a Memorandum of Understanding,dated August 6,
2004,C'MOUl for the Drsign,Permitting, Construction,Operation,and Maintenance of Water
Treatment or Related Facilities Pursuant to the Elwha River Ecosystem and Fisheries Restoration
Act
B. The City, Tribe, and NPS have been in settlement discussions to resolve
disagreements about actions arising out of and/or relating to dam removal pursuant to the Elwha
River Ecosystem and Fisheries Restoration Act of IM,including but not limited to the transfer
of ownership and/"operation of the Elwha Water Facilities CEWF"). The City has filed an
administrative claim under the Federal Tort Claims Act, but the Parties desire to continue
settlement negotiations.
C. So that such discussions may continue, the Parties seek to provide expanded
confidentiality protection to each other,beyond that afforded by Fed.R.Evid.408 alone.
D. The City's administrative claim under the Federal Tort Claim Act is disputed by
the United States within the meaning of Fed.R.Evid.408,both as to validity and amount but it
has not taken any final action on the claim.
I'll.AGREEMENT
The Parties covenant and agree as follows:
1. Oral cotrununications and notes of oral communications prepared by the Parties during
their on-going settlement negotiations shall be considered confidential and for settlement
purposes only and shall be subject to the restrictions imposed in this Agreement. The
confidentiality of oral communications doll be retroactive to June 20,2016.
2. Unless otherwise agreed in writing by the parties, no party to this Agreement shall use
any oral communication made by any other party, including their officers, employees,
agents, representatives, contractors,subcontnictors or consultants, during their on-going
settlement negotiations, including notes of such oral communications: (i) in any
1271137.0Wft7l"39.1
adversarial proceeding or as the basis for any adversarial proceeding in any forum;(ii)in
any manner or for any purpose other than in connection with the settlement negotiations
between them;(iii)for purposes of impeachment;or(iv)as the basis for any proceedings
before any court. The Parties further agree that the existence of settlement meetings will
not be admissible as evidence or used for any other purpose including,without limitation,
filings with any court.
3. The Parties to this Agreement warrant to the other Parties to this Agreement that they we
vested with full authority to enter into this Agreement and this Agreement shall be fully
binding on both themselves, their principals, contractors, subcontractors, agents
employees and consultants. No Party to this Agreement shall challenge either its validity
or effectiveness.
4. This Agreement is to be governed by federal law, including the Federal Rules of Civil
Procedure and the Federal Rules of Evidence, and may be enforced in an independent
civil action under applicable low.
5. This is the entire Agreement of the Parties and may be modified only by a written
amendment signed by all of the Parties.
NATIONAL PARK SERVICE
M.Sarah Creachbaum,Superintendent
Olympic National Park
LOWER ELWH M TRIBE
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Lower Elwha Klallam Tribe
CITY OF PORT ANGELES
Dan McKeen,City Manager
City of Port Angeles