ross and city settlement agreement and general release of claims 05-20-15
TRANSCRIPT
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SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS
1 PARTIES
The parties to this Settlement Agreement and General Release of Claims
( AGREEMENT ) are STU ROSS ( ROSS ) and the City of CARMEL-BY-THE-SEA, a municipal
corporation ( CITY ).
All further references to the CITY
in
this AGREEMENT are mutually understood and
intended, where appropriate, to include the CITY, each o its departments, as well as each of its
past, present or future officers, directors, employees, officials, agents, representatives,
attorneys, assignees, successors, benefit plans, trusts, and fiduciaries.
ROSS and the CITY are collectively referred to as the PARTIES.
2 RECITALS
a. ROSS was employed by the CITY as the Superintendent
o
Public Works.
b ROSS's position is included in the bargaining unit represented by the Carmel
Management Employees Union ( ASSOCIATION ) and is covered by a
memorandum o understanding between the CITY and the ASSOCIATION.
c. The CITY has received the results o an investigation report that the CITY
believes warrants termination
o
ROSS's employment with the CITY. The
investigation report also indicated that, over the past approximately eighteen (18)
months, ROSS has recorded hours on his CITY timesheet that he did not actually
work. ROSS received payment for those recorded hours. The total amount of
payment ROSS received for hours that he did not actually work is $4,860.92.
d
ROSS disputes that disciplinary action is warranted and, should the CITY move
forward with a termination, would invoke his right to appeal the termination. The
CITY is prepared to oppose an appeal and to advocate to uphold the termination.
e. As o the EFFECTIVE DATE o this AGREEMENT, neither ROSS nor the CITY
has been advised by a medical practitioner, or is otherwise reasonably aware,
that ROSS suffers from any medical impairment or illness arising out
o
,
aggravated by, or related to ROSS's employment with the CITY.
f The PARTIES desire to resolve all disputes o every kind and nature between
them arising out o
or
related to ROSS's employment with the CITY, (including,
but not limited to, ROSS'S termination) amicably, fully, and finally, under the
terms and conditions specified
in
this AGREEMENT, for good and sufficient
reasons and consideration, including but not limited to, avoiding expending or
incurring additional time or money, avoiding the uncertainties and cost o an
appeal hearing, and avoiding any costs or uncertainties of administrative
proceedings or litigation.
g. The PARTIES agree that this AGREEMENT resolves a disputed matter and is
not an admission o liability, fault, or wrongdoing on the part o the PARTIES.
The PARTIES further agree that this AGREEMENT pertains to the settlement
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and release o matters regarding ROSS only and does not set a precedent for
matters
o
any nature regarding CITY employees other than ROSS.
h The PARTIES agree that th is AGREEMENT shall take effect seven days following
the PARTIES' full and complete execution and ratification of this Agreement, in
accordance with ROSS's rights under the Older Workers Benefit Protection Act, as
set forth further
in
section 3.e. of this AGREEMENT.
3 CONSIDERATION
a
In exchange for the consideration and releases set forth herein, within a
reasonable period following the EFFECTIVE DATE o this AGREEMENT, the
CITY and ROSS agree to the following:
i. The CITY shall not move forward with any disciplinary action against
ROSS.
ii. ROSS shall submit a letter o retirement, identifying May 20, 2015 as his
last day
o
employment with the CITY.
ii The CITY shall deduct $4,860.92, the amount ROSS has been paid for
hours he did not actually work, from ROSS's final payment from the CITY.
b Release of Claims y ROSS
In exchange for the agreements and consideration set forth in Section 3 of this
AGREEMENT, ROSS, for himself, his heirs, representatives, successors, and
assigns, hereby assigns, releases, acquits, and forever discharges the CITY, its
past and present employees, agents, officers, representatives, insurers, and
attorneys, predecessors and successors from any and all claims , charges,
complaints, demands, liabilities, obligations, promises, benefits, agreements,
controversies , costs, losses, debts, expenses, damages, actions, causes of
action, suits, rights. and demands o any nature whatsoever, known or unknown,
suspected or unsuspected ( ROSS's CLAIMS ), which ROSS now has
or
may
acquire
in
the future, which relate to or arise out of any act, omission,
occurrence, condition, event, transaction, or thing which was done, omitted to be
done, occurred, or was in effect at any time up to and including the effective date
of this AGREEMENT, without regard to whether ROSS's CLAIMS arise under
federal, state,
or
local constitutions, statutes, rules, regulations,
or
common law.
ROSS expressly acknowledges that ROSS's CLAIMS forever barred by this
AGREEMENT specifically include, but are not limited
to
claims set forth or
related to the circumstances and causes of action related to ROSS's
TERMINATION; claims based upon any alleged breach of employment contract;
any demand for wages, overtime, back pay, or benefits; any alleged breach o
any duty arising out of contract or tort; any claims based on the Fair Labor
Standards Act; any alleged wrongful termination in violation of public policy; any
alleged breach of express or implied contract for continued employment; any
alleged employment discrimination or unlawful discriminatory act; any claim o
bodily or personal injury; or any other claim or cause o action including, but not
limited to, any and all claims whether arising under any federal, state,
or
local law
prohibiting wrongful termination, or employment discrimination based upon age,
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which to review and consider this AGREEMENT or to engage in further
discussions with legal counsel;
vii. ROSS has seven days following the PARTIES' full and complete
execution and ratification of this Agreement to revoke this Agreement in
writing (the date of expiration of this seven-day period shall be referred to
herein as the EFFECTIVE DATE ); and
viii. This
Agreement shall not be effective until
the
EFFECTIVE DATE.
d. Special
Acknowledgement
of Release of
Unknown
Claims by ROSS
In
addition to the release provisions of Sections 3.c. and 3.d. of th
is
AGREEMENT,
ROSS understands that Section 1542 of the California Civil Code reads as follows:
General Release Claims Extinguished
A general release does not extend to claims which the
creditor does not know or suspect
to
exist
in
his favor at
the time of executing the release, which if known by him
must have materially affected him settlement with the
debtor.
ROSS expressly acknowledges that he is aware of the existence of the existence of
Section 1542 of the California Civil Code has read and understood the above provision
of that Section, and understands its meaning and effect. ROSS hereby waives the
protection
of Section 1542 of the
California Civil Code
to the fullest extent that he may
do so lawfully.
e. Waiver of additional claims by ROSS
ROSS hereby waives any provisions of state or federal law that might require a more
detailed specification of the claims being released pursuant to the other provisions of
Section 3 of this AGREEMENT.
4. REPRESENTATIONS AND WARRANTIES
a.
Advice of
Counsel: Each of the PARTIES has been provided the
opportunity to obtain independent legal advice from an attorney
with respect to the advisability of executing this AGREEMENT,
and wi
th
respect to the meaning of Section 1542 of the Civil Code.
b. No Fraud in
Inducement:
None
of
the PARTIES (nor any officer,
agent, employee, representative, or attorney of or for any of the
PARTIES) has made any statement or representation or failed to
make any statement or representation to any other party regarding
any fact relied upon in entering into this AGREEMENT, and none
of the PARTIES relies upon any statement, representation,
omission, or promise of any other of the PARTIES (or of any
officer, agent, employee, representative, or attorney of or for any
of the PARTIES) in executing this AGREEMENT, except as
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expressly stated in this AGREEMENT. Each term of this
AGREEMENT is contractual and not merely a recital.
c Comprehension:
Each
of
the PARTIES has read this
AGREEMENT and understands the contents hereof.
d. Mistake Waived:
In
entering into this AGREEMENT each
of
the
PARTIES assumes the risk
of
any misrepresentation
concealment or mistake. If any of the PARTIES should
subsequently discover that any fact relied upon it
in
entering into
this AGREEMENT was untrue or that any fact was concealed
from it or that its understanding
of
the facts or law was incorrect
such party shall not be entitled to any relief in connection
therewith including any alleged right or claim to set aside rescind
or modify this AGREEMENT. This AGREEMENT is intended to
be final and binding between the PARTIES regardless
of
any
claims
of
misrepresentation promise made without the intent to
perform
concealment of fact mistake of fact or law or any other
circumstances whatsoever.
e. Later Discovery:
Each
of
the PARTIES
is
aware that it may
hereafter discover claims or facts in addition to or different from
those it now knows or believes to be true with respect to the
matters related herein. Nevertheless it is the intention
of
the
PARTIES to fully finally and forever settle and release all such
matters and all claims relative thereto that do now exist may
exist
or
have previously existed between ROSS and the CITY.
In
furtherance of such intention the releases given by ROSS here
shall be and remain in effect as full and complete releases
of
such
matters notwithstanding the discovery or existence of any
additional or different claims or facts relative thereto.
f.
Future Cooperation:
The PARTIES will execute all such further
additional documents as shall be reasonable convenient
necessary or desirable to carry out the provisions of this
AGREEMENT.
g. ROSS s Current Medical Condition: ROSS represents that he
has reported to the CITY all work related illnesses and
in
juries
sustained during employment with the CITY of which he is
reasonably aware as
of
the EFFECTIVE DATE
of
this
AGREEMENT.
5 MISCELLANEOUS
a Governing Law: This AGREEMENT has been executed and
delivered within the State of California and the rights and
obligations of the PARTIES shall be construed and enforced in
accordance and governed by the laws
of
the State
of
California.
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b Full Integration: This AGREEMENT is the entire agreement
between the PARTIES with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral and written
agreements and discussions. This AGREEMENT may be
amended only by a further agreement
in
writing, signed by the
PARTIES.
c. Joint Drafting: Each o the PARTIES has cooperated in the
drafting and preparation o this AGREEMENT. Hence, the
AGREEMENT shall be construed within in its fair meaning and not
against any
o
the PARTIES.
d. Attorneys Fees: n the event of litigation asserting a breach o
this AGREEMENT, the prevailing party or parties shall be entitled
to costs, including reasonable attorneys' fees.
e. Severability: n the
v nt
that any term, covenant, condition,
provision, or agreement contained in this AGREEMENT is held to
be
invalid or void by any court
o
competent jurisdiction , the
invalidity o any such term, condition, covenant, provision, or
agreement shall
in
no way affect any other term, covenant ,
condition, provision,
or
agreement, and the remainder o the
AGREEMENT shall still be in full force and effect.
f. Titles: The titles included in this AGREEMENT are for reference
only and are not part of the terms o this AGREEMENT, nor do
they in any way modify the terms of this AGREEMENT.
g. Counterparts: This AGREEMENT may be executed in
counterparts, and when each o the PARTIES has signed and
delivered at least one such counterpart, each counterpart sha
ll
be
deemed an original, and, when taken together with other signed
counterparts , shall constitute one AGREEMENT, which shall be
binding and effective as to all
o
the PARTIES.
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h. Notice:
Any and all notices given to any
of
the PARTIES under
this AGREEMENT shall be made by certified or registered United
States mail , or personal service, at the noticing party's discretion,
and addressed as set forth below. Notices
shall
be
deemed, for
all purposes , to have been given
on
the date of personal service
or three calendar days following deposit
of
the same in the United
States mail.
As to ROSS:
As to the CITY:
Doug Schmitz
Don Freeman, City Attorney Samantha W. Zutler
City Administrator
PO Box 805 Burke, Williams & Sorensen, LLP
City Hall
Carmel y-the-Sea, CA 93921 1 1 Howard Street
Carmel by-the-Sea, CA 93921 Suite 400
San Francisco, CA 94105
WHEREFORE the PARTIES have read all
of
the foregoing understand the same and agree
to all
of
the provisions
of
this AGREEMENT.
DATED:
DATED:
On e h ~ o s s and the Association
Approved
s to
Form:
SF 4824-3148-6244
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STU ROSS
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