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HomeMy WebLinkAboutContracts & Agreements_170A-2017 SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This Settlement Agreement and Mutual General Release Agreement ("Agreement") is made and entered into this 29th day of August, 2017, by and between the City of Redlands, including its elected officials, officers, employees, and agents (collectively, "Employer"), and George Chris Diggs, including his heirs, executors, administrators, successors, and assigns (collectively, "Employee"). Employer and Employee hereby agree that: Section I. Consideration. In consideration for Employee's execution of this Agreement, and Employee's compliance with the promises made herein, Employer agrees: A. To accept Employee's written resignation effective August 29, 2017, by written notice to Employer. No other compensation (salary or benefits) shall be paid to by Employer to Employee, except for compensation earned by Employee as of the date of this Agreement. B. As determined by Employer's City Manager pursuant to Article 16 of the Memorandum of Understanding between the City of Redlands and the Redlands association of Management Employees dated July 1, 2017 — June 30, 2018, Employer shall pay to Employee the sum of Ninety Three Thousand Two Hundred Seventy One and Ten One-Hundreths Dollars ($93,271.10) representing six (6) months' severance compensation for Employee. Such severance compensation shall be paid by Employer to Employee within seven (7) business days after the Revocation Period of this Agreement. In consideration for Employer's execution of this Agreement, and compliance with the promises made herein, Employee agrees: C. To submit a written resignation letter to Employer, effective as of August 29, 2017. Upon receipt, the resignation letter will be accepted by Employer and will be deemed irrevocable. The aforesaid letter of resignation shall be placed within Employee's official personnel file, along with a copy of this Agreement. D. That this Agreement is not confidential, and is a public record of Employer subject to public disclosure in accordance with state law. Except as otherwise provided for herein, inquiries to Employer from prospective employers seeking references or performing background investigation shall only be responded to by Employer with information of the dates of Employee's employment and his job title. E. To fully cooperate and participate in the defense of the City of Redlands in any litigation or legal proceeding existing as of the date of this Agreement. Section II. Mutual General Release of Claims. Employee knowingly and voluntarily releases and forever discharges Employer, to the full extent:permitted by law, from any and all other claims, known and unknown, asserted and un-asserted, that Employee has or may have against Employer as of the date of Employee's execution of this Agreement, including, but not limited to, any alleged violation of: • Title VII of the Civil Rights Act of 1964, as amended • The Civil Rights Act of 1991 • Sections 1981 through 1988 of Title 42 of the United States Code, as amended • The Employee Retirement Income Security Act of 1974, as amended • The Immigration Reform and Control Act, as amended • The Americans with Disabilities Act of 1990, as amended. • The Workers Adjustment and Retraining Notification Act, as amended. • The Occupational Safety and Health Act, as amended • The Sarbanes-Oxley Act of 2002 • California Family Rights Act—California Government Code Section 12945.2 et seq. • California Fair Employment and Housing Act — California Government Code Section 12900 et seq. • Statutory Provision Regarding Retaliation/Discrimination for Filing a Workers Compensation Claim—California Labor Code Section 1132a(1)to (4) • California Unruh Civil Rights Act—Civit Code Section 51 et seq. • California Parental Leave Law—California Labor Code Section 230.7 et seq. • California Family and Medical Leave—California Labor Code Section 233 • California Parental Leave for School Visits Law—California Labor Code Section 230.7 et seq. • Any other federal, state, or local civil or human rights law or any other local, state or federal law, regulation or ordinance • Any public policy, contract,tort, or common law; or • Any claim for costs, fees, or other expenses including attorneys' fees incurred in these matters. Furthermore, on behalf of himself, his relatives, heirs, estate, executors, administrators, successors and assigns, Employee does fully release and discharge Employer from any and all other actions, causes of action, claims, judgments, obligations, damages, and liabilities of whatsoever kinds and character including, but not limited to, any actions, causes of action, claims, judgments, obligations, damages, or liabilities relating to Employee"s employment with Employer, and the causes, procedures and circumstances surrounding the separation of his employment with Employer(including, but not limited to EEOC, DFEH, workers' compensation, disability retirement, short-term disability, and long-term disability claims). A, Employee agrees that this General Release shall cover any and all claims of every nature and kind whatsoever, whether known or unknown, suspected or unsuspected, past or present, which Employee may have against Employer, despite 2 the fact that California Civil Code Section 1542 may provide otherwise. Employee expressly waives any right or benefit available to him in any capacity under the provisions of such Section 1542, which provides as follows: "A general release does not extend to the claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 8, Employer knowingly and voluntarily releases and forever discharges, to the full extent permitted by law, Employee of and from any and all claims, known and unknown, asserted and un-asserted, Employer has or may have against Employee as of the Effective Date of this Agreement. Employer agrees that this General Release shall cover all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past or present, which Employer may have against Employee, despite the fact that California Civil Code Section 1542 may provide otherwise. Employer expressly waives any right or benefit available to it in any capacity under the provisions of such Section 1542, which provides as follows: "A general release does not extend to the claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor. Section III. Age Discrimination Claims. A. Employee understands and agrees that, by entering into this Agreement, (i) he is waiving any rights or claims he might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act; (ii) he has been advised to consult with an attorney before signing this Agreement; and (iii) he has been offered the opportunity to evaluate the terms of this Agreement for not less that twenty-one (21) days prior to Employer's presentation of this Agreement to Employee (which is deemed the date of this Agreement), even though he may elect to sign this Agreement before such twenty-one (21) day period expires. B, Employee may revoke this Agreement by written notice delivered to Employer's legal counsel within a period oft nt -one (21) days after the Effective Date of this Agreement (the "Revocation Period"), and it shall become enforceable only upon the expiration of the Revocation Period, without prior revocation by Employee, In the event that Employee does not revoke, as provided herein, this Agreement shall be effective on the first day following expiration of the Revocation Period. 3 Section IV. Affirmations. Employee affirms that he has not filed, caused to be filed, or presently is a party to any claim, complaint, or action against Employer in any forum or form. Employee further affirms that he has been paid and/or has received all leave (paid or unpaid), compensation, wages, bonuses, commissions, and/or benefits to which he may be entitled and that no other leave (paid or unpaid), compensation, wages, bonuses, commissions and/or benefits are due to him, except as provided in this Agreement. Employee furthermore affirms that he has no known work-related injuries or occupational diseases and has been provided and/or has not been denied any leave requested under the Family and Medical Leave Act. Employee understands that Employer has relied upon Employee"s irepresentations herein. Section V. Waiver of Right to Employment, Reinstatement as Independent Contractor, or Future Business Relationship with Emptoyer. Employee acknowledges that because of circumstances unique to him including, but not limited to, irreconcilable differences with Employer, he is not qualified to hold any position with Employer now or in the future and, therefore, shall not apply in the future for employment, an independent contractor position, or position of any kind with Employer, Employee further agrees that Employer shall not be liable for any damages now or in the future because of Employer's refusal to retain, hire or employ Emptoyee for any reason whatsoever. Section V1. Non-Disparagement, Employee agrees not to defame, disparage or demean Employer iiin any manner whatsoever. Employer also agrees not to defame, disparage or demean Employee for anything Employee did or may have done in the course and scope of his relationship with Employer. Section V11. Governing Law and Interpretation. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to its conflict of laws; except that parol evidence shall not be considered to alter, vary, modify or amend the terms of this Agreement, In the event Empilloyee or Employer breaches any provision of this Agreement, Employee and Employer affirm that either may institute an action to specifically enforce any term or terms of this Agreement. Should any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become severable and null and void, teaving the remainder of this Agreement in full force and effect., Section Vill, Non-admission of Wrongdoing. 4 Employer and Employee agree that neither this Agreement nor the furnishing of the consideration for this Agreement shall be deemed or construed at any time for any purpose as any admission by Employer or Employee of any liability or unlawful conduct of any kind. Section I . Amendment. This Agreement may not be modified, altered or changed except on express written consent of Employer and Employee. Section X. Miscellaneous. A. Employee and Employer represent that they are currently unaware of any claim, right, demand, debt, action, obligation, liability or cause of action that they may have against each other which has not been released inthis Agreement. B. Employee and Employer represent that each has had the opportunity to consult with an attorney of its or his own choosing in the negotiations leading tot preparation of this Agreement, that they have read this Agreement, that they are fully aware of its contents and legal effect, and that they have freely and voluntarily entered into it without coercion, intimidation ort rea f retaliation. C. In the event it shall be necessary for Employer or Employee to institute any action to enforce or interpret any of the terms and conditions or provisions of this Agreement, or for any breach hereof, the prevailing party in such action, in addition to any other relief, shall be entitled to costs and reasonable attorneys' fees, including fees for use of in-house counsel by Employer. Section X1. Entire Agreement. This Agreement contains the entire agreement between Employer and Employee with respect to its subject matter, and fully supersedes any prior obligations of Employer to Employee with respect to the same. Employer and Employee acknowledge and agree that they have not relied on any representations, promises, oragreements of any kind made to the in connection with their decision to enter into this Agreement, except for those set forth in this Agreement. Section XII. Summa!y Enforcement. Any provisions of Evidence Code Sections 1115-1128 notwithstanding, this Agreement may be enforced by either Employer or Employee by a motion under Code of Civil Procedure Section 664.6 or by any other procedure permitted by law. HAVING ELECTED TO EXECUTE THIS SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE, TO FULFILL EPOROMISES AND TO RECEIVE THE PAYMENTS DESCRIBED HEREIN, EMPLOYEE 5 FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ANY AND ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST EMPLOYER. IN WITNESS WHEREOF, Employer and Employee knowingly and voluntarily executed this Settlement Agreement and Mutual General Release as of the dates set forth below: Date: August 2 , 2017 George Chris Diggs CITY REDIL IS Date: August 29,,2017 i. Enrique Martin z, City Mana er