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HomeMy WebLinkAboutContracts & Agreements_88-2000_CCv0001.pdf SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into by and between DALE L. MARTIN ("Retiree"), the City of Redlands ("Redlands"), and the California Public Employees' Retirement System, a unit of the State of California ("CalPERS"). RECITALS A. Retiree is a former employee of Redlands and is a member of CalPERS. B. Retiree is currently receiving a retirement allowance from CalPERS. C. In or about 1993, CalPERS excluded certain items of Retiree's final compensation ("Additional Compensation") from its calculation of Retiree's retirement allowance. CalPERS based its decision on the applicable provisions of the Public Employees' Retirement Law. D. Retiree, along with other retirees, appealed from this decision of CalPERS ("Administrative Appeal"). The Administrative Appeal is entitled, In the matter of the Appeal of the Calculation of Benefits Pursuant to the Employer's Report of Final Compensation by ROBERT E BRICKLEY, RANDALL K. DARKENS, JEAN A. FREEMAN, BONNIE J. HALES, DAVE L. MARTIN, MARSHALL MEADE, RAYMOND B. MILLS, JAMES H. SMITH, LEONA TERRY, OLIVIA M. VILLA, and JACOB MANTEL, Respondents, and CITY OF REDLANDS, Respondent, Office of Administrative Hearings number L-9604113. E. On May 29, 1997, the Office of Administrative Hearings, Administrative Law Judge ("AU") Judith Wharton presiding, issued its proposed decision ("Proposed Decision") on the Administrative Appeal. In July, 1996, Retiree withdrew his administrative appeal in this matter pursuant to a written agreement with CalPERS and Redlands providing that he would receive the same result as the other appellants if the appeal was ultimately decided in their favor. On September 24, 1998, the Office of Administrative Hearings, Judge Wharton presiding, issued its Ruling and Order on Respondents' Motion to Contest Jurisdiction ("Administrative Order") in the Administrative Appeal proceedings. On December 16, 1998, the CalPERS Board of Administration adopted the Proposed Decision as its own ("The Board Decision"). F Retiree, Redlands, and CalPERS (individually "Party" and collectively "Parties") enter into this Agreement to avoid the inconvenience and the expense of litigation over the facts and subject matter of this Agreement and the Administrative Appeal. G. The annual average of Retiree's final compensation as originally reported by Redlands was $60,939.40. Prior to the Proposed Decision, the annual average of Retiree's final compensation as approved by CalPERS was $61,358.89. As Settlement Agreement and Release Page 2 of 7 adjusted by the Proposed Decision, the annual average of Retiree's final compensation would have been $64,659.96. The annual average of Retiree's final compensation as adjusted by the terms of this Agreement is $63,202.97. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS, OBLIGATIONS, AND AGREEMENTS SET FORTH BELOW, IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: Section 1. RETIREMENT ALLOWANCE. Retiree shall receive a retirement allowance based upon a final annual average compensation of $63,202.97 that is equal to the sum of the following: (1) the amount of final compensation that had been approved by CalPERS prior to the Proposed Decision and (2) seventy percent (70%) of the additional amount of final compensation approved in the Proposed Decision. Beginning with his September 1, 2000 warrant, CaIPERS will pay Retiree a monthly retirement allowance of $4,470.30, consisting of a base allowance of $3,740.52 which reflects the adjustments described in this section ("Adjusted Retirement Allowance") and a cost of living adjustment (COLA) of $729.78. This Adjusted Retirement Allowance reflects Retiree's choice of settlement options and shall be modified by all future cost of living adjustments applicable under law. The Adjusted Retirement Allowance shall be paid from the appropriate employer accounts and shall be subject to all applicable laws. Section 2. PAYMENT OF CASH TO RETIREE. From the appropriate employer accounts of Redlands, CaIPERS shall pay to Retiree in cash the sum of $14,337.01 within twenty one (21) days of the Effective Date of this Agreement. The Parties acknowledge and agree that this payment ("Cash Payment") represents the difference between the amount that Retiree actually received from CaIPERS in monthly retirement allowance and the amount of Retiree's Adjusted Retirement Allowance, from the date of retirement through July 31, 2000, with three and one-half (3 1/2) percent per annum simple interest. Section 3. REDLANDS EMPLOYER CONTRIBUTION RATES. For the purpose of setting the employer contribution rates of Redlands, the Adjusted Retirement Allowance and the Cash Payment shall be considered a part of the "experience" of Redlands within the meaning of Government Code section 20815. CalPERS acknowledges and agrees that it will not charge or collect a lump sum from Redlands to fund any actuarial loss attributable to payment of the Retirement Allowance Settlement Agreement and Release Page 3 of 7 or the Cash Payment and that any such loss shall be amortized in accordance with the applicable Board of Administration actuarial policies. Section 4. WAIVER, DISCHARGE, AND RELEASE. Retiree, CalPERS and Redlands generally and specifically waive, discharge, and release each other and each of their respective past, present, and future officers, directors, boardmembers, employees, agents, assigns, successors, personal representatives, attorneys, administrators, receivers, and trustees from any and all rights, claims, demands, liability, causes of action, actions, suits, proceedings, obligations, attorneys' fees, and expenses, of whatever kind and nature, whether known or unknown, or contingent or accrued, which relate to, or arise or could arise under or out of, the Administrative Appeal, the Proposed Decision, the Board Decision, the Administrative Order, and/or any Memorandum of Understanding entered into by Redlands and any employee organization representing employees of Redlands. Retiree, CalPERS and Redlands agree that the Proposed Decision, the Board Decision and the Administrative Order are of no force or effect whatsoever. Section 5. - WAIVER OF CIVIL CODE SECTION 1542. Section 1542 of the Civil Code provides as follows: 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 his settlement with the debtor. Retiree, CalPERS, and Redlands, and each of them, fully understand and expressly waive any and all of their respective rights under, and the benefits of, section 1542 of the Civil Code as to the releases given in this Agreement. Section 6. DISMISSAL OF PROCEEDINGS WITH PREJUDICE. Retiree shall dismiss with prejudice any and all lawsuits, actions, claims, proceedings, and appeals including without limitation the Administrative Appeal that he may have filed against CalPERS, Redlands, and/or their respective officers, directors, boardmembers, employees, agents, assigns, successors, personal representatives, attorneys, administrators, receivers, and trustees, both past and present. Redlands shall dismiss with prejudice any and all lawsuits, actions, claims, proceedings, and appeals including without limitation the Administrative Appeal that it may have filed against CalPERS and/or its officers, directors, boardmembers, employees, agents, assigns, successors, personal representatives, attorneys, administrators, receivers, and trustees, both past and present. Settlement Agreement and Release Page 4 of 7 Section 7. SUFFICIENCY OF CONSIDERATION. The sufficiency of the consideration for the mutual covenants, obligations, and agreements contained in this Agreement is acknowledged by the Parties. Section 8. NO ADMISSION OF LIABILITY. This Agreement is made for the purpose of avoiding the inconvenience and expense of litigation, including the Administrative Appeal, and the making of this Agreement shall not be deemed an admission of any liability or wrongdoing on the part of any Party to the Agreement. Each Party shall bear his/her/its own attorney's fees, costs and expenses incurred in connection with the Agreement, the Administrative Appeal, and any other related proceedings. Section 9. INADMISSIBLE AS EVIDENCE. Except for proceedings to enforce this Agreement, neither the terms of the Agreement nor its existence shall be admissible as evidence in any litigation between the Parties. Section 10. SUCCESSORS AND ASSIGNS. All terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective representatives, successors and assigns. Each Party represents and warrants that he/she/it has not assigned or transferred to any person or entity any of the rights, claims, and demands released or discharged under this Agreement. Any such assignment or transfer shall be null and void from inception. Section 11. RIGHT TO REQUIRE PERFORMANCE. The failure of a Party at any time to require performance by any other Party of any of the provisions of this Agreement shall in no way affect the right of the first Party to enforce any provisions of the Agreement. Any waiver by a Party of any breach of this Agreement shall not constitute a waiver of any succeeding breach or a waiver of the any provision in the Agreement. Section 12. CLAIMS AND LIENS OF THIRD PARTIES. Retiree agrees to defend, indemnify and hold harmless CalPERS and Redlands from any and all claims, demands, actions, suits, proceedings and liens against the proceeds of this settlement. Settlement Agreement and Release Page 5 of 7 Section 13. ENTIRE AGREEMENT. T. This Agreement contains the entire,agreement between the Parties relating to its subject matter and all prior and contemporaneous agreements, understandings, representations, and statements, both oral and written, are merged herein. Section` 4. MODIFICATION. This Agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by all of the Parties and/or their authorized representatives. Section 15. LAW OF THE AGREEMENT, Any action o proceeding brought for the purpose of enforcing this Agreement shall be governed by the laws of the State of California, Section 16. NCIH WAIVER OF PRIVILEGES OR IMMUNITIES. Notwithstanding any term or condition of this Agreement, all privileges and immunities from liability, including without limitation the provisions of the California Tart Claims Act (California Government Code sections 810, et seq.) and any exemptions from rules as provided by law, are not waned by Redlands or CalPERS and shall apply to any claim or demand made against Redlands and/or CalPERS which arises out of this Agreement. Section 17. 'SEVERABILITY: If any-term,covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, and/or unenforceable, the remainder of the provisions of this Agreement shall remain in full force;and effect and shall in no way be affected, impaired, or invalidated. Section 18. AMBIGUITIES NOT HELD AGAINST DRAFTER. . This Agreement having been freely and voluntarily negotiated by all Parties, the rule that ambiguous contractual provisions are construed against the drafter of the provision shall be inapplicable to this Agreement, Section 19. NO MODIFICATION OF PUBLIC EMPLOYEES' RETIREMENT LA`1111. Each Party acknowledges and agrees that nothing in this Agreement deletes, modifies, or changes in any way the duties, responsibilities, and authority of CalPERS and its Beard of Administration to administer and carry out the Public Employees' Settlement Agreement and Release Page 6 of 7 Retirement Act (Government Code, sections 20000, et seq.) with respect to Redlands and Retirees. Section 20. UNDERSTANDING OF AGREEMENT. Each Party acknowledges and agrees that they are represented by counsel in connection with the drafting and execution of this Agreement and that they have read and fully understand the terms and conditions of the Agreement. Section 21. PUBLICITY. Each Party agrees not to hold a press conference or issue a press release concerning the terms or conditions of this Agreement. Section 22. CAPTIONS. Captions are inserted for the convenience of reference only and do not define, describe, limit or expand the terms of this Agreement or the intent of the Parties. Section 23. AGREEMENT CONDITIONED UPON ALL PARTIES' SIGNATURES. This Agreement is expressly made conditional upon all Parties' signature of the Agreement. The effective date of this Agreement is the first date on which all Parties have signed this Agreement. IN WITNESS THEREOF, the Parties have signed this Agreement the day and year written next to their signatures below in a manner fully binding upon them. Settlement Agreement and Release Page 7 of 7 Dated: —32000 f Mel.L. Ma in California Public Employees' Retirement System Dated: 0-r , 2000 By: w, _ . Ken Marzin, Chief Actuarial and Employer Services Division CITY OF REDLANDS Dated: August 1, 2000 By: Pat Gilbreath, Mayor Attest: gy By:( E orrifer, City Clerk