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HomeMy WebLinkAboutContracts & Agreements_61-2014_CCv0001.pdf GENERAL RELEASE AND SETTLEMENT AGREEMENT This General Release and Settlement Agreement("Agreement) is made and entered into this 6th day of May,2014("Effective Date")by and between the City of Redlands("CITY")and Sheila Harbert("EMPLOYEE"). CITY and HARBERT may sometimes individually be referred to herein as a"Party"and,together,as the"Parties." I. GENERAL RECITALS This Agreement is made for the following purposes and with reference to the fallowing facts: 1.1 Claims and Purpose: A. Action. There is a lawsuit pending in the San Bernardino Superior Court filed by EMPLOYEE on or about January 22, 2013,titled Sheila Harbert v. City r�.f Redlands and Does I through 50, inclusive, Case No. CIVDS 1300651 ("Action"). The Action includes claims for Discrimination Based on Age and Disability (Cal. Gov't Code § 12940(a)); Failure to Accommodate (Cal. Gov't Code § 12940(m)); and Retaliation (Cal. Gov't Code § 12940(h).) EMPLOYEE has also filed a Worker's Compensation Claim petition with the San Bernardino Workers' Compensation Appeals Board ("WCAB"), and the EAMS case number for that petition is ADJ8646001 ("Claim"). B. Purpose. The purpose of this Agreement is to settle and compromise all disputes and controversies that exist among the Parties including, but not limited to, any and all claims that are raised or might have been raised in the Action and in connection with EMPLOYEE's employment with thy;CITY. IL SETTLEMENT OBLIGATIONS 2.1 Obligations of CITY. A. Payment to EMPLOYEE, Subject to the adherence to the terms of this Agreement,CITY will pay to EMPLOYEE for the settlement of the Action in the form of a one- time payment of Fifty Seven Thousand Five Hundred Dollars ($57,500) fully attributed to the Action and Claim. B. Time and Method of Payment. The payment set forth above shall be made within thirty (30) days of the Effective Date of this Agreement. The payment will be made in two checks for the total of Twenty-One Thousand Eight Hundred Dollars ($21,808)made payable to the "Law Offices of Joseph Avrahay" and one check for the total Thirty-Five Thousand Seven Hundred Dollars ($35,700) made payable to Sheila Harbert. CITY will issue a Tax Form 1099 for this amount. EMPLOYEE's counsel will also provide CITY with a completed W-9 prier to the issuance of this payment. EMPLOYEE further agrees to complete a Medicare Query Questionnaire for submission to Medicare; before the issuance of this payment. The completed Medicare Query Questionnaire will be provided to CITY's counsel for submission to Medicare in conformance with the new Medicare Secondary Payer Reporting Act requirements. 1 C. Sealing of Personnel Record. CITY agrees to seal EMPLOYEE's personnel file making it inaccessible to any prospective employers without EMPLOYEE's express written authorization. In addition, if CITY is contacted by a prospective employer regarding EMPLOYEE, it will respond with the following information only: (1) confirmation that EMPLOYEE was employed by CITY: (2) identification of EMPLOYEE's dates of employment, (3)) identification of the various positions EMPLOYEE held with CITY; and (4) EMPLOYEE's salary at the time her employment ended. 12 Obligations of EMPLOYEE: A. Compromise and Release of Claim. EMPLOYEE and CITY acknowledge and agree that the Parties' respective counsel have agreed upon a form of Compromise and Release Agreement with respect to EMPLOYEE's Claim prior to the Effective Date of this Agreement, Accordingly, EMPLOYEE shall submit a Compromise and Release of all claims, in the form attached hereto as Exhibit"A,"to the WCAB within five(5)business days of the Effective Date of this Agreement. Approval by the WCAB of the Compromise and Release is a material term of this Agreement and the failure of the WCAB to approve this Agreement withiin twenty days of the Effective Date of this Agreement shall cause this Agreement to immediately become null and void without any further action by the Parties. CITY shall have no obligation or liability to EMPLOYEE B. Dismissal of Action. In addition to the other obligations of EMPLOYEE set forth herein, EMPLOYEE agrees that she will file a Notice of Settlement with the San Bernardino Superior Court within five(5)business days of the Effective Date of this Agreement. Moreover, EMPLOYEE will cause the entire Action to be dismissed with prejudice from the San Bernardino Superior Court within ten(10) business days of receipt by EMPLOYEE's counsel of the payment set forth in Paragraph 2.1.A. of this Agreement. C. No Other Claims. EMPLOYEE represents that she has no other pending claims, suits, or charges against CITY or any other Releasee, as defined in Paragraph 4.1 of this Agreement,other than the Action and Claim, D. Indemnification. EMPLOYEE will be responsible for all tax obligations, if any, that may arise as a result of this settlement. Moreover, EMPLOYEE agrees to promptly pay any taxes or penalties, arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by EMPLOYEE as a result of this settlement. EMPLOYEE further agrees that CITY has no duty to indemnify, hold harmless or defend her against any tax claim or assessment or to pay for any costs associated with any tax claim or penalties that may be brought or assessed against her. EMPLOYEE further agrees to cooperate without charge to CITY in defending any tax claim that may be brought or asserted against CITY as a result of this settlement. E. No Future Employment with CITY. EMPLOYEE agrees,warrants and represents that she will not apply for, and if offered, will not accept any employment with or by CITY at any time. EMPLOYEE understands and agrees that a violation of this Agreement will constitute good cause for CITY to reject EMPLOYEE's application for employment or to terminate her employment status. EMPLOYEE further understands and agrees that should she accept CITY 2 12108593-1 employment, the acceptances will constitute misconduct and EMPLOYEE may be terminated without cause or notice and without recourse to any CITY policy, complaint resolution or contractual grievance process. In consideration for the promises contained in this Agreement, EMPLOYEE expressly waives any right she may have to any CITY complaint or contractual grievance process, including any rights she might otherwise have to any notice or opportunity to be heard. F. Payment of Wages and Benefits. EMPLOYEE warrants that she has been paid all wages, including overtime and that she has either taken or been paid for all applicable meal and rest periods. EMPLOYEE further warrants that she has been paid for all vacation. G. Covenant Not to Sue. In consideration for the promises set forth in this Agreement, and to the extent permitted by law, EMPLOYEE covenants that she will not file, initiate, or instigate the filing of any lawsuits, complaints, or charges by herself or by any other persons or party in any state or federal court or any proceeding before any local, state, or federal agency claiming that CITY or any individual or entity, that she has released pursuant to Paragraph 4.1 of this Agreement has violated any taw, including but not limited to, any claims that have been made or that could have been made in the Action. Breach of this provision will constitute a material breach of this Agreement. This provision-does not waive any right that cannot be waived by private agreement. III. COMPROMISE OF DISPL-FED CLAIMS 3.1 Non-Admission of Liability: The Parties acknowledge that the settlement embodied in this Agreement is a compromise of disputed claims and is not an admission of liability. IV. GENERAL RELEASE AND WAIVER OF CLAIMS 4.1 Mutual General Release by the Parties: For and in consideration of the obligations described above, EMPLOYEE for, herself, and on behalf of her agents, attorneys, representatives, successors and assigns, forever releases and discharges CITY, and as applicable, its elected officials, agents,partners,employees, former employees,joint ventures., representatives, successors, assigns, customers, employees, officers, and attorneys("Releasees") from any and all claims, demands, debts, liabilities, attorneys' fees., accounts, obligations, costs, expenses, liens, actions, causes of action (at law, in equity, or otherwise), rights, rights of action, rights of indemnity (legal or equitable), rights to subrogation, rights to contribution and remedies of any nature whatsoever, known or unknown (except for those arising as a result of a breach of any provision of this Agreement), including, but not limited to attorneys' fees and costs relating to the Action, and any claims relating to her employment with CITY or the termination of that employment or any actions relating directly or indirectly to any transaction, affairs or occurrences between them to date, including, but not 3 limited to all loss, liability, damages, claims, charges, complaints, demands, and causes of action arising directly or indirectly out of or in any way connected with the Action and any claims under Title VII of the Civil Rights Act of 1964 (race, color, religion, sex and national origin discrimination); 29 U.S.C. Section 206(d)(i) (equal pay); 29 U.S.C. Sections 621-634 (age discrimination);the California Workers' Compensation Act;the California Fair and Employment and Housing Act (discrimination including race, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, gender, religion, or age); as well as any violation any claim for violation of public policy, and intentional infliction of emotional distress. In the event EMPLOYEE becomes a party, representative, or member of any released claim against CITY, EMPLOYEE agrees to waive her right to any monetary award in such an action. For and in consideration of the obligations described above, CITY, and as applicable, its elected officials, agents, partners, employees, former employees,joint ventures, representatives, successors, assigns, employees, officers, and attorneys, forever releases and discharges EMPLOYEE for, herself, and on behalf of her agents, attorneys, representatives, successors and assigns, from any and all claims, demands, debts, liabilities, attorneys' fees, accounts, obligations, costs, -expenses, liens, actions, causes of action (at law, in equity, or otherwise), rights, rights of action, rights of indemnity (legal or equitable), rights to subrogation, rights to contribution and remedies of any nature whatsoever, known or unknown(except,for those arising as a result of a breach of any provision of this Agreement), including, but not limited to attorneys' fees and costs relating to the Action, and any claims relating to her employment with CITY or the termination of that employment or any actions relating directly or indirectly to any transaction, affairs or occurrences between them to date, including, but not limited to all loss, liability, damages, claims, charges, complaints, demands, and causes of action arising directly or indirectly out of or in any way connected with the Action, 4.2 California Civil Code Section 1542. EMPLOYEE and CITY understand that the releases provided for in this Agreement extend to all claims,whether or not claimed or suspected, up to and including the Effective Date of this Agreement, and constitute a waiver of each and all of the provisions of California Civil Code section 15422,which reads as follows: A general release does not extend to 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. EMPLOYEE and CITY hereby acknowledge that the effect and import of this provision has been fully explained to her/it and that she/it is aware of its contents and legal effect. V. MISCELLANEOUS PROVISIONS 5.1 'Voluntary Execution: This Agreement is executed voluntarily and without duress or undue influence on the part of or on behalf of either of the Parties, or of any other person, firm, or other entity. 4 12108593,1 5.2 Attorneys' Fees and Costs: It is understood and agreed that each Party shall bear its own fees and costs associated with the Action and settlement of the Action, except as provided in Section 2.1.A. In the event, a Party seeks enforcement of this Agreement, or any provision of this Agreement through judicial intervention, the prevailing Party in such action shalt be entitled to recover reasonable attorneys' fees and costs, including fees for use of in-house counsel by a Party. 5.3 Entire Agreement. This Agreement and the Compromise and Release contain the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof. No representations, oral or otherwise, express or implied, other than those contained herein have been made by any Party. No other agreements not specifically referred to herein, oral or otherwise,shall be deemed to exist or to bind any of the Parties. 5.4 Undue DOW.: The Parties agree, on the demand of either Party, to execute or deliver any instrument, furnish any information or perform any other act reasonably necessary to carry out the provisions of this Agreement without undue delay or expense. 5.5 Invalid Provision: Should any provision of this Agreement be declared or determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms or provisions will not be affected thereby and said illegal, unenforceable or invalid part, term, or provision will be deemed not to be part of this Agreement. 5.6 Bindin and Non-Assignment: This Agreement will bind and inure to the benefit of the Parties and to their respective successors,assigns, legatees,heirs, and personal representatives. Further, EMPLOYEE warrants that she has not assigned any interest in any claim against CITY to any individual or entity. The Parties warrant that they have the authority and power to execute and enter into this Agreement, 5.7 Choice of Law. This Agreement is entered into pursuant to the laws of the State of California and will be interpreted pursuant to those laws. 5.8 Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which will constitute together one and the same instrument. A legible executed facsimile may be used in lieu of an original. 5 5.9 Voluntary Execution: By executing this Agreement each Party represents that it does so freely and voluntarily and that each Party is fully aware of the contents and effects hereof and that this Agreement is entered into without duress or undue influence on the part of or on behalf of either of the Parties, or of any other person,.form or other entity. /I/ Ili lfi 6 5.10 At, me N.Rrview• EMPLOYEE understands and awes that she has been advised in writing of her right to consult with an attorney prior to signing this Agreement. IN WITNESS WHEREOF, the Parties have executed this Centel Release and ,Settlement Agreement as of its Effective Date.. APPROVED AND ACCEPTED: SHEILA HARBERT By: Sheila Harbert CITY OF REDL.ANDS By: Pete Aguilar,Mayer Attest: -" Sam Irwin,City Clerk APPROVED AS'TO FORM: DATED: --I LAW OFFICES OF JOSEPH Y.AVRAHAMY I3y. Joseph Y. y Attorneys for Sheila Harbert DATED: 2-6 — AT IN ON,ANDEL ON, LOVA,RUUD&ROMO thy: � Irma Rodrigu oia .Attorneys for City of Redlands 7 1'�ifl�593.i