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HomeMy WebLinkAboutContracts & Agreements_92-20011 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GENERAL AND SPECIAL RELEASE AND SETTLEMENT AGREEMENT This General and Special Release and Settlement Agreement (hereinafter referred to as this "Agreement") is made by and between the City of Redlands ("City") and Claude Upshaw ("Mr. Upshaw") who together are sometimes collectively referred to herein as the "Parties". RECITALS WHEREAS, Mr. Upshaw is presently employed as a sworn police officer with the City; and WHEREAS, Mr. Upshaw intends to file an application for an industrial disability retirement with the Public Employees' Retirement System (PERS) no later than July 15, 2001, and asserts that he is permanently incapacitated from the performance of his duties as defined by the PERS laws; and WHEREAS, Mr. Upshaw desires as part of this settlement to settle any and all rights he may have to any benefits or compensation which might be available to him though the workers' compensation laws of the State of California; and WHEREAS, City asserts that it has proceeded with good cause and has responded to Mr. Upshaw's workers' compensation claims through its staff and workers' compensation program administrator; and WHEREAS, Mr. Upshaw wishes to retire from his employment with the City effective upon approval of an industrial disability retirement, and further wishes to waive any and all claims to any and all entitlements he may have, except as set forth herein, relating to his present job and/or any other benefits of employment; and WHEREAS, the City and Mr. Upshaw wish to finally settle and resolve all grievances, disputes, controversies, claims and actions between them in order to make their peace and avoid the uncertainties of further litigation, investigation or review, and the expenses incidental thereto; NOW, THEREFORE, in consideration of the mutual promises contained herein, and for such other good and valuable consideration, the receipt of which the Parties hereto acknowledge, the City of Redlands and Mr. Claude Upshaw agree as follows: 1. Mr. Upshaw hereby and forever releases and discharges the City, and any affiliated entities of the City, as well as all direct or indirect successors, elected officials, officers, directors, predecessors, assigns, agents, insurers, employees, attorneys and representatives, and each of them, past and present, of the City from any and all 1 causes of action, actions, judgements, liens, indebtedness, damages, losses, claims, liabilities and demands of whatsoever kind or character, known and unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, whether or not heretofore brought before any state or federal court or before any state or federal agency or other governmental entity, and from all claims arising from or related or attributable to Mr. Upshaw's employment with the City, and from any grievance or any other dispute between the Parties, as described in the recitals in this Agreement, whenever such claims may have occurred. This release and discharge includes, but is not limited to, any potential claims of wrongful termination, retaliation, discrimination, intentional and negligent infliction of emotional distress, violation of due process and workers' compensation benefits as set out in the attached Compromise and Release and pursuant to the provisions of the workers' compensation laws, as well as any and all claims for attorney's fees and costs attendant to any such claims or assertion thereof in any forum. 1 Mr. Upshaw understands that this Agreement extends to all grievances, disputes or claims of every nature and kind, known or unknown, suspected or unsuspected, past, present or future, arising from or attributable to the above -referenced matters and disputes. Mr. Upshaw also understands and expressly agrees that this Agreement also extends to any other matter, event or claim occurring prior to the date of execution of this Agreement. Mr. Upshaw further acknowledges that any and all rights granted him under Section 1542 of the California Civil Code, or any other analogous federal or state law or regulation, are hereby expressly waived by him. Section 1542 of the California Civil Code reads as follows: Section 1542. Certain Claims Affected by General Release. 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 materially affected his settlement with the debtor. Nothing in this Agreement shall alter or limit Mr. Upshaw's rights and entitlements to have defense and or indemnification by the City pursuant to the Government Code. 3. Mr. Upshaw understands and expressly agrees that this Agreement shall bind and benefit his spouse, children, heirs, agents, attorneys, representatives, successors and assigns. 4. Mr. Upshaw covenants not to sue, or initiate against any other party to this Agreement or any person or entity described in this Agreement, any action or proceeding or to participate in the same individually, or as a member of a class, under any policy, contract, law or regulation, federal, state or local, pertaining in any manner whatsoever to the subject of the disputes addressed by this Agreement, including, but not limited to, Mr. Upshaw's continued employment with the City, and any rights Mr. Upshaw has, or may have, under any policy or local, state or federal statute, law or regulation. 5. Mr, Upshaw asserts that he is permanently incapacitated from the performance of his normal employment -related duties and will file an application for industrial disability retirement through PERS no later than July 15, 2001. Mr. Upshaw will obtain medical substantiation of his incapacity and provide it to the City when the application for industrial disability retirement is filed. If Mr. Upshaw has any sick leave on the books as of the date of the execution of this Agreement, he shall be compensated thereof pursuant to Article 21 of the Memorandum of Understanding between the City and the Redlands Police Officers' Association, and the City's records shall thereafter reflect that he shall have a "zero" sick leave balance, The City will not deny Mr. Upshaw's application for an industrial disability retirement if the City receives adequate medical substantiation of Mr. Upshaw's industrial disability as provided by the Public Employees' Retirement System ("PERS"). The City will approve or deny the application within ten (10) days of receipt of the medical substantiation. Approval of the industrial disability is contingent upon approval by the Workers' Compensation Appeals Board ("WCAB") of a Compromise and release by Mr. Upshaw settling all of his workers' compensation claims and waiving any other claims to benefits under the workers' compensation laws. 6. Mr. Upshaw agrees to withdraw from consideration by any state, local or federal agency any charge, grievance, claim, complaint, action or notice which he may have filed complaining of or pertaining to the subject matter of this dispute, including but not limited to any claims of discrimination under the California Fair Employment and -Housing Acts Title VII-of the Civil Rights -Act. of 1964, United States or State Constitutional provisions with the California Department of Fair Employment and Housing and Equal Opportunity Commission, Age Discrimination in Employment Act, or any other laws before any state, federal, or local agency or court. 7. The Parties acknowledge that each of them has carefully read this Agreement and has been advised fully of the legal and binding effect of its terms. The Parties further acknowledge that the only promises made each of them to induce them to sign this Agreement are those stated herein. Having been fully advised and informed, the 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Parties each voluntarily enter into this Agreement and/or the waiver of rights covered by this agreement. 8. Mr. Upshaw shall retire effective upon approval of his application for industrial disability retirement. The City will advance PERS disability payments to Mr, Upshaw until PERS begins issuing regular retirement checks, and agrees that the City shall be reimbursed by PERS at the earliest opportunity. 9. Settlement of Mr. Upshaw's actual and potential workers' compensation and rehabilitation claim is set out and controlled by a separate Compromise and Release Agreement. Submission of the Compromise and Release Agreement is for the purpose of obtaining approval of the portions of this Agreement which resolve the rights and/or liabilities of the Parties under the workers' compensation laws of the State of California. The approval of the Agreement by the WCAB shall not impair, restrict or in any way limit the release of other claims by Mr. Upshaw as set forth hereinafter in this Agreement. The order of the WCAB approving the Compromise and Release Agreement in its entirety is a condition precedent to the City's obligations described herein. If the City were unable to approve an industrial disability retirement and/or the WCAB were to fail to approve the Compromise and Release Agreement, then this Agreement shall be null and void, with Mr. Upshaw retaining full employment rights which are applicable to the City's Police Department sworn employees. Mr. Upshaw understands and agrees that any denial of the industrial disability retirement shall not give rise to a cause of action for breach of this Contract, as the only remedy is that he will have the same rights as he may had if this Agreement never existed. 10. Mr. Upshaw agrees that he shall be precluded from ever being employed by the City either as an employee or consultant, and that he will not submit an application or otherwise seek to be hired by the City in any capacity. 11. Any documents pertaining to allegations/investigations of claimed misconduct by Mr. Upshaw shall be placed ina separate sealed file to be maintained by the Personnel Department. It is understood and agreed that release and/or disclosure of the materials contained in the sealed file and/or contents thereof will made upon receipt by the City of a written reicase signed by Mr. Upshaw, a lawfully issued subpoena or other court order, or upon request or inquiry by any law enforcement, governmental, or regulatory agency investigating Mr, Upshaw, and/or in any other proceedings as may occur between the City and Mr. Upshaw, and/or as otherwise required by law. Mr. Upshaw agrees to refer any prospective employer, or others, seeking a reference directly to the City's Personnel 4 Department for any such reference. Unless disclosure of the sealed file is authorized under the circumstances described above, the Personnel Department will only provide Mr. Upshaw's date of employment, the positions held and salary range. 12. The Parties understand, acknowledge, and agree that this a compromise settlement of a disputed claim or disputed claims, and that nothing herein shall be deemed or construed at any time or for any purpose as an admission of the merits of any claim or defense. 13, The Parties shall bear their own costs and attorneys' fees incurred in connection with all matters resolved by this Agreement, whether or not incurred as of the date of this Agreement. 14. No waiver by any party of any breach of any term or provision of this Agreement shall be construed to be, nor be, a waiver of any preceding, concurrent or succeeding breach of the same, or any other term or provision thereof. No waiver shall be binding unless made in writing and signed by the party or individual to charged or held bound. 15. Except as expressly provided herein, should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provisions shall be deemed not to be a part of this Agreement, except as otherwise provided in this Agreement. 16, This Agreement may be executed in one or more counterparts and each such counterpart shall be enforceable as against the signing party upon full execution of the Agreement in counterparts by all parties. 17, The City agrees to pay the cost of completion of Mr. Upshaw's Bachelor of Science degree at the University of Redlands through the calendar year 2001. 18. Each of the Parties and their respective counsel has reviewed this Agreement and accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in any interpretation of this Agreement. 19. Mr. Upshaw authorizes, instructs and directs his attorneys to execute all documents necessary and to take all actions required by City to accomplish and carry out the terms of this Agreement. 5 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: �10- i Dated: June 19, 2001 ATTEST: City ' erk By: By: 6 Claude Upshaw Mayor, Pat Gilbreath , 7. Liens not mentioned in Paragraph No.-6 are to be disposed of as follows. 8. For the purpose of determining the lien claim(s) filed for benefits paid pursuant to the Unemployment Insurance Code or for benefits furnished by lien claimants defined in labor Code Sec. 4903.1, the parties propose reduction of the lien claims(s) In accordance with formulae attached. 9. Applicant's (employee's) attorney requests a fee of $ (,Z 5-0 Amount of attorney fee previously paid, if any, $ 10. Reason for Compromise, special provisions regarding rehabilitation and death benefit claims, and additional information: 10A. See attached Addendum. 10B. See attached Request for Thomas Finding. 10C. The obligations of the defendant under this Compromise and Release are contingent upon applicant's execution of General and Special Release and Settlement Agreement, and this Compromise and Release shall not be submitted to the Workers' Compensation Appeals Board for approval until after the General and Special Release and Settlement Agreement has been signed by applicant and applicant's counsel. 11. It is agreed by all parties hereto that the filing of this document is the filing of an application on behalf of the employee, and that the WCAB may in Its discretion set the matter for hearing as a regular application, reserving to the parties the right to put in issue any of the facts admitted herein, and that If hearing is held with this document used as an application the defendants shall have available to them all defenses that were available as of the date of filing of this document, and that the WCAB may thereafter either approve said Compromise Agreement and Release or disapprove the same and issue Findings and Award after he ring has been held and the matter regularly submitted for decision.f�-jek Witness thjsignature - eof this v day of WIT THE APPLICANT'S (EMPLOYEE'S) SIGNATURE MUST BE ATTESTED BY TWO DISINTERESTED PERSONS OR ACKNOWLEDGED BEFORE A NOTARY PUBLIC. County of STATE OF CALIFORNIA on this day of AD, 19 , before me, (DATE) a Notary Public in and for the said County and State, residing therein, duly commissioned and sworn, personally appeared known to me to be the person whose name subscribed to the within instrument, and acknowledged to me that _he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this Certificate first above written. Notary Public in and for said County and State of California DIA WCAB FORM 15 (REV. 2/90) (PAGE 2) property generally located on the east side of Alessandro Road between San Timoteo Canyon Road and West Sunset Drive in Specific Plan No. 43 (Sunset Ranch 48, LLC, applicant) and recommended an award of 91 points. Community Development Director Shaw explained the allocation procedure, and Public Works Director Mutter explained the award of -5 points in the Streets category. On behalf of the applicant, Pat Meyer reported the map has been approved and recorded for this project; he also noted this is the only project being considered for this quarter. Councilmember Peppier moved to continue this matter to the July 3, 2001, meeting for further information. Motion seconded by Councilmember Freedman and carried unanimously. Statement of Investment Policy - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously approved the Statement of Investment Policy as presented by the City Treasurer. Settlement Agreement - Claude Upshaw - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously acknowledged a copy of the compromise and release agreement with Claude Upshaw. In accordance with the requirement of the Brown Act, this agreement was on the agenda to notify the public of the settlement agreement in accordance with the terms agreed to in a closed session. Resolution No. 5904 - Grant Funds - Park Playground - Following brief discussion, on motion of Councilmember Gilbreath, seconded by Councilmember George, the City Council unanimously adopted Resolution No. 5904, a resolution of the City Council of the City of Redlands approving an application for grant funds for the Park Playground Accessibility and Recycling Grant Program. Resolution No. 5905 - Grant Funds - Safe Neighborhood Parks - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously adopted Resolution No. 5905, a resolution of the City Council of the City of Redlands approving an application for the per capita grant program under the Safe Neighborhood Parks, Clean Water, Clean Air, and Coastal Protection Bond Act of 2000. Agreements - Church Street Widening Project - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously approved agreements for Purchase of Fee Interest with Ellen R. Baum, Trustee; Church of Religious Science of Redlands; and Target Community Schools in conjunction with the Church Street Widening Project and authorized the Mayor and City Clerk to sign the agreements on behalf of the City. Resolution No. 5908 - Grant Funds - Tires - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously adopted Resolution No. 5908, a resolution of the City Council of the City of Redlands authorizing submission of a grant application to the California June 19, 2001 Page 3