Ross and City Settlement Agreement and General Release of Claims 05-20-15

8/9/2019 Ross and City Settlement Agreement and General Release of Claims 05-20-15

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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

v1

7

STU ROSS


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Documents

Ross and City Settlement Agreement and General Release of Claims 05-20-15