HomeMy WebLinkAboutGesell SettlementSETTLEMENT AGREEMENT WITH GENERAL AND SPECIAL RELEASE
THIS SETTLEMENT AGREEMENT WITH GENERAL AND SPECIAL
RELEASE, ("Agreement") is made and entered into May 20, 2015 by and between the City of San
Luis Obispo ("City") and Stephen Gesell ("Gesell"). City and Gesell are referred to collectively
herein as "the Parties."
WHEREAS, the Parties wish to arrive at a separation of employment settlement and
to resolve all disputes regarding the separation of employment and/or potential, pending, future, or
existing claims between them:
NOW, THEREFORE, in consideration of the following mutual covenants, the
Parties agree as follows:
(1) Effective close of business May 29, 2015, Gesell will be separated from
employment with the City ("Separation Date").
(2) The City hereby agrees to pay Gesell a total sum not to exceed one hundred
twenty thousand dollars and no cents ($120,000.00), payable in a hump sum within 3 business days
after the expiration of the revocation period set forth in Section (4)(e)(3), below, as severance and in
exchange for this fully executed waiver and release of claims, except as provided in Section (4)(e)(3).
The parties hereby agree that the lump sum shall be divided as follows: One Hundred Thirteen
Thousand Eight Hundred Eighty Dollars and No Cents ($113,880.00) for severance and general
consideration of this mutual waiver and release and Six Thousand One Hundred Twenty Dollars and
No Cents ($6,120.00) as additional consideration for the waiver of rights and claims arising under
the Age Discrimination in Employment Act and Older Workers Benefit Protection Act. The
Parties agree that the total severance and waiver amount herein does not include any wages
and/or accrued vacation due to Gesell through the Separation Date, which are required to be paid
to employees upon separation of employment pursuant to otherwise applicable law; nothing
herein shall be construed as a waiver or release of claims for payment of those regular wages or
accrued vacation amounts otherwise due to Gesell through the Separation Date in the event the
City should fail to pay said amounts as required by law.
(3) Group health insurance benefits are paid for in advance through payroll
deduction and, therefore, wiii terminate on June 30, 20i5. Gesell inay coat n[aru--tt-Liiys grog -
insurance benefits to the extent allowed under COBRA or other applicable law.
(4) WAIVER AND RELEASE BY EMPLOYEE. Subject to the City's
timely providing the payments and other consideration as set out in this Agreement, Gesell,
Gesell's heirs, executors, administrators, successors, and assigns, hereby knowingly and
voluntarily agree not to sue, or to otherwise bring any kind of Claim against the City and
releases, acquits and forever discharges City from any Claims for any reason whatsoever based
on anything that occurred through the Separation Date, including but not limited to the future
employment -related actions agreed to herein.
(a) "City" includes the City of San Luis Obispo, each of its elected or
appointed officials, directors, officers, officials, employees, insurers,
representatives, agents and lawyers, and all persons acting by, through, under or
in concert with them, or any of them.
(b) "Claims" include liability, action, suit, claim, administrative charge, loss,
debt, lien, damages, judgment, cost or expense, contract, agreement, known or
unknown, liquidated or unliquidated, fixed or contingent, which Gesell has ever
had or ever may have, arising out of or in conjunction with Gesell's employment
with the City or the termination thereof, excluding unemployment insurance
benefits but including, without limitation, claims under federal, state or local
common law or statute, as well as any form of employment discrimination
prohibited under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Older
Workers Benefit Protection Act, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, ERISA, the Worker Adjustment and Retraining
Notification Act; The Family and Medical Leave Act; the California Family
Rights Act; the Rehabilitation Act of 1973, the Equal Pay Act, as amended, the
California Fair Employment and Dousing Act, as amended, the California Labor
Code and all rights under the California Public Safety Officers Procedural Bill of
Rights found at Government Code Sections 3300 et seq (including but not limited
to waiver of the right to an opportunity for an administrative appeal under
Govuniniciit Code Section 3304(c)), and Pitchess statutes found at Penal Code
Sections 830 et seq., and any other local, state or federal anti -discrimination law
or ordinance, any applicable collective bargaining agreement, any applicable
wage and hour laws to the fullest extent allowed by law, and from wrongful
discharge, severance pay, breach of contract, breach of any express or implied
promise, retaliation, breach of public policy, defamation, negligence or other
tortious conduct, or any other theory, whether legal or equitable.
(c) Fxcept as set forth herein, Gesell represents that he has been reimbursed
for all work -related expenses, and has been paid all wages and overtime due as of
ule µ0.N. of signingthis agreement,
(d) Gesell acknowledges that he is familiar with the provisions of Section
1542 of the California Civil Code and covenants that this Agreement and the
releases contained in it constitute an express waiver and release of any and all
rights and claims which would otherwise be preserved by operation of Section
1542 of the California Civil Code. Section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
(e) In accordance with the Age Discrimination in Employment Act (ADEA) as
amended by the Older Workers Benefit Protection Act (OWBPA), and only as to
claims arising under those statutes, Gesell should be aware of the following:
(1) Gesell should consult with an attorney before signing this Agreement.
(2) Gesell has twenty-one (21) days from May 20, 2015 (date of delivery
of this agreement) to consider this Agreement before executing it, but may
decide to execute the agreement before the expiration of 21 days if he
wishes.
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(3) Gesell has seven (7) days after signing this Agreement to revoke and
cancel those provisions of this Agreement relating to the claims set forth
in this paragraph 4(e) and, if that right to cancel is exercised, those
provisions of this Agreement relating to the claims set forth in this
paragraph 4(e) shall be of no force or effect. Notice of revocation must be
made in writing and must be received by Monica Irons, Director of
Hurnan Resources at the City of San Luis Obispo, 990 Palm Street, San
Luis Obispo, CA 93401 no later than close of business
on (seven days following date of execution). All other
provisions of this Agreement not relating to claims set forth in this
paragraph 4(e) shall be binding and enforceable upon the Parties from and
after the date of execution of this Agreement, notwithstanding any
revocation of any waiver or release relating to claims arising under ADEA
or OWBPA as set forth in this paragraph 4(e). If Gesell revokes this
Agreement as it relates to ADEA/OWPBA or comparable state claims, the
City will be immediately released of any further obligation as to those
claims under paragraph 2 of this Agreement, and the City may recover any
payments already made under this Agreement in consideration of release
of those claims, not to exceed six thousand one hundred twenty dollars
and no cents ($6,120.00).
(5) Gesell covenants that Gesell has not filed any complaint, grievance, claim,
administrative charge, or action against the City or individuals or entities released in this Agreement,
and has not commenced, and will not commence, legal proceedings of any type except
unemployment insurance benefits, whether on his own behalf or on behalf of any other person or
entity, against the City or individuals or entities released in this Agreement, or any of their respective
successors or assigns. Gesell further represents and warrants that he has not sold, assigned or
transferred, or purported to sell, assign or transfer, and shall not hereafter sell, assign or transfer, any
obligations, liabilities, demands, claims, costs, expenses, debts, controversies, damages, rights,
actions or causes of action released pursuant to this Agreement. Gesell further covenants not to
maintain or join in any such legal proceeding, suit, charge, or action with respect to any such claim
against the City, except as may be required by law or except as necessary to enforce this Agreement.
(6) The Parties and their agents or representatives shall not disparage one
another through their public statements regarding the svparafio-P.- —m-e. .r-p^nsp-- -
to inquiries for reasons of the separation, the Parties shall generally respond that the Parties have
fundamental differences about the appfopriate roles and responsibilities of the Police Chief that
interfered with their ability to effectively communicate and serve the City at the highest level'
(7) Return of Property. Gesell shall return to City any and all of City's property
and documents which he may have in his possession, custody or control, including but not limited to
the following, by close of business on Friday May 22, 2015 and coordinate such return with Captain
Chris Staley: Vehicle assigned to Police Chief, City credit card, keys, and electronic devices.
(8) Tax Consequences. Gesell agrees that City has made no representation about
and takes no position on the tax consequences of this Agreement. A dispute regarding the tax status
of this Agreement does not affect the validity of this Agreement. Gesell has had an opportunity to
discuss the potential consequences of the Agreement with Gesell's own counsel and agrees to
indemnify and hold harmless City from and against any and all costs and assessments, including but
not limited to, delinquent taxes, penalties and/or assessments levied against City for Gesell's portion
of any such taxes as a result of actions taken by City at Gesell's request pursuant to this Agreement.
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(9) This Agreement shall be construed under the Laws of the State of California
and any dispute arising hereunder shall be conducted under the jurisdiction of the County of San Luis
Obispo Superior Court.
(10) If any portion of this Agreement shall be held invalid by a court of competent
jurisdiction, the validity of the remainder of this Agreement shall not be affected.
(11) This Agreement supersedes any previous understandings, agreements or
correspondence of the Parties on this subject and is binding on the Parties, their heirs, executors,
administrators, and successors in interest.
(12) This document is the entire Agreement between Gesell and the City. The
City has made no promises to Gesell other than those in this Agreement. This Agreement may not be
changed orally, only in a written document signed by both Gesell and the City. For purposes of this
Agreement, the Parties shall be deemed to have participated equally in its drafting,
(13) In the event of any litigation for breach of any provision or enforcement of
this Agreement, the prevailing party in connection therewith shall be entitled to recover attorneys'
fees and costs.
(14) The signatory executing this Agreement on behalf of the City hereby
represents that she has the full authority and power to do so, and no further actions are otherwise
necessary to bind the City,
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
fir.vl ahnvc wrirrrn
THIS AGREEMENT CONTAINS A RELEASE. PLEASE READ CAREFULLY
BEFORE SIGNING,
APPROVED AS TO FORM AND CONTENT:
LIry Manager J
Date: kv/ 2t1 UIC
APPROVED AS TO FORM:
� 61,
g
ISTINE DII:TRICK
City Attorney
STEPF ESELL
Date:
-�-,1,�`
DAVID P. WARREN, r5Q.
Law Offices of David P. Warren
Attorneys for Stephen Gesell
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ACKNOWLEDGEMENT OF RECEIPT
I, Stephen Gesell, hereby acknowledge that I have received my severance check.
Delivered By,
Name
Date and Time
Signature
Received By:
. I
Signature
ACKNOWLEDGEMENT OF RECEIPT
I, Steve Gesell, hereby acknowledge that I have received my final paycheck for work through
May 29, 2015 including a payout of accrued vacation hours.
Delivered By.
Name
5°a% .t5 `�'36 We
Date and Time
C--Q�tk 'Q-' ) --
Signature �7j
Received By.
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