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HomeMy WebLinkAboutARROYO, JORGE (SANTA ANA POLICE DEPARTMENT)-2015 (2)N-2017-026 SETTLEMENT AGREEMENT AND RELEASE This settlement agreement and release ("Agreement") is made by and between the following parties: JORGE ARROYO ("ARROYO") and CITY OF SANTA ANA ("THE CITY"), (hereinafter collectively referred to as "AGREEING PARTIES"). I. RECITALS A. WHEREAS, in May, 2015, ARROYO was involved in the service of a search warrant at a marijuana dispensary that gave rise to allegations that he and other officers were ingesting marijuana edibles. While the allegations of ingesting marijuana edibles were proven by the CITY and the Orange County District Attorney's office to be untrue, the CITY initiated an internally generated administrative investigation of the involved officers, including ARROYO, as the CITY believed the officers may have engaged in other acts of misconduct. B. WHEREAS, during the administrative investigation, the SAPOA, on behalf of ARROYO and two other officers, brought a lawsuit alleging certain violations of their rights under the Public Safety Officers Procedural Bili of Rights Act and Penal Code §632 and 637.2. The CITY denied all liability. This litigation is referred to as Santa Ana Police Officers Association, et al. v. City of Santa Ana, et al., Orange County Superior Court Case No. 30-2015-00801604-CU-OE-CJC and California Court of Appeal Case No. G053126 C. WHEREAS, in or about April, 2016, the Chief of Police terminated ARROYO based on alleged misconduct and ARROYO filed a request for administrative appeal before the City of Santa Ana Personnel Review Board. D. WHEREAS, ARROYO believes that he has additional claims against the CITY for violations of his rights under the Public Safety Officers Procedural Bill of Rights Act and the California Labor Code, but has not yet filed any litigation based on these claims. E. WHEREAS, ARROYO alleges that he suffered damages as a result of the subject incident(s). The CITY denies all liability. F. WHEREAS, the Agreeing Parties each recognize that the dispute and any subsequent litigation as between them requires substantial time, effort and expenses unless the various disputes, prospective complaints, and appeals are settled and terminated between them at this time, and each desires to resolve all claims, disputes, and issues between them concerning issues arising out of and/or relating to the above actions and subject incident referenced above. Page 1 of 7 G. WHEREAS, each Agreeing Party disputes each and every claim and allegation asserted by the other in the above actions, and contend that the other Agreeing Party is not entitled to any damages or recovery from them whatsoever. Liability is expressly denied by the Agreeing Parties with respect to the allegations asserted against them. H. WHEREAS, released in this Agreement are any and all past and present claims, demands, obligations, and/or causes of action for compensatory or punitive damages, injuries, costs, losses, expenses, attorneys' fees, investigative expenses, whether based on tort, contract or other legal equitable theories of recovery, against the Agreeing Parties, including their respective representatives, predecessors, and successors in interest, heirs, assigns, and their past and present principals, officers, directors, shareholders, servants, members, partners, subsidiaries, affiliated companies, agents, independent contractors, employees, employers, assignees, devisees, attorneys, and insurers arising from the subject listed in the above referenced action. Agreeing Parties agree that this compromise and settlement shall constitute a bar to all such claims, demands, obligations, or causes of action, potential or otherwise, except as specifically outlined in the Reservation of Rights section of this Agreement. I. WHEREAS, it is the intent of the Agreeing Parties to fully and finally resolve any and all claims (known or unknown, suspected or unsuspected) arising out of, from or in any way related to the subjects listed in the above referenced actions, except as specifically outlined in the Reservation of Rights section of this Agreement. II. REPRESENTATIONS OF THE PARTIES The Agreeing Parties represent as follows: A. That each expressly has the authority to execute this Agreement, and that this Agreement as so executed shall be binding upon its successors and assigns; and B. That the representation set forth above shall endure forever and shall survive the execution of this Agreement and the settlement and dismissals of the subjects in the above referenced actions. III. AGREEMENT AND RELEASE NOW, THEREFORE, in consideration of the foregoing, the following respective provisions, promises, and covenants, the Agreeing Parties hereto agree and release as follows: Page 2 of 7 A. Terms of Settlement: The Parties hereby agrees as follows: 1. Officer JORGE ARROYO shall be reinstated to his position as police officer with the Santa Ana Police Department, forthwith, with no loss of benefits or seniority other than listed below. ARROYO shall be paid for all back pay and benefits from the date of his termination to the date of his reinstatement, but without interest. The payment shall be a lump sum payment with no taxes taken out (City may 1099 the amount). ARROYO shall accept as the discipline in this matter the Deputy Chief's and Police Commander's recommendation for a suspension and return patrol and that established by the recommendation in Chief Rajas' first Notice of Intent (to wit, a 240 hour suspension). He shall withdraw his Personnel Board appeal. The monetary value of the suspension shall be deducted from the back pay payment; 2.. After ARROYO is reinstated, he agrees to meet with the Acting City Manager Mouet. Said meeting shall not involve the discussions of the merits of the disciplinary case; 3. The City and the Santa Ana Police Officers Association shall come to a mutually agreeable statement/press release regarding the Police Department taking disciplinary action, ARROYO accepting responsibility for his actions, and all involved look forward to moving on and serving the community; 4. ARROYO shall withdraw from and dismiss his claims with prejudice in the litigation entitled Santa Ana Police Officers Association, et al. v. City of Santa Ana, et al., Orange County Superior Court Case No. 30-2015-00801604-CU-OE-CJC and California Court of Appeal Case No. G053126, and ARROYO shall dismiss his appeal. C. RELEASE in exchange for the above agreement, except for any rights or obligations created by this Agreement, each Agreeing Party for itself, its shareholders, assigns, successors in interest, agents, employees, partners, attorneys, executors, insurers, lienholders, administrators, and representatives (collectively "Releasing Parties") hereby releases, holds harmless, acquits and forever discharges each other Agreeing Party, its insurer, its respective assigns, heirs, executors, administrators, successors, agents, owners, independent contractors, businesses, corporations, partnerships, consultants, employees, managers, attorneys, insurers, employees, maintenance personnel, principals, and affiliates ("Released Parties"), from any and all claims, demands and/or causes of action asserted or which could have been asserted in the above referenced action or in anyway arise out of the subject incident, including but not limited to, any and all claims arising out of or from demands, actions, liens, causes of action, injuries, damages, losses, expenses, costs, attorneys' fees, expert fees, and/or other claims whatsoever based in law, tort, or in equity, which Releasing Parties may have against the Released Parties, known or unknown, suspected or Page 3 of 7 unsuspected, existing or not existing. This release includes all issues pertaining to any and all acts, omissions, nonfeasance and misfeasance of the Released Parties, if any, arising out of, from or in any way relating to the subject Actions and/or the subject incident; except as specifically outlined in the Reservation of Rights section of this Agreement. D. CIVIL. CODE § 1542 WAIVER: Agreeing Parties acknowledge and understand that the Releases in this Agreement extend to all claims of any nature and kind, known and unknown, suspected or unsuspected, anticipated or unanticipated, arising from the above referenced actions and the subject matter of the investigation, discipline, litigation, and/or appeals, except as specifically outlined in the Reservation of Rights section of this Agreement. Agreeing Parties acknowledge and understand that there is a risk that now or subsequent to the execution of this Agreement, it may have claims arising out of or related to the Action or the subject incident set forth above which are unknown and unanticipated at the time this Agreement is signed, and that any claims as are known or should be known may become more serious than they now expect or anticipate. Other than the obligations referenced herein, Agreeing Parties WAIVE ALL RIGHTS they may have in such unknown and unexpected consequences or results. Further, each party acknowledges that they have been informed by their respective attorneys of record, or had the opportunity to seek the advice of independent counsel, and that they are familiar with Civil Code § 1542, which provides as follows: 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. E.eservation of Rights: The CITY contends that ARROYO may be subjected to further punitive action, after further pre and post -disciplinary due process, should he be convicted of theft in the pending criminal proceeding. Each of the Agreeing Parties reserve their rights and positions regarding the employer's ability, or lack thereof, to discipline officers further should they be convicted of theft. Neither party is waiving its position by entering into this settlement and each party is specifically reserving his/her/its rights in this regard. F. Maintenance of Records: The CITY OF SANTA ANA, its agents, representatives and attorneys may maintain the internal affairs investigation and disciplinary file consistent with its record retention policy for public records, established procedures and any court order. Thereafter, the CITY OF SANTA ANA, its agents, representatives and attorneys shall immediately purge the internal affairs and discipline records concerning ARROYO and the subject matter of the incident giving rise to the above reference actions. Page 4 of 7 G. Approval and Contingency: The terms of this Agreement are subject to approval by the City of Santa Ana , H. Cost/Fees: All Agreeing Parties to this Agreement and Release shall bear their own attorneys' fees and costs, in all actions. IV. WARRANTIES AND ACKNOWLEDGMENTS A. Code of Civil Procedure M 664.6 &-664.7: The Agreeing Parties do hereby agree that each has the right to enforce this Agreement, or any provision thereof, by filing any appropriate motion or proceeding, including, without limitation, a motion pursuant to Code of Civil Procedure §§ 664.6 & 664.7, in the appropriate law and motion department of the Orange County Superior Court where the Action is venued. The Agreeing Parties further agree, acknowledge and stipulate that the Court in the above referenced actions shall retain jurisdiction over the Agreeing Parties to determine any motion brought pursuant to Code of Civil Procedure §§ 664.6 & 664.7. B. No Admissions: This Agreement is made as part of the compromise and settlement of disputed claims, and no action taken by Agreeing Parties, either previously or in connection with this compromise and settlement, shall be deemed or construed to be an admission by Agreeing Parties of any fault or liability whatsoever in connection with any matter or thing. Nothing contained in or referred to in this Agreement shall be deemed to constitute an admission of liability nor responsibility, and it is recognized that this Agreement and the promises, covenants and conditions set forth herein as entered into by the parties hereto are for the purpose of avoiding the time and expense of continued litigation. Liability and responsibility are expressly denied. C. No Prior Assignments: The Agreeing Parties represents and warrants that she/helitlthey is/are the sole owner of the claims released and that such claims have not been expressly or impliedly assigned, transferred, and/or subrogated to any other person or entity. D. Adequate Inquiry: Each Party to the Agreement represents and warrants that prior to executing the Agreement, he/she/it/they has/have made such inquiries, consulted such persons, and reviewed such documents as it deemed appropriate to enter into this Agreement and to consummate the transactions contemplated herein. Each Party to the Agreement further represents and warrants that shelhelit/they have had adequate time, as provided under the law, to consider this agreement. E. Consultation With Counsel: Each Party acknowledges that he/it has been represented by counsel and has received independent legal advice regarding the negotiation and execution of the Agreement. Each Party agrees that any rule of interpretation or construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation, construction or Page 5 of 7 enforcement of the Agreement. F. Interpretation: The interpretation, construction, and performance of this Agreement, and the rights and remedies of the Parties hereunder, shall be governed by the provisions of the laws of the State of California, without regard to principles of conflicts of laws. G. No Admission of Liabilit : Nothing in the Agreement or any negotiations or proceedings in connection therewith shall constitute or be deemed or claimed to be evidence of an admission of any liability by any Party, or of the merit or lack of merit of any claim or defense of any Party. All communications (whether oral or in writing) between and/or among the Parties, their counsel and/or their respective representatives relating to, concerning or in connection with this Agreement, or the matters covered herein, shall be governed and protected in accordance with Rule of Evidence regarding settlement discussions/negotiations to the fullest extent permitted by law. H. Prevailing Party Fees: Each of the Parties shall bear their own costs associated with the negotiation, implementation and enforcement of this Agreement, provided, however, that in the event that the any party hereto brings an action to enforce this Agreement, then the prevailing Party in any such enforcement action shall be entitled to seek reasonable attorney's fees and related costs; provided further, however, that if a party brings an enforcement action, it shall not be entitled to prevailing party attorney's fees unless it gave the other party 30 -days prior written notice of its intent to bring the action and an opportunity to cure during that 30 -day notice period before bringing the action. I. Full Agreement: This Agreement sets forth the entire agreement between the Parties regarding the subject matter covered herein, and supersedes any and all prior oral or written communications between the Parties regarding the subject matter covered herein. The Agreement may not be modified or amended except in writing signed by each Party. J. Counterparts: This Agreement shall be effective only after all parties have signed the Agreement in the spaces provided below. This Agreement may be executed in multiple counterpart copies, each of which shall be deemed an original. Facsimile or electronic signatures can serve as original signatures. [CONTINUED ON NEXT PAGE] Page 6 of 7 CAUTION: READ ENTIRE DOCUMENT BEFORE SIGNING BELOW. I HAVE READ THE ENTIRE DOCUMENT AND AGREE TO ITS CONTENTS Date—:.' - 7 Date By�fwlqw �,(h�,rwlmvw Approved as to form and content: Dated � By �- Approved as t f rm and content: N-2017-026 Attest: City Clerk: City of Si0a Ana City Manager, City f Santa Aria ,t�,r 9ttrn toey for City o `Santa Arca Page 7 of 7