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HomeMy WebLinkAboutNASSER RIZK!NSSURANCE NOT REQUIRED VVORK NlAY PROCEED N CL-ERK OF COUNCIL 0 N � •T N-2020-166 o ACKNOWLEDGEMENT, SETTLEMENT AND RELEASE AGREEMENT 0' }tg nAnot h sAcknowledgement, Settlement and Release Agreement ("Agreement") is entered into on September 2020 ("Effective Date") between the City of Santa Ana, a California Municipal Corporation ("City") and Nasser Rizk ("Releasor") (referred to collectively as "The Parties"). RECITALS WHEREAS, the Releasor, is an employee of City and also a member of the bargaining unit SEIU; and WHEREAS, on March 16, 2020, Releasor submitted a request for classification review pursuant to Section 4.13 of the Memorandum of Understanding ("MOU") between the City and SEIU; and WHEREAS, the City conducted a classification review pursuant to Section 4.13 of the MOU; and WHEREAS, the Parties determined that a settlement would be in the best interest of both City and Releasor; and WHEREAS, the City and Releasor enter into this Agreement to preclude any and all claims and/or potential for litigation resulting from the allegations set forth in or discovered as a result of the request for and subsequent classification review; and ACCORDINGLY, for full and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following: TERMS AND CONDITIONS 1. Settlement Payment. The Parties agree that City will pay to Releasor the sum of twenty-one thousand dollars and zero cents ($21,000.00) in the form of a check made payable to Releasor within thirty (30) calendar days of the date the Agreement is fully executed ("Settlement Payment"). Said Settlement Payment shall be reported on form 1099-MISC as required by law. Releasor understands and acknowledges that, Settlement Payment is not compensation earnable as that term is defined by the Public Employees' Retirement Law, California Code of Regulations, California Public Employees' Pension Reform Act of 2013, and the California Public Employees Retirement System. 2. Potential Tax Liability. Releasor acknowledges that City has made no representations regarding the tax implications, liabilities, or lack of liability of Settlement Payment. Releasor understands that he is solely liable for any tax payment required by or resulting from Settlement Payment. Releasor agrees to indemnify and hold harmless City from any claim regarding tax due or payable as a result of Settlement Payment. 3. No Right to Legal Proceedings. Releasor understands and agrees that, as a condition of this Agreement and notwithstanding any City personnel policy or term or provision in an agreement or memorandum of understanding between the City and an employee organization, Releasor shall not institute or join any action, lawsuit, administrative action, claim, or proceeding against the City and/or its Agents, its subsidiaries or related entities, or any successor, for any claims associated with or stemming from this request for classification review. 4. Dismissal of Proceedings. Promptly upon execution of this Agreement, Releasor shall dismiss in their entirety and with prejudice any and all lawsuits, administrative proceedings, complaints, claims, charges, and other actions against City involving the allegations in Releasor's request for classification review or any information discovered as a result of said classification review. 5. Release. In exchange for receipt of the Settlement Payment, Releasor and his representatives, heirs, successors, and assigns do hereby completely release and forever discharge the City and its subsidiaries or related entities, or any successor, and their present and former officers, directors, council members, agents, employees, attorneys, successors, and assigns (collectively, "Released Parties") from all claims, rights, demands, actions, obligations, liabilities, and causes of action of every kind and character, known or unknown, mature or unmatured, which Releasor may have now or in the future arising from any act or omission or condition occurring on or prior to the Effective Date (including, without limitation, the future effects of such acts, omissions, or conditions), whether based on tort, contract (express or implied), or any federal, state, or local law, statute, or regulation (collectively, the "Released Claims"). By way of example and not in limitation of the foregoing, Released Claims shall include any claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the California Fair Employment and Housing Act ("FEHA"), Federal Fair Labor Standards Act ("FLSA") as well as any claims asserting harassment, breach of contract, breach of the covenant of good faith and fair dealing, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, defamation, invasion of privacy, and claims related to disability. Released Claims shall also include, but not be limited to, claims for wages or other compensation due, overtime, bonuses, sick leave, vacation pay, life or health insurance, or any other fringe benefit. Releasor likewise releases the Released Parties from any and all obligations for attorneys' fees incurred in regard to the above claims or otherwise. Releasor acknowledges that he has received all wages, vacation, and other compensation earned pursuant to the term of his employment. Releasor also acknowledged that upon payment of the Settlement Payment, he is entitled to no other payment or compensation of any kind arising from this Settlement Agreement or any Released Claims. Notwithstanding the foregoing, Released Claims shall not include any claims based on obligations created by or reaffirmed in this Agreement. 2 6. Section 1542 Waiver. The parties understand and agree that the Released Claims include not only claims presently known to Releasor, but also include all unknown or unanticipated claims, rights, demands, actions, obligations, liabilities, and causes of action of any kind that would otherwise come within the scope of the Released Claims as described in Section 5. Releasor understands that he may hereafter discover facts different from what he now believes to be true, which if known, could have materially affected this Agreement, but he nevertheless waives any claims or rights based on different or additional facts. Releasor knowingly and voluntarily waives any and all rights or benefits that he may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides as follows: 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 HIS SETTLEMENT WITH THE DEBTOR. By initially below, the Releasor acknowledges that he has read and understands Section 6 and that he voluntarily and knowingly is waiving his right under Section 1542 to pursue unknown or unanticipated claims, rights, demands, action obligations, liabilities and causes of action of any kind. Initials of Releasor 7. Compliance with OWBPA. Releasor, being 40 years of age or older, is advised of and acknowledges the following: A. Twenty -One Day Consideration Period. Releasor shall have up to 21 days to consider and accept the terms of this Agreement by fully executing it below, and returning it to the Executive Director of Human Resources, at the following address: 20 Civic Center Plaza, M-34, Santa Ana, CA 92701. During this 21-day period and before signing this Agreement, Releasor is encouraged to consult with Releasor's attorney regarding the terms and provisions of this Agreement, at Releasor's own expense. Releasor may sign the Agreement prior to the conclusion of the 21-day period. B. Release of Age Discrimination in Employment Act Claims. By signing this Agreement, which provides consideration in addition to anything of value to which Releasor already is entitled, Releasor waives any claims Releasor has or might have against Releasor under the Age Discrimination in Employment Act (ADEA) that accrued prior to the date of Releasor's execution of the Agreement, but Releasor 3 does not waive any rights or claims that may arise after the date that Releasor signs the Agreement. C. Revocation Period. Releasor shall have seven calendar days from the date Releasor signs this Agreement to revoke the Agreement by notifying City in writing prior to the expiration of the seven -calendar day period. Any revocation within this period must state "I hereby revoke my acceptance of our Agreement and General Release." The written revocation must be postmarked within seven calendar days of Releasor's execution of this Agreement. This Agreement shall not become effective or enforceable until the revocation period has expired. If the last day of the revocation period is a Saturday, Sunday, or legal holiday, then the revocation period shall not expire until the next following day that is not a Saturday, Sunday, or legal holiday. RELEASOR IS HEREBY ADVISED THAT RELEASOR HAS UP TO 21 CALENDAR DAYS TO REVIEW AND CONSIDER THIS AGREEMENT AND IS HEREBY ADVISED IN WRITING TO CONSULT AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT. RELEASOR AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL 21 CALENDAR DAY CONSIDERATION PERIOD. HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL ITS PROMISES, AND TO RECEIVE THE SUMS IN PARAGRAPH Errorl Reference source not found. ABOVE, RELESOR FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION (HAVING BEEN ADVISED TO CONSULT WITH AN ATTORNEY), ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE, AND RELEASE ALL CLAIMS RELEASOR HAS OR MIGHT HAVE AGAINST RELEASEES. 8. Covenant Not to Sue. Releasor shall not sue or initiate against any Released Party any compliance review, action, or proceeding, individually or as a member of a class, under any contract (express or implied), or any federal, state, or local law, statute, or regulation pertaining in any manner to the Released Claims. 9. Non -admission. The parties understand and agree that this Agreement is a compromise settlement of disputed claims and that the furnishing of the consideration for this Agreement shall not be deemed or construed at any time or for any purpose as an admission of liability by City or by Releasor. The liability for any and all claims is expressly denied by City and by Releasor. % Confidentiality. The parties understand and agree that this Agreement and each of its terms, and the negotiations surrounding it, are confidential and shall not be disclosed by Releasor, or any officer or manager of City, to any entity or person, for any reason, at any time, without the prior written consent of the other party, unless required by law. If disclosure of this Agreement or its terms is required by law, whether through subpoena, request for production, deposition, public records act request 111 or otherwise, the disclosing party promptly shall provide written notice to other party prior to the disclosure so as to provide the other party an opportunity to move to quash or otherwise to oppose the disclosure. Notwithstanding the foregoing, Releasor may disclose the terms of this Agreement to his spouse or registered domestic partner, and for legitimate business reasons, to legal, financial, and tax advisors. City may, nonetheless, disclose the terms of this Agreement pursuant to a lawful request under the Public Records Act or other applicable law and for legitimate business reasons to its officers, employees, and legal, financial, and tax advisors. 11. Notices. Any notice or other communication under this Agreement must be in writing and shall be effective upon delivery by hand or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to City or to Releasor at the corresponding address below. Releasor shall be obligated to notify City in writing of any change in his address. Notice of change of address shall be effective only when done in accordance with this Section. To City: Executive Director of Human Resources City of Santa Ana 20 Civic Center Drive, M-34 P.O. Box 1988 Santa Ana, California 92702 With a copy to: City Attorney City of Santa Ana 20 Civic Center Drive, M-29 P.O. Box 1988 Santa Ana, California 92702 Fax (714) 647-6515 To Releasor: Nasser Rizk [Address on file -confidential] Email: TJL rl2k A sgo!a +ate • co 12. Integration. The parties understand and agree that the preceding Sections recite the sole consideration for this Agreement; that no representation or promise has been made by Releasor, City, or any other Released Party on any subject whatsoever, except as expressly set forth in this Agreement; and that all agreements and understandings between the parties on any subject whatsoever are embodied and expressed in this Agreement. This Agreement shall supersede all prior or contemporaneous agreements and understandings among Releasor, City, and any other Released Party, whether written or oral, express or implied, with respect to any subject whatsoever, including without limitation, any employment -related agreement or benefit 5 plan, except to the extent that the provisions of any such agreement or plan have been expressly referred to in this Agreement as having continued effect. 13. Amendments; Waivers. This Agreement may not be amended except by an instrument in writing, signed by each of the parties. No failure to exercise and no delay in exercising any right, remedy, or power underthis Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity. 14. Assignment; Successors and Assigns. Releasor agrees that he will not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any rights or obligations under this Agreement. Any such purported assignment, transfer, or delegation shall be null and void. Releasor represents that he has not previously assigned or transferred any claims or rights released by him pursuant to this Agreement. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, successors, attorneys, and permitted assigns. This Agreement shall also inure to the benefit of any Released Party. This Agreement shall not benefit any other person or entity except as specifically enumerated in this Agreement. 15. Severability. If any provision of this Agreement, or its application to any person, place, or circumstance, is held by an arbitrator or a court of competent jurisdiction to be8, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect. 16. Attorneys' Fees. In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs. 17. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of California with venue being in Orange County, California. 18. Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. 19. Representation by Counsel. The parties acknowledge that (1) they have had the opportunity to consult counsel in regard to this Agreement; (ii) they have read and understand the Agreement and they are fully aware of its legal effect; and (iii) they are entering into this Agreement knowingly and voluntarily, and based on each on N-2020-166 party's own judgment and not on any representations or promises made by the other party, other than those contained in this Agreement. 20. Signed in Counterparts. The Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, with the same effect as if all Parties had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument. The parties have duly executed this Acknowledgement, Settlement and Release Agreement as of the Effective Date. CITY OF SANTA ANA Kristine Ridge /,FZCity Manager RELEASOR/E Rizk APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By a LJiQ�2 Laura A. Rossini Acting Chief Assistant City Attorney RECOM ENDED FO PPROVAL: Steven Pham Executivg Director of Human Resourc ATTEST: �.f Daisy Gomez Clerk of Council 7