Loading...
CONTRACT 6779 Settlement AgreementAgreement No. 6779 SETTLEMENT AGREEMENT AND GLNEIIAL RELEASE OF A.L.I., CLAIMS This Settlement Agreement and General Release ("Agreement") is entered into between the CITY OF EL SEGUNDO ("CITY" or "EMPLOYER"), its past or present council members, directors, governing body, employees, agents, predecessors, attorneys, divisions, departments, representatives, insurers, successors in interest and assigns, and all persons acting by, through, under or in concert with any of them (collectively the "CITY OF EL SEGUNDO"), on the one hand, and RICK TOWNE ("TOWNE" OR "PLAINTIFF") on the other. CITY and RICK TOWNE are collectively referred to as the "Parties" or individually as a "Party" with reference to the following: A. TOWNE was employed by the CITY as a Fire Fighter/Paramedic and retired effective December 19, 2020; B. On or about May 20, 2021, TOWNE filed a lawsuit against the CITY, the former Fire Chief Chris Donovan, and the former Fire Chief Deena Lee in Los Angeles County Superior Court, Case No. 21STCV19113 (hereinafter "Lawsuit"), alleging: (1) Age Discrimination in Violation of Government Code § 12940(a) (against the CITY only); (2) Physical Disability Discrimination in Violation of Government Code § 12940(a) (against the CITY only); (3) Failure to Accommodate Physical Disability in Violation of Government Code § 12940(m)(1) (against the CITY only); (4) Harassment Based on Age in Violation of Government Code § 129400)(1) (against all Defendants); (5) Harassment Based on Physical Disability in Violation of Government Code § 129400)(1) (against all Defendants); and (6) Retaliation for Requesting Accommodation of a Physical Disability in Violation of Government Code § 12940(m)(2) (against the CITY only) seeking various types of damages, attorney's fees and costs, interest and any other relief the court might deem proper; C. On August 30, 2021, Defendants filed an Answer to TOWNE'S Lawsuit denying all material allegations and asserting a number of affirmative defenses; D. On August 4, 2022, Defendants filed a Motion for Judgment on the Pleadings, and on August 30, 2022, the Superior Court granted the Motion as to the First, Fourth, and Fifth Causes of Action without leave to amend effectively dismissing Donovan and Lee from the Lawsuit; E. On December 22, 2022, the CITY filed a Motion for Summary Judgment or, in the Alternative, Summary adjudication. As of the Effective Date of this Agreement, the ruling on this Motion remains outstanding and moot based on the settlement in principle reached by the Parties on May 31, 2023, at the Mandatory Settlement Conference; F. The CITY categorically denies any and all of the claims and allegations asserted by TOWNE against the CITY but has been forced or may be forced to incur significant fees and costs as a result of TOWNE'S Lawsuit and wishes to avoid incurring any additional litigation expenses; 12099669.1 EL140-130 Agreement No. 6779 NOW THEREFORE, and in consideration for the promises contained herein, and other good and valuable consideration, receipt of which is acknowledged by the execution of this Agreement, and to avoid unnecessary litigation, it is agreed by and between the Parties as follows: I. WAIVER AND RELEASE A. No Admission of Liability. This Agreement and compliance with this Agreement shall not in any way be construed as an admission by the CITY or TOWNE of the truth of any allegations, or an admission of any unlawful acts or other liability whatsoever against each other or against any other person or entity. The CITY and TOWNE specifically disclaim any liability to, against each other, or against any other person or entity, on the part of themselves, any related person or any related predecessor corporation or its or their agents, representatives or successors in interest and assigns. This Agreement cannot be used by a Party or any other person to demonstrate any admission of liability or wrongdoing by another Party. B. Release of Claims. As consideration for the payments and agreements that make up this Agreement, TOWNE hereby irrevocably and unconditionally waives, releases and forever discharges the CITY from any and all claims he may have. Such claims include but are not limited to: 1. Any and all charges, complaints, lawsuits, claims, liabilities, claims for relief, claims for punitive damages, obligations, promises, agreements, contracts, interests, controversies, injuries, damages, actions, causes of action, suits, rights, demands, costs, losses, debts, liens, judgments, indebtedness, and expenses (including attorney's fees and costs actually incurred), of any nature whatsoever, whether in law or in equity, known or unknown, suspected or unsuspected, actual or potential, which TOWNE now has, owns, or holds, or claims to have, owns, at common law or under any statute, rule, regulation, order or law, whether federal, state, or local, or on any grounds whatsoever, with respect to any act, omission, event, matter, claim, damage, loss, or injury arising out of TOWNE'S employment with the CITY (except for any claims that TOWNE may have under the Workers' Compensation Act) and/or with respect to any other claim, matter, or event arising prior to execution of this Agreement by the Parties, including, but not limited to the following (collectively referred to as "Released Claims"): a) The California Fair Employment and Housing Act (California Government Code § 12940, et seq.), the California Family Rights Act (California Government Code § 12945.2, 19702.3, et seq.), California Government Code § 11135, the Unruh and George Civil Rights Acts (California Civil Code § 51, et seq.), the California Labor Code, including, but not limited to, Labor Code section 1194 and any related Wage Orders or similar directives/authorities issued by any state authority having enforcement powers, the Fair Labor Standards Act and any related regulations, interpretive bulletins or similar directives/authorities issued by any Federal authority having enforcement powers; b) The Constitution of the United States, the Constitution of the State of California, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.), the Equal Pay Act (29 U.S.C. § 206(d)), the Rehabilitation Act of 1973 (29 U.S.C. § 793, et seq.), the Family and Medical Leave Act (29 U.S.C. § 2901, et seq.), the Employee Retirement Income Security Act of 2 12099669.1 EL140-130 Agreement No. 6779 1974, also known as "ERISA" (29 U.S.C. § 1001, et seq.), and/or Sections 1981, 1983, 1985, 1986 or 1988 of Title 42 of the United States Code (42 U.S.C. § 1981, et seq.), the Americans with Disabilities Act (42 U.S.C. § 12101, et seq.); c) Claims of Retaliation under any theory whatsoever whether they were alleged in TOWNE'S Lawsuit or not, including claims under 42 U.S.C. section 1983, the Meyers-Milias-Brown Act ("MMBA"), claims of "whistle -blowing" under California Labor Code section 1102.5 or any other statute, claims for breach of any type of contract, including written, oral or implied contracts, breach of any covenant, promise, or representation pertaining to TOWNE'S employment, whether express or implied, claims for negligent hiring, retention, supervision, investigation, wrongful termination, discrimination of any type, interference with economic relations, failure to pay wages and/or benefits of any kind, fraud and/or misrepresentation of any kind, negligent or intentional infliction of emotional distress, slander, assault, battery, and/or any other claims arising under any other state or federal provision, act, ordinance, Constitution, law, common law, or arising under any contract or agreement, against the CITY. 2. This Agreement does not limit TOWNE'S ability to bring an administrative charge with an administrative agency, but TOWNE expressly waives and releases any right to recover any type of personal relief from the CITY, including monetary damages or reinstatement, in any administrative action or proceeding, whether state or federal, and whether brought by TOWNE or on TOWNE'S behalf by an administrative agency, related in any way to the matters released herein. Furthermore, nothing in this Agreement prohibits TOWNE from reporting possible violations of law or regulation to any government agency or entity, including but not limited to the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, the Department of Labor and/or the Department of Justice, or making other disclosures that are protected under the whistleblower provisions of law. TOWNE does not need prior authorization of the CITY to make any such reports or disclosures and is not required to notify the CITY that he has made such reports or disclosures. C. Civil Code Section 1542 Waiver. The Parties each hereby waive any and all rights that they may have pursuant to California Civil Code section 1542, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. The Parties hereby expressly waive the provisions of California Civil Code section 1542 and further expressly waive any right to invoke said provisions now or at any time in the future. 2. The Parties recognize and acknowledge that factors which have induced each of them to enter into this Agreement may turn out to be incorrect or to be different from what they had previously anticipated, and they hereby 12099669.1 EL140-130 Agreement No. 6779 expressly assume any and all of the risks thereof and further expressly assumes the risks of waiving the rights provided by California Civil Code section 1542. D. Release of All Claims Pursuant to Any MOU. TOWNE hereby expressly waives any and all claims now and forever that he had as a Fire Fighter/Paramedic pursuant to the Memorandum of Understanding between the CITY and the EL SEGUNDO FIREFIGHTERS' ASSOCIATION (the "MOU"), covering the years October 1, 2018 through September 30, 2021, or any other MOUs between the CITY OF EL SEGUNDO and the EL SEGUNDO FIREFIGHTERS' ASSOCIATION or any other labor group that TOWNE may claim to be a beneficiary of, through the Effective Date of this Agreement, except that this waiver does not extend to claims related to rights or benefits which TOWNE may have in the future as a retired City employee and as guaranteed to him under the applicable MOU. The waiver contemplated by this paragraph is expressly limited to claims, rights, and/or benefits that TOWNE had accrued and/or vested as of the Effective Date of this Agreement. E. A e Discrimination in :Ein to meant Act Waiver and release. The Age Discrimination in Employment Act of 1967 ("ADEA") makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the nature and privileges of an individual's employment on the basis that the individual is age forty or older. The Older Workers Benefit Protection Act ("OWBPA"), 29 USC. § § 626, et. seq. further augments the ADEA and prohibits the waiver of any right or claim under the ADEA unless the waiver is knowing and voluntary. By entering into this Agreement, TOWNE acknowledges that he is knowingly and voluntarily, for just compensation in addition to anything of value to which TOWNE is already entitled, waiving and releasing any rights he may have under the ADEA and/or OWBPA. TOWNE further acknowledges that he has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: This waiver/release is written in a manner understood by TOWNE. 2. TOWNE is aware of and has been advised of his rights under the ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he currently may have under the ADEA, OWBPA, or similar age discrimination laws. 3. TOWNE is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this Agreement, and the waiver and release of any rights he may have under the ADEA, the OWBPA, or similar age discrimination laws, but he may, in the exercise of his own discretion, sign or reject this Agreement at any time before the expiration of the twenty- one (21) days. 4. The waivers and releases set forth in this Agreement shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the date this Agreement takes effect. 4 12099669.1 EL140-130 Agreement No. 6779 TOWNE was advised and by this Agreement is advised in writing to that he should consult with an attorney prior to executing this Agreement. TOWNE has had an opportunity to discuss this waiver and release with, and to be advised regarding this Agreement, by an attorney of his choice, and does not need any additional time within which to review and consider this Agreement. 6.. TOWNE has seven (7) days following his execution of this Agreement to revoke the Agreement by submitting a written revocation addressed to and received by Liebert Cassidy Whitmore, 6033 West Century Blvd., 5ch Floor, Los Angeles, CA 90045, Attn: Joung H. Yim. 7. TOWNE knowingly and voluntarily agrees to all of the terms set forth in this Agreement and knowingly and voluntarily intends to be bound by those terms. TOWNE ACKNOWLEDGES BY HIS SIGNATURE TO THIS AGREEMENT THAT HE FULLY UNDERSTANDS HIS RIGHT TO DISCUSS THIS WAIVER WITH LEGAL COUNSEL, AND HAS CAREFULLY READ AND FULLY UNDERSTANDS THE WAIVER, AND THAT HE IS VOLUNTARILY AGREEING TO WAIVE ANY CLAIMS THAT HE HAS OR MAY HAVE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE OLDER WORKERS BENEFIT PROTECTION ACT, AND ANY OTHER LAWS PROHIBITING AGE DISCRIMINATION IN EMPLOYMENT ARISING FROM OR RELATED OR ATTRIBUTABLE TO THE PARTIES' ALLEGATIONS OR CLAIMS. F. Workers' Compensation Claims. Notwithstanding the foregoing releases, this Settlement agreement does not release any Workers' Compensation claims or rights that TOWNE has or might have. Any and all Workers' Compensation rights will and do survive any release in this Agreement including the Parties' waiver of Civil Code section 1542. G. Effective Date. The Effective Date of this Agreement shall be the last date on which all of the following occurs: all Parties, as opposed to their counsel, have signed this Agreement. H. Representation of No Pending Claims. With the exception of any Workers' Compensation claims or actions, TOWNE represents that, other than the claims described herein, he has not filed any lawsuits, complaints, appeals, claims, applications or charges against the CITY or any related persons or against any of its or their past or present officers, directors, governing bodies, elected officials, employees, agents, predecessors, attorneys, divisions, affiliates, representatives, successors in interest and assigns and/or all persons acting by, through, under, or in concert with any of them, with any state or federal court, or local, state or federal agency, or administrative or quasi -administrative tribunal or person, based on any events occurring on or prior to the date of execution of this Agreement. 5 12099669.1 EL140-130 Agreement No. 6779 II. PAYMENT AND DISMISSAL The parties agree that upon the Effective Date of this Agreement, the parties shall perform the following acts: A. The CITY shall pay TOWNE'S legal counsel, Lipeles Law Group, APC, the sum of TEN THOUSAND dollars ($10,000.00) (the "Settlement Proceeds") as damages for alleged injuries, and all attorney's fees and costs incurred in prosecuting the Lawsuit filed on TOWNE'S behalf. This $10,000.00 sum shall be reported to the IRS on an IRS Form 1099 as required by law, and the Lipeles Law Group, APC, shall submit a Form W-9 to the CITY, through its counsel of record in TOWNE'S Lawsuit, as a condition precedent to receiving the Settlement Proceeds. The payment of the Settlement Proceeds shall be made within 30 days of all of the following have occurred: TOWNE has executed this Agreement and the CITY Manager has executed this Agreement. B. Within seven (7) days of receiving the Settlement Proceeds, TOWNE'S counsel shall file a properly completed and executed Request for Dismissal with Prejudice of the Lawsuit. TOWNE agrees to fully comply with applicable state laws, the California Rules of Court, and the Los Angeles Superior Local Rules pertaining to the dismissal of the Lawsuit with prejudice. III. GENERAL PROVISIONS A. City Council Approval. The Parties understand and agree that this Agreement is contingent upon approval by the City of El Segundo City Council, and will not become effective and enforceable unless and until the Council approves the Agreement. B. No Representation of Tag Liabilities. No Parry, including the attorneys for any Parry, has made any representations or warranties regarding whether the Settlement Proceeds are subject to taxation. The CITY does not bear any responsibility for tax liability that may arise as a result of the Settlement Proceeds. TOWNE agrees to assume any responsibility for payment of taxes for any of the Settlement Proceeds. TOWNE agrees to indemnify and hold the CITY of EL SEGUNDO harmless from any and all tax liability which may become due as a result of the Settlement Proceeds under this Agreement. TOWNE agrees to be liable for indemnifying and holding the CITY, its agents, attorneys and assigns, harmless from any and all tax liability which may become due as a result of the Settlement Proceeds under this Agreement and/or for any liability that may be incurred as a result of any dispute over payment of the Settlement Proceeds arising between TOWNE and his legal counsel, Lipeles Law Group, APC. C. Each Party to Bear Own Fees and Costs. Aside from what is specifically provided for in this Agreement, each Party shall bear their own costs, expenses and attorney's fees incurred in connection with the proceedings and/or events resulting in and/or preceding this Agreement, or in connection with any other claims made or investigated by either Party against the other in any forum (civil, criminal, administrative or quasi -administrative), and each of the Parties hereto expressly waives any claim for recovery of any such costs, expenses or attorney's fees from the other Party. Attorneys for all Parties to this Agreement do likewise expressly 6 12099669.1 EL140-130 Agreement No. 6779 waive any claim for recovery of costs, expenses and/or attorney's fees from the opposing Party(ies). Neither Party shall be deemed a "prevailing party" by virtue of executing this Agreement. D. No Prior Assignments. TMNE represents that he has not assigned or transferred, or purported to assign or transfer, to any person or entity, any claim or any portion thereof or interest therein against the CITY. E. Enforcement. This Agreement is made and entered into in the State of California, and shall be governed, interpreted, and enforced under the laws of the State of California. The Parties agree that jurisdiction and/or venue of any action involving the validity, interpretation, or enforcement of this Agreement or any of its terms, provisions, or obligations, or claiming breach thereof, shall exist exclusively in a court located within the County of Los Angeles, State of California. The Parties further agree that this Agreement may be used as evidence in any subsequent proceeding in which any of the Parties allege a breach of this Agreement or seek to enforce its terms, conditions, provisions, or obligations. F. Covenant to Effectuate Agreement. Each Party hereto agrees to do all things and execute and deliver all instruments and documents necessary to fulfill and effect the provisions of this Agreement and to protect the respective rights of the Parties to this Agreement. G. Covenant Not to Sue. To the extent permitted by applicable law, TMNE promises not to file any lawsuits in any court, or any demand for arbitration, against the CITY OF EL SEGUNDO as it relates to any Released Claims. H. Waiver of Terms of Agreement. 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 hereof. No waiver shall be binding unless in writing and signed by the Party to be charged or held bound. It is further understood and agreed that if, at any time, a breach of any term of this Agreement is asserted by any Party hereto, that Party shall have the right to seek specific performance of that term and/or any other necessary and proper relief, including, but not limited to, damages. 1. No Duress or Undue Influence. The Parties represent and agree that they have carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, without any duress or undue influence on the part of or on behalf of any Party, entering into this Agreement. J. Consultation with Counsel. The Parties affirm that, prior to execution of this Agreement, they have consulted with their respective legal counsel/representatives concerning the terms and conditions set forth herein, and that they understand the advice provided to them. 7 12099669.1 EL140-130 Agreement No. 6779 K. Entire Agreement. This Agreement contains all of the terms and conditions agreed upon by the Parties hereto regarding the subject matter of this Agreement. Any prior agreements, promises, negotiations, or representations, either oral or written, relating to the subject matter of this Agreement, not expressly set forth in this Agreement, are of no force or effect. L. Interpretation. This Agreement has been jointly negotiated and drafted by counsel for the Parties. The language in this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties. M. Severability. In the event that any one or more provisions of this Agreement shall be declared to be illegal, invalid, unenforceable, and/or void by a court of competent jurisdiction, such provision or portion of this Agreement shall be deemed to be severed and deleted from this Agreement but this Agreement shall in all other respects remain unmodified and continue in force and effect. N. No Precedent. This Agreement is in no way intended, and shall in no way be construed, to restrict rights guaranteed to the CITY under local, state or federal law, rule, policy or agreement or to establish a precedent in this or any other matter, now or in the future. O. Confidentiality and Disclosure of Terms. Except as disclosed to the Court herein, the Parties each agree to maintain the confidentiality of the negotiations underlying this Agreement to the extent permitted by law, and agree that they shall not voluntarily and publicly discuss the negotiations that led to this Agreement. This provision shall not extend to any information related to the negotiations of this Agreement that the EMPLOYER may be required to disclose pursuant to the requirements of the Ralph M. Brown Act, Government Code section 54950, et seq., the California Public Records Act, Government Code section 6250, et seq., Civil Code section 1670.11, and Code of Civil Procedure section 1001 and Government Code section 12964.5 as expanded by SB 331, or the provisions of any other law or regulation requiring disclosure of information by public entities. P. Execution of Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy or facsimile transmission of the Agreement, including signatures, shall be deemed to constitute evidence of the Agreement having been executed. PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND RELEASE INCLUDES A RELEASE BY RICK TOWNE OF ALL KNOWN AND UNKNOWN CLAIMS. IN WITNESS WHEREOF, the Parties hereto have executed the Settlement Agreement and General Release. Sep 29 2023 Towne Dated: i By: R, lfauyne (Sep 29, 2023 04:20 CDT) RICK TOWNE 8 12099669.1 EL140-130 Agreement No. 6779 CITY OF EL SEGUNDO Dated: _ _:.._.®........ By: DARRELL 43EO GE CITY MANAGER APPROVED AS TO FORM: Dated: September 29, 2023 By: .._ ........... THOMAS SCHELLY LIPELES LAW GROUP, APC Attorneys for PLAINTIFF Dated: _— By: JOUNG H. YIM LIEBERT CASSIDY WHITMORE Attorneys for CITY OF EL SEGUNDO 6 12099669.1 EL140-130 Agreement No. 6779 I'M crr.yl OF EL IIO Qg4(iE na CITY MANAG S,, APPROVED AS TO FORM: DM& S*Wnber 29, 2023 By: THOMAS SCHELLY LIPELES LAW GROUP, APC Attome" for PLARfM Z b z3 JO PT;YIM AttozCa ,