CONTRACT 3149 Settlement AgreementM
SETTLEMENT AND GENERAL RELEASE AGREEMENT
1. PARTIES
This Settlement and General Release Agreement ( "AGREEMENT ") is made and
executed as of March _, 2003, by and between THOMAS DUNHAM ( "DUNHAM ") and the
CITY OF EL SEGUNDO ( "CITY ").
2. RECITALS
2.1 DUNHAM was employed with the CITY from December 19, 1994 to
August 2, 2002 as a full -time employee in the City's Public Works Department.
2.2 Disputes have arisen between DUNHAM and the CITY ( "DISPUTES ")
relating to DUNHAM's employment.
2.3 The purpose of this AGREEMENT is to FINALLY, FULLY and
COMPREHENSIVELY settle the DISPUTES and to release fully and completely ALL
CLAIMS, related to the DISPUTES and otherwise, insofar as said DISPUTES arise out of
DUNHAM' S employment with CIY, that DUNHAM now has or has ever had, individually or
collectively, against the CITY, and all of its agents, officers, officials, current and former
employees, representatives, insurers, attorneys, and all persons acting by, through, under, or in
concert with any of them, and each of them, so as to allow DUNHAM and the CITY to continue
their pursuits having fully, finally, comprehensively and conclusively resolved the DISPUTES
and the underlying contentions and allegations.
3. CONSIDERATION
3.1 In exchange for the releases set forth herein and in full satisfaction and
settlement of DUNHAM's claims, the CITY shall pay the sum of $8,000.00, in the form of a
check made payable to and delivered to DUNHAM's counsel, the Law Offices of E. Thomas
Moroney on the EFFECTIVE DATE of this AGREEMENT.
3.2 In exchange for the payments and representations made herein, DUNHAM
agrees that he waives any recall or return to work rights provided by any rule, ordinance, code,
policy and /or collective bargaining agreement.
3.3 Respecting the payment referenced in paragraphs 3.1 above, the parties
agree that the Form 1099 associated with said payment to the Law Offices of E. Thomas
Moroney should be issued to E. Thomas Moroney. DUNHAM represents, understands,
covenants and agrees that any federal, state or local taxes, if any, that may be owed or payable on
the sums caused to be paid hereunder by the CITY are the sole and exclusive responsibility of
DUNHAM. DUNHAM and the CITY shall each bear their own attorney fees and costs incurred
in connection with the DISPUTES and this AGREEMENT.
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4. S ecific Acknowledgement of Waiver of Claims under ADEA and OWBPA
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 (40) or
older. The Older Workers Benefit Protection Act ( "OWBPA ", 29 U.S.C. sections 626, et. se q.,
Pub. L. 101 -433, 104 Stat. 978 (1990)) further augments the AREA and prohibits the waiver of
any right or claim under the AREA, unless the waiver is knowing and voluntary. By entering
into this AGREEMENT, DUNHAM acknowledges that he knowingly and voluntarily, for just
compensation, waives and releases any rights he may have under the ADEA and /or OWBPA.
DUNHAM further acknowledges that he has been advised and understands, pursuant to the
provisions of the ADEA and OWBPA, that:
(a) This waiver /release is written in a manner understood by DUNHAM;
(b) DUNHAM is aware of, and /or 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 AREA, OWBPA and /or similar age discrimination laws;
(c) DUNHAM 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 AREA, the OWBPA and similar age discrimination laws; but 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;
(d) 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 EFFECTIVE
DATE of this AGREEMENT;
(e) DUNHAM has been advised by this writing that he should consult with an
attorney prior to executing this AGREEMENT;
(f) DUNHAM has discussed this waiver and release with, and been advised
with respect thereto by, his counsel of choice, and that he does not need any additional time
within which to review and consider this AGREEMENT;
(g) DUNHAM has seven (7) days following his execution of this
AGREEMENT to revoke the AGREEMENT,
(h) Notice of revocation within the seven (7) day revocation period must be
provided, in writing, to the CITY pursuant to paragraph 9.10 herein, and must state, "I hereby
revoke my acceptance of our `Settlement and General Release Agreement; "' and
(i) This AGREEMENT shall not be effective until all parties have signed the
AGREEMENT and ten (10) days have passed since DUNHAM's execution (the "EFFECTIVE
DATE ").
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5. RELEASE
k1w In exchange for the payment, representations and covenants made herein, and
except only as to such rights or claims as may be created by this AGREEMENT, DUNHAM
hereby, and for his heirs, representatives, successors, and assigns, releases, acquits, and forever
discharges the CITY, and all of its agents, officers, officials, current and former employees,
representatives, insurers, attorneys, and all persons acting by, through, under, or in concert with
any of them, and each of them, from any and all claims, charges, complaints, liabilities,
obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses,
damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, insofar
as such arise out of DUNHAM' S employment with CITY, known or unknown, suspected or
unsuspected, which DUNHAM 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 from the beginning of time up to and including
the EFFECTIVE DATE of this AGREEMENT ( "CLAIMS "), without regard to whether such
CLAIMS arise under the federal, state or local constitutions, statutes, rules or regulations, or the
common law. DUNHAM expressly acknowledges that the CLAIMS forever barred by this
AGREEMENT specifically include, but are not limited to, claims related to the DISPUTES, his
employment with the CITY, any claims for wages, overtime or benefits, any alleged breach of
any duty, any alleged employment discrimination, harassment, retaliation or unlawful
discriminatory act, any alleged breach of any express or implied employment contract, breach of
any duty arising out of contract, statute, regulation or tort, constructive discharge, wrongful
termination or constructive discharge in violation of public policy, or any claim or cause of
%; action including, but not limited to, any and all claims whether arising under any federal, state or
local law prohibiting wrongful termination, breach of employment contract, or employment
discrimination, wrongful hiring, harassment or retaliation based upon sex, race, age, color,
religion, handicap or disability, national origin or any other protected category or characteristic,
including but not limited to the Federal Fair Labor Standards Act, the California Fair
Employment and Housing Act, the Americans With Disabilities Act, Title VII of the Civil Rights
Act of 1964, and any other federal, state, or local human rights, civil rights, or employment
discrimination or employee rights statute, rule, regulation, or decisional law. Nothing herein
applies to, releases, or waives any of DUNHAM' S retirement rights or benefits, or has any effect
whatsoever on DUNHAM'S Public Employee Retirement System ( "PERS ") account.
6. UNKNOWN CLAIMS
6.1 DUNHAM hereby waives and releases any rights which he may have,
directly or indirectly, if any, jointly or severally, directly or indirectly, under the provisions of
California Civil Code section 1542, and any similar state or federal statute, which reads in sum,
substance or substantial part 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.
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6.2 DUNHAM acknowledges that the facts with respect to which he gives this
GENERAL RELEASE may turn out to be different from the facts he now believes to be true.
DUNHAM hereby assumes the risk of the facts turning out to be different, and agrees that this
AGREEMENT shall in all respects be effective and not subject to termination or rescission
because of any such difference in facts.
7. WAIVER OF ADDITIONAL CLAIMS
DUNHAM hereby waives any provisions of employment related state or federal
laws that might require a more detailed specification of the claims being released pursuant to the
provisions of paragraphs 4 and 5 above.
8. REPRESENTATIONS AND WARRANTIES
Each of the parties to this AGREEMENT represent and warrant and agree with
each other party as follows:
8.1 No Other Claims: DUNHAM hereby represents and warrants that he has
not filed, nor will he file in the future, any complaint, charge, claim, legal action, or proceeding
arising out of the DISPUTES or the CLAIMS released hereby or in any way related to his
employment or separation therefrom with any court, agency, board, hearing officer or tribunal
against the CITY or any of its agents, officers, officials, current and former employees,
representatives, insurers, attorneys, and all persons acting by, through, under, or in concert with
any of them.
8.2 Advice of Counsel: Each party has received independent legal advice
from its attorney(s) with respect to the advisability of making the settlement and releases
provided herein, with respect to the advisability of executing this AGREEMENT, and with
respect to the meaning of California Civil Code section 1542.
8.3 No Fraud in Inducement: No party (nor any officer, agent, employee,
representative, or attorney of or for any party) 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 neither party relies upon any statement, representation,
omission or promise of any other party (or of any officer, agent, employee, representative, or
attorney of or for any party) in executing this AGREEMENT, or in making the settlement
provided for herein, except as expressly stated in this AGREEMENT.
8.4 Independent Investigation: Each party to this AGREEMENT has made
such investigation of the facts pertaining to this settlement and this AGREEMENT and all the
matters pertaining thereto as it deems necessary.
8.5 Comprehension and Authority: Each party or responsible officer thereof
has read this AGREEMENT and understands the contents hereof. Any of the officers executing
this AGREEMENT on behalf of the CITY are empowered to do so and thereby bind the entity.
8.6 Later Discovery: DUNHAM is aware that he may hereafter discover
claims or facts in addition to or different from those he now knows or believes to be true with
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respect to the matters related herein. Nevertheless, it is his intention to fully, finally and forever
„► settle and release all such matters, and all claims relative thereto, which do now exist, may exist
or have previously existed between him and the CITY. In furtherance of such intention, the
releases given here shall be and remain in effect as full and complete releases of all such matters,
notwithstanding the discovery or existence of any additional or different claims or facts relative
thereto.
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8.7 Ownership of Claims: DUNHAM represents and warrants as a material
term of this AGREEMENT that he has not heretofore assigned, transferred, released or granted,
or purported to assign, transfer, release or grant, any of the CLAIMS disposed of by this
AGREEMENT. In executing this AGREEMENT, DUNHAM further represents and warrants
that none of the CLAIMS released by him hereunder will in the future be assigned, conveyed, or
transferred in any fashion to any other person and /or entity.
8.8 Future Cooperation: The parties will execute all such further and
additional documents as shall be reasonable, convenient, necessary or desirable to carry out the
provisions of this AGREEMENT.
9. MISCELLANEOUS
9.1 No Admission: Nothing contained herein shall be construed as an
admission by the parties of any liability of any kind. The CITY denies any liability in
connection with any claim and intends hereby solely to avoid litigation and buy its peace.
9.2 Governing, Law: This AGREEMENT and the rights and obligations of the
parties shall be construed and enforced in accordance with, and governed by, the laws of the
State of California.
9.3 Full Integration: L 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 hereto.
9.4 Continuing Benefit: This AGREEMENT is binding upon and shall inure
to the benefit of the parties hereto, their respective agents, employees, representatives, officers,
and officials.
9.5 Joint Drafting: Each party has cooperated in the drafting and preparation
of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the same
shall not be construed against any party.
9.6 Severability: In the event that any term, covenant, condition, provision or
agreement contained in this AGREEMENT is held to be invalid or void by any court of
competent jurisdiction, the invalidity of any such term, covenant, condition, provision or
agreement shall in no way affect any other term, covenant, condition, provision or agreement and
the remainder of this AGREEMENT shall still be in full force and effect.
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9.7 Titles: The titles included in this AGREEMENT are for reference only
and are not part of the terms of this AGREEMENT, nor do they in any way modify the terms of
this AGREEMENT.
9.8 Counterparts: This AGREEMENT may be executed in counterparts, and
when each party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original, and, when taken together with other signed counterparts, shall constitute one
AGREEMENT, which shall be binding upon and effective as to all parties.
9.9 Executed CWy: All parties shall receive a fully executed copy of this
AGREEMENT.
9.10 Notice: Any and all notices given to any party under this AGREEMENT
shall be given as provided in this paragraph. All notices given to either party shall be made by
certified or registered United States mail, or personal delivery, at the noticing party's discretion,
and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to
have been given on the date of personal service or three (3) consecutive calendar days following
deposit of the same in the United States mail.
As to DUNHAM:
Thomas Dunham
218 Palm Drive
Hermosa Beach, California 90254
As to the CITY:
City Atttorney's Office
350 Main Street
El Segundo, California 90245
WHEREFORE, the parties hereto have read all of the foregoing, understand the
same, and agree to all of the provisions contained herein.
Dated:' ,
CITY OF EL SEGUNDO
By: 72
Mary,S enn, City Manager
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Dated:
APPROVED AS TO FORM:
BY
M D. HENSLEY, City Atty
LA #112580 Q
THOMAS DUNHAM
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Page 7 of 7
THOMAS DUNHAM
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City of El Segundo
- City Manager's Office
Fax Cover Sheet
Date: 3/4,/63
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Number of Pages Including this Cover Sheet: 73
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DATE DIME
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NAME
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MAR -5 -2003 09:42A FROM: C310) 791 -9042 i s
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03/04/2003 16:39 310- 6406994
Dated. 3 - q- 03
APPROVED AS TO FORM:
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: V-fM D. BIENNSLE'Y, city Atty
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By:
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Page 7 of 7
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