CONTRACT 3521 Settlement Agreement3521 ,,
SETTLEMENT AGREEMENT AND RELEASE
This SETTLEMENT AGREEMENT AND RELEASE ( "Agreement ") is made and
entered into by and between Michael C. Ward ( "Ward ") on the one hand and the City of El
Segundo, Robert Hyland and Paul Giera (collectively "City ") on the other.
A. Ward's employment with City ended April 1, 2004. Ward Challenged his
termination in litigation entitled Ward v City of El Segundo Bob Hyland and Paul Giera, Los
Angeles Superior Court case No. BC325247.
B. The purpose of this Agreement is to settle and compromise all disputes and
controversies existing between City and Ward arising out of Ward's prior employment with City
up to and terminating April 1, 2004.
C. Both Ward and the City desire to bring all disputes and controversies existing
between them to a conclusion and to avoid administrative /civil prosecution and defense thereof.
Therefore, the parties enter into this SETTLEMENT AGREEMENT AND RELEASE.
In consideration for the mutual covenants set forth below, the parties agree as follows:
By executing this Agreement, no party hereto admits or concedes any of the
claims, defenses or allegations which were raised, could have been or could be raised by the
other party or any third party. Moreover, this Agreement shall not be construed to be, nor shall it
be, admissible in any proceeding as evidence of or any admission by any party of any violation
of law or any wrongdoing whatsoever. This document may only be introduced into evidence to
enforce the terms of the Agreement.
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2. Each party hereto understands that this Agreement extends to all grievances,
disputes or claims of every nature and kind, known or unknown, suspected or unsuspected,
between the parties at the time of execution. Each party understands that this release does not
include claims relating to any conduct or activity which occurs after the date of execution of this
Agreement. Each party further acknowledges that any and all rights granted by section 1542 of
the California Civil Code, or any other analogous federal or state law or regulation, are hereby
expressly waived. California Civil Code section 1542 reads 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.
Thus, it is the intent of Ward to waive all known and unknown claims which he has or
could have as of the effective date of this Agreement.
3. Ward shall be reinstated to employment with City as Wastewater Maintenance
Worker II on September 15, 2005. As a full -time regular employee of the City, Ward shall be
entitled to compensation at his regular rate of pay as well as all benefits to which a similarly
situated full -time regular employee on paid status in the position of Wastewater Maintenance
Worker II is entitled. With regard to Ward's retirement, years of service is calculated by the
amount of money contributed. While Ward was on unpaid status he was not contributing into
the City's retirement system, and therefore not increasing his years of service. Upon
reinstatement as a Wastewater Maintenance Worker II, Ward's retirement contributions will be
added to whatever remains in his retirement account.
4. Prior to his reinstatement, Ward shall provide City with a full medical release
without any limitations from his treating health care professional allowing Ward to return to
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work as Wastewater Maintenance Worker Il effective September 15, 2005. (See Exhibit 1 to
Ward's declaration.)
5. Prior to his reinstatement, Ward shall provide a declaration stating that he is fully
able to return to work without any limitations or restrictions, and that he is able to perform all
duties of his position. (See Exhibit A, Ward declaration.)
6. City shall pay Ward the sum of thirty thousand dollars ($30,000.00) within 30
days after the date of Ward's signature on this Agreement. Such payment shall be paid in gross
and without any withholding or deduction of any type or amount. This payment shall be drawn
to Michael C. Ward and his attorney Paul R. Hammons, Esq.
7. Ward agrees to assume full responsibility, if any, for payment of taxes on the
settlement amount. Ward agrees to indemnify and hold City harmless from tax liability, if any,
which may become due as a result of the payment of the settlement amount.
8. The consideration called for in paragraphs 3 and 5 hereof shall be provided to
Ward if and only if the time provided to Ward to revoke this Agreement set forth in Paragraph
9B below expires and Ward has not revoked his acceptance of this Agreement.
9A. Ward, for himself, his heirs, legal representatives, agents, successors in interest
and assigns, irrevocably and unconditionally releases, acquits and forever discharges City from
any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims,
liabilities, and demands of whatsoever kind or character, known or unknown, past, present and
future, suspected to exist or not suspected to exist, actual or potential, anticipated or not
anticipated, at the time of execution of this Agreement, or otherwise, regardless of whether
heretofore brought before any state or federal court or before any state or federal agency or other
governmental entity. This release includes, without limitation, claims under the Age
Discrimination in Employment Act (29 U.S.C. § 621 et seq.), the California Fair Employment
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and Housing Act (California Government Code § 12900 et seq.), the California Family Rights
Act (California Government Code § 12945.2), the Unruh and George Civil Rights Acts
(California Civil Code § 51 et seq.), all provisions of the California Labor Code and any related
wage orders or similar directives or authorities issued by any federal or state authority having
enforcement powers, 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. § 2000(e) et seq.), the Equal Pay
Act (29 U.S.C. § 206(d)), the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), the Family and
Medical Leave Act (29 U.S.C. § 2601 et seq.), the Employment Retirement Income Security Act
of 1974 ( "ERISA "; 29 U.S.C. § 1001 et seq.), Sections 1981 -88 of Title 42 of the United States
Code (42 U.S.C. § 1981 et seq.), the American with Disabilities Act (42 U.S.C. § 12101 et seq.),
claims of retaliation or whistle - blowing (including but not limited to California Labor Code §
1102.5 et seq.), the Workers' Compensation Act (Labor Code § 3200 et seq.), claims for breach
of any type of contract, including written, oral or implied, breach of any covenant, promise or
representation pertaining to Ward's employment, whether expressed or implied, and all other
claims arising in contract, tort or equity or under any other statute, federal, state or local up to the
date of this Agreement.
9B. Ward specifically acknowledges that, pursuant to Title 29 of the United States
Code, Chapter 14, entitled "AGE DISCRIMINATION IN EMPLOYMENT," (1) it shall be
unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age; (2) to limit, segregate, or classify
employees in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his /her status as an employee, because of such
individual's age; or (3) to reduce the wage rate of any employee in order to comply with said
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3521 .
Chapter. Ward hereby acknowledges and agrees that he has been given a period of at least
twenty -one (2 1) days within which to consider entering into this Agreement, and that, for a
period of seven (7) calendar days following his execution of this Agreement, he may revoke this
Agreement. This Agreement shall not become effective or enforceable until the revocation
period has expired and Ward fails to revoke his acceptance of this Agreement. As regards this
waiver, Ward specifically acknowledges that he has received valuable consideration for his
waiver of rights which he would otherwise not receive, that he knows of his right to consult an
attorney prior to executing this Agreement, and that he has done so.
9C. Ward, through his counsel of record, shall file with the Los Angeles County
Superior Court a Request for Dismissal of the civil litigation entitled Michael Christopher Ward
v. City of El Segundo, Bob Hyland, an individual, Paul Giera, an individual and Does 1 through
20, Los Angeles Superior Court case number BC325247. This dismissal shall be of the entire
action with prejudice with each party to bear his or its own costs of suit and attorneys fees. The
Request for Dismissal shall be in the form attached hereto as Exhibit B.
10. The City agrees that it will seal Ward's personnel file regarding his termination
on or about April 1, 2004, and shall respond to any inquiry from any prospective employer
regarding Ward by advising the prospective employer only of the dates of Ward's employment
with the City.
11. Each party shall bear its /his own costs, expenses and attorneys' fees incurred in
connection with this Agreement, or in connection with any other claims made, investigated,
litigated or otherwise pursued 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 attorneys' fees from the other party. Attorneys
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for all parties to this Agreement do likewise expressly waive any claim for recovery of costs,
expenses and/or attorney's fees from the other party(ies).
12. 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.
13. 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.
14. Ward acknowledges and understands that he has been given a period of at least
twenty -one (21) waivable days to consider whether to sign this Agreement. If he does sign this
Agreement, he shall then have a period of seven (7) non - waivable calendar days following the
date of his signature to revoke his consent to this Agreement. If Ward does choose to revoke his
signature on this Agreement, he must deliver written notice of such revocation no later than 5:00
p.m. Pacific Standard Time of the seventh day after his execution of this Agreement, to City's
attorneys of record.
15. Each party hereto represents and agrees that he or it has carefully read and fully
understands all of the provisions of this Agreement, and that he or it is voluntarily, without any
duress or undue influence on the part of or on behalf of any party, entering into this Agreement.
16. Ward affirms that, prior to execution of this Agreement, he has consulted with his
legal representative concerning the terms and conditions set forth herein.
17. The 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
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photocopy or facsimile transmission of the Agreement, including signatures, shall be deemed to
constitute evidence of the Agreement having been executed.
18. 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.
19. This Agreement is made and entered into in the State of California and shall be
governed, interpreted and enforced under the laws of this State. 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 seeks to enforce its terms, conditions, provisions or
obligations.
20. Should any party to this Agreement institute legal proceedings against another
party, regarding this Agreement, the prevailing party to any such action shall be entitled to
recover reasonable attorneys' fees and costs.
21. Should any provision of this Agreement be declared or be determined by any
Court to be illegal or invalid, the validity of the remaining parts, terms and provisions shall not
be affected thereby and said illegal or invalid part, term or provision, shall be deemed not to be a
part of this Agreement.
22. The date of the last signature placed hereon shall hereinafter be known as the
"date of execution" of this Agreement.
23. Ward hereby represents and warrants that in making this Agreement, he
understands and agrees that he has relied wholly upon his own judgment, belief and knowledge
of the nature, extent and duration of any of his claims and that he has not been influenced to any
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.i'1 V bob JUwts
o_„y —vim, �. »,rw uubrsa nnu nnnununa
extant whiAsoever in making this Agreement by any represeritauans by or on behalf of City not
conrainad kxcx'eita. '
24. This Agreement has been jaimly negotiated and draf Ad by oounsol for d Fartics.
The langrnatgp in thin Agreement shall be ronst=d as a whole sccording to its fhk meaning and
not. strictly for or ageing any of the parties.
PLEASE READ CAREFULY. THIS SETTLEMENT AGREEMENT AND RELEASE
INCLUDES A RELEASE BY WARD OF ALL KNOWN AND UNKNOWN CLAIMS AS
REGARDS THE SPECIFIC MATTiRB AS SET FORTH HEWN.
IN WITNESS WHBR.EOF, the patsies hereto have executed tho SETTL P-WMM
AG",ENfFNT AND RELEASE, Dated: i$ v5
"W,'
gel C. We%
Darted: $ /�$�Ob
Mayor, City
APPROVED AS TO FORM AND SUBSTANCE-'
Dated: 9/18 /o S By. �`
Paul 1`IarnmoAS
Attomey for N ichael Ward
APPROM) AS TO FORM AND SUBSTANCE:
Dated; �- aps LISB T C 5IDY WHTTMORE
By:
for City of El Segundo
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