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SETTLEMENT AGREEMENT AND GENERAL RELEASE
1. PARTIES
This Settlement Agreement and General Release (hereinafter referred to as the “AGREEMENT”) is entered into by and between the City of Richmond, a California charter city (hereinafter referred to as “THE CITY”), and James M. Nantell, an individual (hereinafter referred to as “RETIREE”). Both THE CITY and RETIREE are collectively referred to as “THE PARTIES.” This AGREEMENT shall be deemed to be effective as of the date it has been approved by the City Council and executed by both of THE PARTIES (the “EFFECTIVE DATE”).
2. RECITALS
2.1. RETIREE worked for THE CITY as a California Public Employees’ Retirement System (“CalPERS”) retired annuitant between February 2021 and January 2022. As a retired annuitant, RETIREE’s work for THE CITY was subject to CalPERS retired annuitant hiring requirements and restrictions, including but not limited to Government Code sections 21220, 21221(h), 21224, and 7522.56 (the “RETIRED ANNUITANT REQUIREMENTS”).
2.2. By a letter dated March 29, 2022, CalPERS notified RETIREE and THE CITY that it had determined that RETIREE had been employed by THE CITY in violation of the RETIRED ANNUITANT REQUIREMENTS, based on allegedly “filling the vacant Community Services Director position while there was no recruitment by the City for a permanent appointment.” RETIREE submitted a timely appeal of CalPERS’ determination.
2.3. Following RETIREE’s timely appeal, by a letter dated September 9, 2022, CalPERS notified RETIREE that in lieu of pursuin g reinstatement of RETIREE and a penalty of $202,048.28, “CalPERS is willing to resolve this violation by allowing you to repay CalPERS for the retirement warrants you received from the dates you worked in the vacant position, from February 2021 through May 2021.” CalPERS indicated in its September 9, 2022 letter it had determined that the retirement warrants received by RETIREE during this timeframe totaled $71,659.90. On November 17, 2022, RETIREE submitted to CalPERS notification, in the form requested by CalPERS, accepting the proposed remedy and agreeing to pay to CalPERS the amount of $71,659.90 to resolve the pending CalPERS administrative action. By a letter dated February 2, 2023, CalPERS invoiced RETIREE for the amount of $71,659.90.
` 2.4. Both THE CITY and RETIREE deny any wrongdoing with respect to CalPERS and to each other, in connection with CalPERS’ assertion that RETIREE was employed in violation of RETIRED ANNUITANT REQUIREMENTS. THE CITY desires to enter into th is AGREEMENT with RETIREE solely to avoid potential claims and/or litigation and buy its peace.
2.5 Pursuant to the terms and conditions of this AGREEMENT, and in consideration of the various releases contained in this AGREEMENT, THE CITY agrees to provide RETIREE a one-time lump sum settlement payment in the amount of $71,659.90 in exchange for a release of any claims RETIREE might have against THE CITY in connection with or related to his employment, including those arising out of violation of RETIRED ANNUITANT REQUIREMENTS alleged by CalPERS and CalPERS’ related enforcement action.
3. CONSIDERATION
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3.1. All of the recitals listed in Paragraph 2 above are material provisions of this AGREEMENT.
3.2. In exchange for the waivers and releases set forth herein, THE CITY shall cause to be paid to RETIREE a lump sum amount of Seventy One Thousand Six Hundred Fifty Nine dollars and Ninety cents ($71,659.90) in the form of a check made payable to RETIREE to be mailed to RETIREE at RETIREE’s home address via certified mail return receipt requested within thirty (30) calendar days after the EFFECTIVE DATE.
3.3. In exchange for the settlement and release payment provided for herein, RETIREE, and on behalf of RETIREE’s spouse, heirs, representatives, successors, and assigns, hereby releases, acquits, and forever discharges THE CITY, and each of its predecessors, successors, assigns, officials, employees, representatives, agents, insurers, attorneys, and all persons and entities acting by, through, under, or in concert with any of them, and each of them (hereinafter referred to as “THE CITY PARTIES”), from any and all claims, charges, complaints, contracts, understandings, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which RETIREE now has or may acquire in the future, or which RETIREE ever had, relating to or arising out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at anytime from the b eginning of time up to and including the date RETIREE executes this AGREEMENT (hereinafter referred to collectively as “CLAIMS”), without regard to whether such CLAIMS arise under the federal, state, or local constitutions, statutes, rules or regulations, or the common law.
RETIREE expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, any demands or claims related to or arising out alleged violation of RETIRED ANNUITANT REQUIREMENTS and CalPERS’ related enforcement action, any claims for negligence, any claims for indemnification, claims based upon any alleged breach of any agreement of employment, any demand for wages, overtime or benefits, any claims of violation of the provisions of ERISA, COBRA or HIPAA, any alleged breach of any duty arising out of contract or tort, any alleged wrongful termination in violation of public policy, any alleged breach of any express or implied contract for continued employment, any alleged employment discrimination or unlawful discriminatory act, 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 breach of employment contract, wrongful termination, or empl oyment discrimination based upon age, race, color, sex, religion, handicap or disability, national origin or any other protected category or characteristic, and any and all rights or claims arising under the California Labor Code or Industrial Welfare Commission Wage Orders, the Federal Fair Labor Standards Act, the California Fair Employment and Housing Act, California Government Code §§12900 et seq., the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, and any other federal, sta te, or local human rights, civil rights, or employment discrimination or employee rights statute, rule, or regulation.
3.4. RETIREE specifically agrees that he shall not in the future file, participate in, instigate or encourage the filing of any lawsuits, complaints, charges or any other proceedings in any state or federal court of before any local, state, or federal agency, administrative tribunal, quasi-administrative tribunal or person, claiming that THE CITY has violated any local, state or federal laws, statutes, ordinances or regulations or claiming that THE CITY has engaged in any tortious, other state, or other federal based misconduct of any kind, based upon any events occurring prior to the date of RETIREE’s execution of this AGREEMENT.
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3.5. Nothing in this AGREEMENT is intended to or shall interfere with RETIREE’s right to participate in a proceeding with any appropriate federal, state or local governmental agency, including but not limited to the federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing, enforcing discrimination laws, nor shall this AGREEMENT prohibit RETIREE from cooperating with any such agency in its investigation. Additionally, consistent with the requirements of Civil Code section 1670.11, nothing in this AGREEMENT is intended to waive RETIREE’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of agents or employees of THE CITY, when RETIREE has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the Legislature. Finally, THE CITY understands that to the extent mandated by law, RETIREE will comply with all legal obligations arising out of his employment with the CITY pursuant to any lawful subpoena or court order , or as otherwise required by law.
4. UNKNOWN CLAIMS
In relation to the release provisions of Paragraph 3 above, RETIREE understands that California Civil Code section 1542 reads as follows:
“General Release--Claims Extinguished”
“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.”
RETIREE hereby waives the protection of California Civil Code section 1542.
5. WAIVER OF ADDITIONAL CLAIMS
RETIREE hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3 and 4 above.
6. REPRESENTATIONS AND WARRANTIES
Each of THE PARTIES to this AGREEMENT represents and warrants to, and agrees with, each other party as follows:
6.1. Advice of Counsel: THE PARTIES hereto have received independent legal advice from their respective attorneys concerning the advisability of entering into and executing this AGREEMENT or have been given the opportunity to obtain such advice. THE PARTIES acknowledge that they have been represented by counsel of their own choice in the negotiation of this AGREEMENT, that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them by such counsel, or have had such opportunity to do so and that they are fully aware of the contents of this AGREEMENT and of its legal effect.
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6.2. 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 in executing this AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this AGREEMENT.
6.3. 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.
6.4. Mistake Waived: In entering into this AGREEMENT, each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this AGREEMENT was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to be, and is, final and binding between THE PARTIES, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever.
6.5. Later Discovery: THE PARTIES are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of THE PARTIES that RETIREE 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 against THE CITY or THE CITY PARTIES. 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.
6.6. Indemnification: RETIREE agrees to indemnify and hold harmless THE CITY and THE CITY PARTIES from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violati on or breach of the covenants, warranties, and representations undertaken pursuant to the provisions of this AGREEMENT. RETIREE understands and agrees that he shall be exclusively liable for the payment of all taxes for which he is responsible, if any, as a result of his receipt of the consideration referred to in Paragraph 3 of this AGREEMENT.
In addition, RETIREE agrees fully to indemnify and hold THE CITY and THE CITY PARTIES harmless for payment of tax obligations as may be required by any federal, state or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 3 of this AGREEMENT.
6.7. No Pending Claims and/or Actions: RETIREE represents that he has not filed any complaints or charges against THE CITY or THE CITY PARTIES with any local, state or federal agency or court; that he will not do so at any time hereafter for any claim arising up to and including the EFFECTIVE D ATE of this AGREEMENT; and that if any such agency or court assumes jurisdiction of any such complaint or charge against THE CITY or THE CITY PARTIES on behalf of RETIREE, whenever or where ever filed, he will request such agency or court to withdraw from the matter forthwith.
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6.8. Ownership of Claims: RETIREE represents and warrants as a material term of this AGREEMENT that RETIREE has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of t he CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, RETIREE further warrants and represents that none of the CLAIMS released by RETIREE thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity.
6.9. Enforcement Fees and Costs: Should any legal action be required to enforce the terms of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which that party may be entitled.
6.10. Authority: Each party represents to the other that it has the right to enter into this AGREEMENT, and that it is not violating the terms or conditions of any other AGREEMENT to which they are a party or by which they are bound by entering into this AGREEMENT. THE PARTIES represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and agreed that the individuals signing this AGREEMENT on behalf of the respective parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has been signed.
7. MISCELLANEOUS
7.1. No Admission: Neither of THE PARTIES admits any liability; neither of THE PARTIES admits that he/it has committed any act which creates liability to any other. THE PARTIES specifically disclaim any liability to, or wrongful acts against, each other and any other person or organization and its agents, representatives or successors in interest and assigns. THE CITY intends solely to avoid potential claims and/or litigation and buy its peace.
7.2. Governing Law: This AGREEMENT has been executed and delivered within the State of California, 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.
7.3. Full Integration: 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.
7.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, spouses, employees, representatives, officials, attorneys, assigns, heirs, and successors in interest.
7.5. Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the parties agree that same shall not be construed against any party.
7.6. 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 o f this AGREEMENT shall still be in full force and effect.
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7.7. Titles: The titles included in this AGREEMENT are for reference only and are not part of its terms, nor do they in any way modify the terms of this AGREEMENT.
7.8. Counterparts: This AGR EEMENT 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.
7.9. 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 Uni ted 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 day s following deposit of the same in the United States mail.
As to RETIREE:
At RETIREE’s home address on file with THE CITY.
As to THE CITY:
City Manager
City of Richmond
440 Civic Center Plaza
Richmond, CA 94804
7.10. Applicability of Government Code Defense Responsibilities: This AGREEMENT is not intended to alter THE CITY’s defense responsibilities under state law (California Government Code §995 et seq.) with respect to any third party employment civil claims or actions against RETIREE as a former employee of THE CITY.
IN WITNESS WHEREOF, THE CITY has caused this AGREEMENT to be signed and executed on its behalf by its City Manager and duly attested by its City Clerk, RETIREE has signed and executed this Agreement, and the attorneys for THE CITY an d RETIREE, if any, have approved as to form as of the dates written below.
[SIGNATURES ON FOLLOWING PAGE]
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DATED: _______________ RETIREE
By: ________________________________
James M. Nantell
THE CITY
DATED: __________________ By: ________________________________ Shasa Curl, City Manager
ATTEST:
__________________________
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By: ________________________
David J. Aleshire, City Attorney
MESSING ADAM & JASMINE LLP
By: ________________________
Lina Balciunas Cockrell