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HomeMy WebLinkAboutRivera, Julio Settlement Agreement and General Release -2008 12 03SETTLEMENT AGREEMENT AND GENERAL RELEASE THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafter the "Agreement") is made and entered into by and between JULIO RIVERA ("RNERA"), and THE CITY OF WINTER SPRINGS, FLORIDA ("the CITY"). WHEREAS, RIVERA has been employed by the CITY since May 23, 2002; and WHEREAS, RNERA serves in the United States Navy; and WHEREAS, during the course of his employment with the CITY, as part of his duties as a member of the United States Navy, RIVERA has received orders to attend various training sessions in 2003, 2004, 2005 and 2006 and was deployed into active duty in 2006; and WHEREAS, it has recently come to the CITY's attention that the CITY did not compensate RIVERA in accordance with the requirements of Chapter 115, Florida Statutes, for these training sessions and deployment periods; and WHEREAS, the CITY desires to remedy its error in the form of one lump payroll disbursement to RIV ERA; and WHEREAS, the parties desire to settle fully and finally all actual and potential differences and disputes between them, including, but in no way limited to, compensation due RIVERA pursuant to Chapter 115, Florida Statutes; NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency and adequacy of which mutual consideration is hereby acknowledged, the parties resolve all disputes between them from the beginning of the world to the date of their execution of this Agreement, as follows: 1. Neither this settlement nor this Agreement shall constitute or be construed as any admission or adjudication of liability against the CITY and/or its City Manager, employees, agents, attorneys, representatives, and/or appointed or elected officials (hereinafter "the CITY et al."), as an admission or adjudication of any violation of local, state, and/or federal law by the CITY and/or the CITY et al. or as an admission or adjudication of any wrongdoing of any kind with respect to RIVERA's employment with the CITY or with respect to RIVERA generally. 2. In consideration of the covenants and promises of the CITY as stated in this Agreement, RIVERA hereby fully and finally releases and discharges the CITY and the CITY et al., in their official and individual capacities, from any and all claims, claims of unpaid interest, claims of unpaid wages, claims of unpaid military leave, claims of recordkeeping violations, claims of compensatory damages, claims of emotional damages, claims for punitive damages, claims of unpaid overtime compensation, claims of unpaid minimum wages, claims of unpaid pension contributions, claims of unpaid expenses, liquidated damages claims, claims of unpaid benefits, charges, demands, debts, rights, damages, liens, costs, losses, suits, actions, causes of action, claims for attorney's fees and costs, in law or in equity, known or unknown, which RIVERA presently has or has had against the CITY and/or the CITY et al., in their official and/or individual capacities, arising from or by reason of any matter, act, omission, cause or thing whatsoever, known or unknown, foreseen or unforseen, from the beginning of the world to the date RNERA executes this Agreement, including without limitation, any and all claims that he has or may have against the CITY and/or the CITY et al., in their official and/or individual capacities, for any statutory violation, violation of any Executive Order, violation of any local, state, or federal law or regulation, violation of common law, breach of contract, tortious act, or other wrongdoing with respect to him; any and all claims of other liability or damage of any nature whatsoever which have arisen or might have arisen from any alleged acts, omissions, events, circumstances or conditions related to RIVERA's employment with the CITY or his treatment by the CITY et al., in their official and/or individual capacities; any and all claims asserted by RIVERA in any claim, complaint, suit or charge against the CITY and/or the CITY et al., in their official or individual capacities (including, without limitation, any complaints made to any local, state or federal agency), for or on account of any matter or thing whatsoever occurring up to and including the date of RNERA's execution of this Agreement; any and all claims arising out of alleged violations of any alleged employment or other contractual promise or covenant, express or implied, or any tort; any and all claims arising out of any local, state, or federal law, statute, regulation, or ordinance or any state or federal constitution or constitutional amendment, including but not limited to the following laws and their supporting regulations, if any: (1) Title VII of the Civil Rights Act of 1964, as amended; (2) Chapter 115, Florida Statutes, (3) the Uniformed Services Employment and Reemployment Rights Act; (4) any Executive Order; (5) the First, Fourth, Fifth, and/or Fourteenth Amendments to the United States Constitution; (6) the Rehabilitation Act of 1973; (7) the Americans with Disabilities Act ("ADA"); (8) the Age Discrimination in Employment Act ("ADEA"); (9) the Employee Retirement Income Security Act ("ERISA"); (10) the Family and Medical Leave Act ("FMLA"); (11) the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); (12) the Florida Civil Rights Act; (13) the Fair Labor Standards Act ("FLSA"); (14) the Occupational Safety and Health ("OSHA"); (IS) Chapter 448, Florida Statutes; (16) the Florida Constitution, including but not limited to, the minimum wage amendment found in Article X, Section 24; and (17) other state law causes of action, whether statutory or based upon common law, including, but not limited to, those for wrongful termination, invasion of privacy, battery, assault, false imprisonment, defamation, libel, slander, intentional or negligent infliction ofemotional distress, fraud, fraud in the inducement, breach of express or implied contract, and breach of any express or implied covenant of good faith and fair dealing, the validity, existence or occurrence of which is expressly denied by the CITY and the CITY et al., in their official and individual capacities. 3. In consideration of the covenants and promises of the CITY as stated in this Agreement, RIVERA promises never to file any lawsuits, charges, or complaints (including, without limitation, any complaints with any federal, state, or local agency) and to never institute or participate as a plaintiff, claimant, or class member in any legal, equitable or administrative proceedings asserting any claims or rights that are released in paragraph 2 hereinabove. If RNERA breaks his promise in this paragraph and institutes any legal, equitable or administrative proceeding, or if he files any lawsuit, charge and/or complaint based on claims or rights that are released under this Page 2 of 4 Agreement, RNERA will indemnify and hold the CITY and the CITY et al., in their official and individual capacities, harmless from any liability imposed as a result of such action or proceeding and from all attorney's fees, costs, and expenses incurred in defending any such action or proceeding. RNERA represents and warrants that he has filed no administrative, civil or criminal charges, actions or complaints against the CITY and/or the CITY et al, in their official and/or individual capacities, with any court or other entity, including without limitation, any federal, state, or local governmental agency. 4. In consideration of the covenants and promises of RNERA as stated in this Agreement, the CITY shall pay RNERA the total sum of Four Thousand Nine Hundred Seventy-Nine and 07/100 Dollazs ($4,979.07) ("Payment"). The Payment shall be paid by the CITY to RIVERA by check. The Payment to be paid to RIVERA represents back pay. As such, the Payment shall be paid subject to all lawful payroll taxes, including without limitation, FICA and federal withholding. 5. The terms of this Agreement, the contents thereof, and the consideration therefore, are strictly confidential and shall never be disclosed by RIVERA, except that RIVERA may disclose the terms of the settlement to his spouse, licensed tax and/or financial advisor and appropriate governmental tax agencies. RNERA shall inform his spouse, licensed tax and/or financial advisor of the strict confidentiality of the terms of this Agreement and shall be responsible for the actions of his spouse, licensed tax and/or financial advisor for any breach of his pledge ofnon-disclosure and confidentiality. A violation of the promise of confidentiality set forth above shall be a material breach of this Agreement. It is acknowledged that in the event of such a violation, it will be impracticable or extremely difficult to calculate actual damages and, therefore, RIVERA agrees that in the event that there is a breach of his duty of non-disclosure and confidentiality, in addition to whatever rights the CITY may have to injunctive relief and to attorney's fees and costs under paragraph I 1 below, RIVERA will pay the CITY liquidated damages in the amount of Two Thousand and no/100 Dollazs ($2000.00) for each such breach and each subsequent breach. RIVERA acknowledges and agrees that the liquidated damages provision in this paragraph is not and should not be construed as a penalty and that the amount specified is reasonable. 6. This Agreement is freely and voluntarily executed by RIVERA after being made fully aware of all relevant information and data furnished by his consultants and/or attorneys. In executing this Agreement, RNERA acknowledges and agrees that he did not rely on any inducements, promises or representations made by the CITY, the CITY et al., any representative of any local, state or federal agency or any of his attomeys, other than as expressly set forth herein. Furthermore, no promise, inducement or agreement not herein set forth has been made to RIVERA, and this Agreement contains the entire agreement between the parties hereto. This Agreement has been fully negotiated in an arm's length transaction and it shall not be construed against any party. 7. The provisions of this Agreement are severable. If any part is found to be unenforceable, the other provisions shall remain fully valid and enforceable and the remaining portions of this Agreement shall survive. Page 3 of 4 8. The parties agree that this Agreement is consummated in the State of Florida and that Florida law shall apply in construing any provisions hereof and in any proceeding between the parties. The parties agree that this Agreement was entered into in Seminole County, Florida. 9. The venue of any dispute between the parties shall be in Seminole County, Florida in the court of appropriate and competent jurisdiction. ! 0. No other benefit or consideration shall be extended by the CITY and/or the CITY et al. other than as expressly stated in this Agreement. 11. Should litigation arise in law or equity due to any violation of this Agreement, the prevailing party shall be entitled to their reasonable attorney's fees and costs incurred in such action. PLEASE READ THIS SETTLEMENT AGREEMENT AND GENFR,~L RELEASE CAREFULLY IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS IN WITNESS WHEREOF, and intended to be legally bound thereby, the Parties execute this Settlement Agreement and General Release. ~._ • JULIO RIVERA ACKNOWLEDGED AND AGREED TO BEFORE ME this ~ R~ day of December, 2008, who is ersonally known to me or who has produced as identification. N Public ~~-~' ~~,~ Nntary Public State of Florida My ommission Expires: ~0' (~l2d / (~ Nun K ~inh~ ~,~ ~' ••"~Y ~::~"^m:sswn DD545099 °F~`O cxpnes _~i121[010 ~~ -~j~ RON McLEMORE, as Cy Mana er for the City of Winter Springs /,~~3-0~ Date Page 4 of 4