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HomeMy WebLinkAboutBishop, Gregory Settlement Agreement and General Release -2008 07 30~ r SETTLEMENT AGREEMENT AND GENERAL RELEASE THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafterthe "Agreement") is made and entered into by and between GREGORY BISHOP ("BISHOP"), and THE CITY OF WINTER SPRINGS, FLORIDA ("the CITY"). WHEREAS, BISHOP is a member of the United States Army Reserve and alleges that the CITY failed to compensate him incompliance with the provisions of Chapter 1 15, Florida Statutes, during periods of inactive duty training, active duty training, and during periods of deployment; and WHEREAS, the CITY denies BISHOP'S allegations and categorically denies violating any local, state, or federal law or otherwise committing any wrong with respect to BISHOP; and WHEREAS, the parties recognize that continued conflict will be burdensome, costly, and time-consuming and that they therefore enter into this Agreement solely to avoid such burdens, costs and inconveniences; and WHEREAS, the parties desire to settle fully and finally all actual and potential differences and disputes between them, including, but in noway limited to, BISHOP's allegation that the City failed to properly compensate him under 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 tl~e 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 BISHOP'S employment with the CITY or with respect to BISHOP generally. 2. In consideration of the covenants and promises of the CITY as stated in this Agreement, BISHOP 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 BISHOP presently has or has had against the CITY and/or the CITY et al., in their official and/or individual capacities, arisi~ig 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 BISHOP 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 BISHOP'S e-nploy-nent with the CITY or his treatment by the CITY et al., in their official and/or individual capacities; any and all claims asserted by BISHOP 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 BISHOP'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 V[I of the Civil Rights Act of 1964, as amended; (2) Section 115, Florida Statutes, (3) the Uniformed Sen~ices 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 ("ER[SA"); (] 0) the Family and Medical Leave Act ("FMLA"); (11) the Consolidated Omnibus Budset Reconciliation Act of 1985 ("COBRA"); (12) the Florida Civil Rights Act; (13) the Fair Labor Standards Act ("ELBA"); (14) tl~e Occupational Safety and Health ("OSHA"); (15) Chapter 448, Florida Statutes; (16) the Florida Constitution. including but not limited to, the minimum wage amendment found in Article X, Section 24; and (171 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, BISHOP 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 BISHOP breaks leis 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 Agreement, BISHOP will indemnify and hold the C1TY and the CITY et al., in their official and individual capacities, harmless from any liabilih~ 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. BISHOP represents and warrants that he Page 2 of 4 _ ~_ , ~ r 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 agenc}•. 4. In consideration of the covenants and promises of BISHOP as stated in this Agreement, the CITY shall pay BISHOP the total sum of $18,000 (Eighteen Thousand Dollars). The $18,000 shall be paid by the CITY to BISHOP by electronic direct deposit in the same manner that the CITY currently pays wages to him. The $18,000 to be paid to BISHOP represents alleged back pay. As such, the $18,000 shall be paid subject to all lawful payroll taxes, including without limitation, FICA and federal withholding. 5. BISHOP acknowledges and agrees that, pursuant to the Older Workers' Benefit Protection Act ("OWBPA"), he has twenty-one calendar (21) days to consider this Agreement before signing it. BISHOP, after consultation with his attorne~~, understands and acknowledges that he may sign this Agreement prior to the expiration of the 21-day period if he so cl~aoses. 6. Pursuant to the Older Workers' Benefit Protection Act, BISHOP may revoke this Agreement after he executes it by providing written notification to the CITY's' counsel of such revocation within seven (7) calendar days of the date lie signs it. To be effective, any notice of revocation must be received by the CITY's counsel by 5:00 p.m. on the seventh calendar day after the Agreement is executed. This Agreement shall become fully binding and effective on the parties upon the expiration of the seven day period, assuming BISHOP does not give notice of revocation in the manner provided above. BISHOP will be paid the consideration set forth in paragraph 4 above within two (2) business days of the expiration of tl~e seven day period, provided that he does not revoke the Agreement within that period. BISHOP acknowledges that he consulted with leis attorney prior to executing this Agreement and that he fully understands his rights under the Older Workers' Benefit Protection Act. 7. The terms of this Agreement, the contents thereof; and the consideration therefore, are strictly confidential and shall never be disclosed by BISHOP, except that BISHOP may disclose the terms ofthe settlement to his spouse, licensed tax and/or financial advisor and appropriate governmental tax agencies. BISHOP shall inform his spouse, licensed tax and/ot• financial advisor of the strict confidentiality of the terms of this Agreement and shall be responsible for the actions of Isis 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, B[SHOP 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 13 below, BISHOP will pay the CITY liquidated damages in the amount of $2,000 (Two Thousand Dollars) for each such breach and each subsequent breach. BISHOP acknowledges and agrees that tl~e liquidated damages provision in this paragraph is not and should not be construed as a penalty and that the amount specified is reasonable. Page 3 of q _ _~_ , ~ [ 8. This Agreement is freely and voluntarily executed by BISHOP after being made fully aware of all relevant information and data furnished by Iris consultants and/or attorneys. In executing this Agreement, BISHOP 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 attorneys, other than as expressly set forth herein. Furthermore, no promise. inducement or agreement not herein set forth has been made to BISHOP, and this Agreement contains the entire aereetnent beti~een the parties hereto. This Agreement has been fully negotiated in an arm's length transaction and it shall not be construed against any party. 9. 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. 10. 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 beriveen the parties. The parties agree that this Agreement was entered into in Seminole County. Florida. 11. The venue of any dispute behyeen tl~e parties shall be in Seminole County, Florida in the court of appropriate and competent jurisdiction. 12. No other benefit or consideration shall be extended by the C[TY and/or the CITY et al. other than as expressly stated in this Agreement. 13. 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 GENERAL 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 Mutual General Release. GREG ISHOP ACKNOWLEDGED AND AGREED TO BEFORE ME this ~ c'` known to me or who has produced / r~ ~ as identific No n• Public M Commission Expires RON McLEMORE, as City Manager for tl~e City of Winter Springs 7- j~~a~ Date day of July, 2008, who is personally -~____ _. ~~v °~iy_ Notary Public State of Florida Joan L Brown ~c a~ My Commission DD768883 or n°~ Expires 0 311 8/2 01 2 Page ~ of 4