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HomeMy WebLinkAboutContract 51789 m r',TY SECRETARY No'. J I�� pFFOR�wp�SK RELEASE AND COVENANT NOT TO SUE C1�1.1`(SECEI���Y THIS RELEASE AND COVENANT NOT TO SUE is made and entered into by and between Fernando Gonzalez and the City of Fort Worth, Texas. ARTICLE I - DEFINITIONS As used in this Agreement, the following terms shall have the definition indicated in this Article. 1.1. "Agreement" shall mean this Release and Covenant Not to Sue. 1.2. "Gonzalez" shall mean Fernando Gonzalez. 1.3. "City"or"the City"shall mean the City of Fort Worth. 1.4. "Parties" shall mean Gonzalez and the City, collectively. 1.5. "Party"shall mean Gonzalez orthe City,individually. 1.6. "Lawsuit" shall mean the action the City filed against Gonzalez and the counterclaims Gonzalez filed against the City in Tarrant County Court at Law, Cause number 2017-003967-2. ARTICLE II - RECITALS AND PURPOSE 2.1. Gonzalez retired from his position as Deputy Chief of the Fort Worth Fire Department in 2013. At that time, the City alleges it overpaid to Gonzalez the value of his unused sick and vacation leave in the amount of$63,736.85 and that this money had not been repaid. The City filed the Lawsuit to recover this money held by Gonzalez that it alleged rightfully belonged to the City. Gonzalez acknowledges an overpayment but asserts that City records underreported his accrued vacation hours and that he was owed the majority of the alleged overpayment. In addition, Gonzalez filed a counterclaim alleging that the City Release and Covenant Not to Sue 7FTRTH1, REcuReq, dETARY breached a contract with Gonzalez in which it agreed to properly record Gonzalez's vacation leave hours. Gonzalez also filed counterclaims against the City for Promissory Estoppel, Negligent Misrepresentation and Quantum Meruit. 2.2. The Parties desire to settle, in the manner set forth herein, any and all claims or controversies between them in order to avoid the expense and uncertainty of litigation and to buy their peace. NOW, THEREFORE, upon the execution of this Agreement and in consideration of the mutual promises and agreements contained herein, the Recitals contained herein, and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree to the following: ARTICLE III-TERMS OF AGREEMENT 3.1. Consideration.In consideration for the City's promises and covenants herein, including the City's willingness to accept as payment in full what it believes to be less than the amount of the overpayment it made to Gonzalez, Gonzalez agrees to dismiss his counterclaims and pay to the City the sum of FORTY-TWO THOUSAND DOLLARS AND NO/100 ($42,000.00) as actual damages. Gonzalez shall deliver a check, made payable to the City of Fort Worth, to the City's attorney within thirty (30) calendar days after the final execution of this Agreement. The City agrees that this payment is sufficient consideration for the promises and covenants made by it in this Agreement. Further, the City acknowledges that this is a complete and final release and that no additional money is to be paid to it on account of any cause of action or claim it may have against Gonzalez regarding his terminal leave benefits or any cause of action or claim related to the Lawsuit. Release and Covenant Not to Sue Page 2 of 8 3.2. Release of All Claims and Disputes and Covenant Not to Sue. The City IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, FOREVER DISCHARGES,AND COVENANTS NOT TO SUE Gonzalez,including his heirs, successors and assigns, and any other person or entity who or which may be liable through or on his behalf, from and for any and all claims,complaints,obligations,promises, agreements, causes of action, debts,demands, costs, losses, damages,and expenses(including,without limitation, attorney's fees) whatsoever, pleaded or not pleaded, other than any arising from a breach of this Agreement,under any municipal,local,state,or federal law,common or statutory, for any actions or omissions whatsoever, whether known or unknown, fixed or contingent, liquidated or unliquidated, specifically including,but not limited to,any claim the City may have against Gonzalez regarding his terminal leave benefits or the Lawsuit, which existed or may or could have existed prior to, or contemporaneously with, the execution of this Agreement. 3.3. Release of All Claims and Disputes and Covenant Not to Sue. Gonzalez, for himself and on behalf of his attorneys, heirs, assigns, successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, FOREVER DISCHARGES, AND COVENANTS NOT TO SUE the City and its employees, agents, attorneys, insurers, and council members, in their official and individual capacities, including their successors and assigns, and any other person or entity who or which may be liable through or on behalf of the City,from and for any and all claims,complaints,obligations, promises, agreements, causes of action, debts, demands, costs, losses, damages, and expenses (including, without limitation, attorney's fees) whatsoever, pleaded or not pleaded, other than any arising from a breach of this Agreement, under any municipal, local, state, or federal law, Release and Covenant Not to Sue Page 3 of 8 common or statutory, for any actions or omissions whatsoever, whether known or unknown, fixed or contingent, liquidated or unliquidated, specifically including, but not limited to, any claim Gonzalez may have against the City regarding his terminal leave benefits or the Lawsuit, which existed or may or could have existed prior to,or contemporaneously with,the execution of this Agreement. 3.4. Dismissal Documents. The parties agree to the entry of a stipulation and order of dismissal ("the Dismissal Documents") dismissing all claims and counterclaims in the Lawsuit with prejudice. The Parties agree to sign the Dismissal Documents, through their respective attorneys, contemporaneously with his execution of this Agreement and the City agrees to file the signed Dismissal Documents within five days of the execution date. 3.5. Taxes. The Parties will report, as may be required by law, their respective payment and receipt of the amounts described herein.Each party shall bear his or its respective tax liability, if any, arising from the payments made pursuant to the terms of this Agreement. Gonzalez acknowledges that that the City has made no representations to him regarding the tax consequences of any amount or benefit given or received by him pursuant to the terms of this Agreement. 3.6. No Admission of Liability. Both Parties understand and agree that this Agreement is made for the sole purpose of resolving the differences between the Parties. Each Party specifically disclaims any liability to the other,and this Agreement shall not,in any way, be construed as an admission of liability by either Party. 3.7. Entire Agreement. The Parties agree that this Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements, arrangements, or Release and Covenant Not to Sue Page 4 of 8 undertakings between the Parties relating to the subject matter. No oral understandings, statements, promises, or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed orally, and any changes or amendments must be signed by all Parties affected by the change or amendment. 3.8. Governing Law. It is understood and agreed that this Agreement shall be governed by and construed and enforced in accordance with, and subject to, the laws of the State of Texas. 3.9. Counterparts. It is understood and agreed that this Agreement may be executed in multiple originals and/or counterparts, each of which shall be deemed an original for all purposes, but all such counterparts together shall constitute one and the same instrument. 3.10. Headings. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement. 3.11. Severability.. If any section, paragraph, sentence, clause, or phrase contained in this Agreement shall become illegal, null, or void, or shall be found to be against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null, or void, or against public policy, the remaining sections, paragraphs, sentences, clauses, or phrases contained in this Agreement shall not be affected thereby. Furthermore, in lieu of each such section,paragraph,sentence, clause, or phrase, there shall be added automatically as a part of this Agreement another section, paragraph,sentence,clause,or phrase as similar as may be possible which is legal,valid,and enforceable. Release and Covenant Not to Sue Page 5 of 8 3.12. Waiver. The waiver of any breach of any provision hereunder by any Party to this Agreement shall not be deemed to be a waiver of any preceding or subsequent breach hereunder. 3.13. Representations. The Parties hereto, and their authorized agents or representatives, if any, hereby acknowledge and expressly warrant and represent, for themselves and for their predecessors, successors, assigns, heirs, executors, administrators, and legal representatives, that they (a) are legally competent and authorized to execute this Agreement; (b) have not assigned, pledged, or otherwise in any manner, sold or transferred, either by instrument in writing or otherwise, any right, title, interest, or claim that the Party may have by reason of any matter described in this Agreement; (c) have read and understand the effect of this Agreement; (d) are or have had the opportunity to be represented by independent legal counsel of their choice; (e) have received all additional information requested prior to executing this Agreement; (f) execute this Agreement of their free will and accord for the purposes and consideration set forth herein, without reliance upon any statement, representation, or inducement of any other Party or person not contained herein; (g) have the full right and authority to enter into this Agreement and to consummate the transfers and assignments contemplated herein; (h) are authorized to sign this Agreement on behalf of any of the Parties hereto; and (i) will execute and deliver such further documents and undertake such further actions as may reasonably be required to effect any of the agreements and covenants in this Agreement. 3.14. Acknowledeements. By executing this Agreement, Gonzalez acknowledges that (a) he has been advised in writing to consult with an attorney before executing this Release and Covenant Not to Sue Page 6 of 8 Agreement; (b) any and all questions regarding the terms of this Agreement have been asked and answered to his complete satisfaction;(c)he has read this Agreement and fully understands its terms and their import; (d) the consideration provided for herein for the dismissal of his counterclaims is good and valuable; and (e) he is entering into this Agreement voluntarily, of his own free will, and without any coercion, undue influence, threat, or intimidation of any kind whatsoever. EXECUTED this day of 1610, C�kW�5V , 2019. Fernando Gonzalez THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned Notary Public, on this day personally appeared Fernando Gonzalez, a person whose identity is known to me, and acknowledged to me that he has read the foregoing Release and Covenant Not to Sue, and that he executed the same for the purposes and consideration expressed therein. nth GIVEN UNDER MY HAND AND SEAL OF OFFICE on the day of J a 9 Trlsh Barbee * My Commission Expires 06/02/2019 Not blic Sta e of Texas APPROVED AS TO FORM: qf a Attorney for lernando Gonza14 OFFICIAL RECORD CITY SECRETARY Release and Covenant Not to Sue FT. WOR1'Wf EXECUTED this day of j , 2019. ,,CITY OF FORT WORTH Atte by: �- o ........ .., �G _ `' ;--�y:_ f'' cam✓ �c,�,�-� Ma J. a , S c' t *ft; Su lanis f:N Assistant City Manager THE STATE OF TEXAS COUNTY OF TARRANT § BEFORE ME, the undersigned Notary Public, on this day personally appeared Susan Alanis, a person whose identity is known to me, and acknowledged to me that she is an Assistant City Manager for the City of Fort Worth, that she is duly authorized to execute this Agreement, and that she has executed the Agreement in the name of and on behalf of the City of Fort Worth in said capacity for the purposes and consideration expressed therein. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the day of 2019. r &ota#Public, 9tate of Texas APPROVED AS TO FORM: MARIA S.SANCHEZ to hen . umbie ' q My Notary ID#2,1-2756490 4 N'�F of 1�4r: Expires December 19,2021 orney for City of Fort Worth Contract Compliance Manager: By signing, I acknowledge that I am responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. ovt:' Nathan Gregory Assistant Human Resources Director Release and Covenant Not to Sue Page 8 of 8