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HomeMy WebLinkAboutContract 48893_� �� n, � �; _��-: , � -. REC�N�O , ';.�� i � �} ry� i_ ; Ci� ��S� R� P� ; G1iy , C�� ��C�� ^ �� ! `� RELEASE AND �QN��Y N0, a COVENANT NOT TO SUE THIS RELEASE AND COVENANT NOT TO SUE is made and entered into by and between Lana Vilmain and the City of Fort Worth, Texas. ARTICLE I - DEFINITIONS As used in this Agreeinent, the tollowing terms shali have the definition indicated in this Article. 1.1. "Agreement" shall mean this Release and Covenant Not to Sue. 1.2. "Vilmain" shall mean Lana J. Vilmain. "City" or "the City" shall mean the City of Fort Worth. "Parties" shall mean Vilmain and the City, collectively. "Party" shall mean Vilmain or the City, individually. ARTICLE II - RECITALS AND PURPOSE Vilmain is employed by the City as a Senior HR Analyst. City employees who have been members of the Fort Worth Employees' Retirement Fund for five years or more are entitled to the benefits of the City's pension plan ("the vesting period"). Vilmain has been a member of the Fund since June 18, 2012; if her einployinent does not terminate before June 18, 2017, Vilmain's rights under the plan will vest on June 19, 2017 ("Vilmain's vesting date"). Under the tenns of this Agreement, Vilmain's employment with the City will end on June 19, 2017. � _=-�_ _�— � -- t��I�ICMAG, RE�ORD CI`(11' ��G�B'��lRV- �i'�'IMtti�"�� � — __ � - -= ----_= __ � RELEASE AND COVENANT NOT TO SUE PAGE 1 � / 2.3. 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 Vilmain's promises and covenants herein, unless Vilmain revokes the Agreement as provided in paragraph 3.7 herein, the City hereby grants Vilmain's request to extend her medical leave of absence that expired February 20, 2017, and the City promises to employ her until June 19, 2017, under the conditions described in paragraph 3.6, at which time Vilmain's employment will terminate. The City acknowledges that Vilmain's vesting date is June 19, 2017, and further promises and agrees that it will make no changes to the Retirement Fund vesting period that will affect Vilmain's vesting date of June 19, 2017. Vilmain agrees that she has no right to employment through June 19, 2017, and that the City's promise to continue her employment is sufficient consideration for the promises and covenants made by her in this Agreement. Further, Vilmain acknowledges that this is a complete and final release and that no further consideration will be provided to her on account of any cause of action or claim she may have against the City. The Parties acknowledge that any accrued leave balances, continued health-care coverage, RELEASE AND COVENANT NOT TO SUE PAGE 2 and retirement benefits will be paid, credited, or provided to Vilmain in accordance with City policy or federal, state, or local law in effect on the date of her termination. 3.2. Release of All Claims and Disputes and Covenant Not to Sue. Vilmain, for herself and on behalf of her attorneys, heirs, assigns, successors, executors, and administrators, IRREVOCABLY AND tJNCONDITIONALLY RELEASES, ACQUITS, FORE VER DISCHARUES, 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, pled or unpled, 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 lcnown or unknown, fixed or contingent, liquidated or unliquidated, specifically including, but not limited to, any claim Vilmain may have against the City regarding her employment or the termination of her employment, including any right Vilmain may have to appeal the termination of her employment, if any, which existed or may or could have existed prior to, or contemporaneously with, the execution of this Agreement, including, but in no way limited to, claims brought pursuant to the United States and Texas Constitutions, the Texas Government Code, the Texas Labor Code, the Texas Commission on Human Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the RELEASE AND COVENANT NOT TO SUE PAGE 3 Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983. 3.3. Unemployment Claims. The City acknowledges that Vilmain may file a claim for unemployment benefits with the Texas Workforce Commission. The City agrees not to contest any such claim, provided that Vilmain does not have any other employment between the date her employment with the City ends and the date a claim for unemployment benefits is filed. 3.4. Confidentialitv A�reement. Except as required by law, Vilmain agrees not to disclose, discuss, or publish in any way, including on social media (for example, Faceboolc and Twitter), the circumstances of this settlement and/or the subject matter of her claims against the City, if any, that she is releasing in this Agreement, EXCEPT that she may disclose the exact wording of this Release and Covenant Not to Sue, and EXCEPT that she is permitted to discuss the Agreement with her immediate family, her financial advisors, her attorney, and representatives of the Fort Worth Employees' Retirement Fund. Vilmain understands and agrees that, if she breaches the terms of this paragraph, she shall pay to the City liquidated damages as described in paragraph 3.5 of this Agreement. 3.5. Liquidated Dama�es. Vilmain acknowledges that if she breaches any term of this Agreement the violation shall be considered a material breach of the Agreement, and the City shall have the right to file an action against her and pursue ail available legal or equitable remedies (including attorney's fees and costs) for the breach. Vilmain agrees that if she breaches the provisions of paragraph 3.4 above she shall pay to RELEASE AND COVENANT NOT TO SUE PAGE 4 the City as liquidated damages $5,000.00, the sum being agreed by the Parties to be the amount of damages the City shall incur in the event of a breach of that provision. 3.6. Vilmain's Continued Employment. Vilmain is currently unable to work due to her medical condition. Until she is released to return to work, Vilmain's absences will be charged to her appropriate leave balances, if any. If Vilmain's absences exceed her leave balances, she will be in a without-pay status. If Vilmain is released to return to work before June 19, 2017, Vilmain will be placed in a special assignment that wili allow her to work off-site, including from her home, reporting to Nathan Gregory, though Vilmain may be periodically required to attend meetings at City Hall or other City locations in order to complete her assigned duties. It is anticipated that the assignments she will receive wiil be within her qualifications, and she will be expected to perform her duties in a timely and competent manner. Any questions Vilmain has regarding her assignments must be directed to Nathan Gregory unless Gregory directs otherwise. During her continued employment, Vilmain continues to enjoy the benefits due her as a City employee; further, she agrees to comply with the City's work rules, and she acknowledges that she will be subject to disciplinary action, up to and including � termination, for policy violations. Vilmain is prohibited from working more than 40 hours in any workweek. During any workweek in which Vilmain works fevver than 40 hours, in accordance with City policy and practice, Vilmain's appropriate leave balances will be deducted. On Thursday of every week, Vilmain will report her hours worked and the reasons for any absences to RELEASE AND COVENANT NOT TO SUE PAGE 5 Nathan Gregory for recording in the payroli system. Vilmain will continue to receive paid holidays and accrue other employment benefits. She will not be allowed to earn compensatory time. If Vilmain accepts new employment or enters into an independent contractor relationship with another person or entity before June 19, 2017, her employment with the City will end on the date she starts the other job or the effective date of any independent contract position she accepts. Vilmain will not be permitted to work a second job during the time she is employed by the City. 3.7. Revocation Period and Notice. Vilmain acknowledges that she has been given at least twenty-one (21) days to consider this Agreement, and that she may revoke this Agreement by providing written notice of the revocation to Brian Dickerson, HR Director, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, within seven (7) days after she executes the Agreement ("the Revocation Period"). The Parties agree and acknowledge that this Agreement shall not become effective or enforceable until the expiration of the Revocation Period. 3.$. No Admission of Liability. Vilmain understands and agrees that this Agreement is made for the sole purpose of resolving the differences between the Parties. The City specifically disclaims any liability to Vilmain, and this Agreement shall not, in any way, be construed as an admission of liability by the City. 3.9. Entire Agreement. The Parties agree that this Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements, arrangements, or undertakings between the Parties relating to the subject matter. No oral RELEASE AND COVENANT NOT TO SUE PAGE 6 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. 3.10. Governin� 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, to the extent not preempted by federal law. 3.11. Counterparts. It is understood and agreed that this Agreement may be executed in multiple originals and/or counterparts, each of which shali be deemed an original for all purposes, but all such counterparts together shall constitute one and the same instrument. 3.12. Headin�s. The headings of this Agreement are for purposes of reference only and shali not limit or define the meaning of the provisions of this Agreement. 3.13. Severability. If any section, paragraph, sentence, clause, or phrase contained in this Agreement shall become illegal, null, or void, or shail be found to be against public policy, for any reason, or shall be held by any court of competent jurisdiction to be iliegal, 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 7 r 3.14. 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. 3.15. 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 ail additional information requested prior to executing this Agreement; (� 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 Agreeinent. RELEASE AND COVENANT NOT TO SUE PAGE 8 3.16. Acknowled�ements. By executing this Agreement, Vilmain acknowledges that (a) she has been advised in writing to consult with an attorney before executing this Agreement; (b) she has been given a reasonable time to consider this Agreement; (c) any and all questions regarding the terms of this Agreement have been aslced and answered to her complete satisfaction; (d) she has read this Agreement and fully understands its terms and their import; (e) except as provided by this Agreeinen�, she has no contractual right or claim to the benefits described herein; (� the consideration provided for herein is good and valuable; and (g) she is entering into this Agreement voluntarily, of her own free will, and without any coercion, undue influence, threat, or intimidation of any kind or type whatsoever. EXECUTED this THE STATE OF TEXAS �`� �`l da of �� y � , r�J , 2017. , COUNTY OF � . ; � �, � ' �? Lana Vi�inain BEFORE ME, tne t�ndersi�n��d �'d�tary P�ar?ic; on �}iis da;� ��rsoi.ally appeared Lana Vilmain, a person whose identity is lcnown to me, and acicnowledged to me that she has read the foregoing Release and Covenant Not to Sue, and that she executed the same for the purposes and consideration therein expressed. GIVEN UNIDER MY HAND AND SEAL OF OFFICE on the ��/V .�i�(., day of � � , 2017. • ���� "U� I<ARA� LUGO +��' ��` �� Ne#�ry P�blic �' 1'��,��," �` State of Texas ��FoF`���` My Comm. Expires 01-15-2018 Notary Public, S RELEASE AND COVENANT NOT TO SUE p I (i�;s � iv EXECUTED this � day of � �� , 2017. THE STATE OF TEXAS COUNTY OF TARRANT v � CITY OF FORT WORTH �. _ ._ -� B �:: ����l��.L���---��ti��,�vi� Y• �Sus� Alanis, Assistant City Manager BEFORE ME, the undersigned Notary Public, 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 executed the Agreement in the name of and on behalf of the City of Fot-t Worth in said capacity, for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the _���.day of 2017. MARIA S SANCHEZ My Commission Expires December 19, 2017 Not y Public, tate of Texas At�� b�p �/� � ��2„c-f",� ��,/� �-/ .�-� � ;`�, � � ,. Carolyrf�IcFatridge, Attorney for City of Foi�t Worth Contract Compliance Manager By signing I acicnowledge that I am the person responsible for the monitoring and adininistration of this contract, including ensuring all perforinance and reporting requireinents. , ,� ��"� � ,;,� �athan Gregdry, A�ssistant Director/Human Resources �FFICiAL R����n CITIf SECREI'p��r �i: �I1�1�`N, TX �-��r� ---- RELEASE AND COVENANT NOT TO SUE PAGE 10