Loading...
HomeMy WebLinkAboutContract 50321 0 IVPM RM r 2 CITY SECRETARY 60 ���� CONTRACT NO._��.. 00 �aP� RELEASE AND COVENANT NOT TO SUE THIS RELEASE AND COVENANT NOT TO SUE is made and entered into by and between Phillip Cagle 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. "Cagle" shall mean Phillip Cagle. 1.3. "City" or"the City" shall mean the City of Fort Worth. 1.4. "Parties" shall mean Cagle and the City, collectively. 1.5. "Party" shall mean Cagle or the City, individually. 1.6. "Lawsuit" shall mean the action Cagle filed against the City in Cause No. 48-274691-14, in the 48th District Court, Tarrant County, Texas. ARTICLE II - RECITALS AND PURPOSE 2.1. Cagle was employed by the City from February 2008 until December 11, 2013, when he was laid off at the conclusion of the City's employment options process. Cagle filed the Lawsuit, alleging that his termination violated Chapter 21 of the Texas Labor Code. Cagle alleged that the City discriminated against him on the basis of his disability, failed to provide to him a reasonable accommodation and retaliated against him for requesting a reasonable accommodation. The City vigorously denies Cagle's RELEASE AND COVENANT NOT TO SUE PAGE 1 CITY SECRETARY FT.WORTH,TX allegations and asserts that its actions were motivated entirely by legitimate, non- discriminatory business reasons. 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 Cagle's promises and covenants herein, the City agrees to pay to Cagle the total sum of FORTY-TWO THOUSAND FIVE HUNDRED AND NO/100 ($42,500.00). The City shall deliver the payment to Cagle's attorney, in one check made payable jointly to "Phillip Cagle and his attorney, Jason C. N. Smith," within thirty (30) days after the final execution of this Agreement. Cagle agrees that this payment is sufficient consideration for the promises and covenants made by him in this Agreement. Further, Cagle acknowledges that this is a complete and final release and that no additional money is to be paid to him on account of any cause of action or claim he may have against the City. 3.2. Release of All Claims and Disputes and Covenant Not to Sue. Cagle, for himself and on behalf of his attorneys, heirs, assigns, successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, RELEASE AND COVENANT NOT TO SUE PAGE 2 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, 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 known or unknown, fixed or contingent, liquidated or unliquidated, specifically including, but not limited to, this lawsuit, any claim Cagle may have against the City regarding his employment, the termination of his employment, or any subsequent application for 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 or which could have been brought pursuant to the Texas Government Code, the Texas Local Government Code, the Texas Labor Code, the Texas Commission on Human Rights Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983. 3.3. Dismissal Documents. The parties agree to the entry of a Motion and Order of Dismissal ("the Dismissal Documents") dismissing all claims in the Lawsuit with prejudice. Cagle agrees to sign the Dismissal Documents, through his attorney, contemporaneously with his execution of this Agreement, and to file the signed Dismissal Documents within five business days after he signs this Agreement. RELEASE AND COVENANT NOT TO SUE PAGE 3 3.4. Taxes. Cagle will be responsible for the payment of taxes, if any, owed on the payment described herein in paragraph 3.1. The City will issue Cagle a Form 1099 for the full amount of the settlement for the 2018 tax year. In the event the IRS assesses taxes on Cagle for the payment described in paragraph 3.1 and Cagle fails to pay them, Cagle agrees to indemnify the City from any liability to the IRS for those unpaid taxes and any associated penalties and interest. This indemnification clause shall have the broadest scope and shall include all of the City's costs and attorneys' fees. Cagle shall immediately provide notice of any claim by any entity for unpaid taxes related to the payment set out in paragraph 3.1, by mailing a copy of the claim to the City. The Parties agree that no portion of the payment described in paragraph 3.1 is compensation for lost wages or benefits. The Parties agree that the payment described in paragraph 3.1 is for Cagle's alleged compensatory damages and attorney's fees. The Parties will report, as may be required by law, their respective payment and receipt of the amounts described herein. Cagle acknowledges that the City has made no representations to him regarding the tax consequences of any amount or benefit received by him pursuant to the terms of this Agreement. 3.5. No Admission of Liability. Cagle understands and agrees that this Agreement is made for the sole purpose of resolving the differences between the Parties. The City specifically denies and disclaims any liability to Cagle, and this Agreement shall not, in any way, be construed as an admission of liability by the City. 3.6. No Re-employment. Cagle hereby waives and releases forever any right or rights he might have to employment, reemployment, or reinstatement with the City at RELEASE AND COVENANT NOT TO SUE PAGE 4 any time in the future. Cagle further agrees and covenants that he will not seek employment, reemployment, or reinstatement with the City in the future, and that, by his signature on this Agreement, he withdraws any application for employment that he submitted to the City since December 11, 2013. Cagle understands and agrees that, if he breaches the terms of this paragraph, he will be subject to pay to the City liquidated damages in the amount set out in paragraph 3.7, below. 3.7. Liquidated damages. Cagle acknowledges that if he violates the terms of paragraph 3.6, above, the violation shall be considered a material breach of the. Agreement, and the City shall have the right to file an action against him and pursue all available legal or equitable remedies (including attorney's fees and costs) for the breach. Cagle agrees that if he breaches the provisions of paragraph 3.6, above, he shall pay to the City as liquidated damages $3750.00, 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. 3.8. 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 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. 3.9. 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, to the extent not preempted by federal law. RELEASE AND COVENANT NOT TO SUE PAGE 5 3.10. 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. 3.11. 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. 3.12. 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. 3.13. 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. 3.14. 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 RELEASE AND COVENANT NOT TO SUE PAGE 6 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. 3.15. Acknowledgements. By executing this Agreement, Cagle acknowledges that (a) he has been advised in writing to consult with an attorney before executing this Agreement; (b) he has been given a reasonable time to consider this Agreement; (c) any and all questions regarding the terms of this Agreement have been asked and answered to his complete satisfaction; (d) he has read this Agreement and fully understands its terms and their import; (e) except as provided by this Agreement, he has no contractual right or claim to the benefits described herein; (f) the consideration provided for herein is good and valuable; and (g) he is entering into this Agreement voluntarily, of his own free RELEASE AND COVENANT NOT TO SUE PAGE 7 will, and without any coercion, undue influence, threat, or intimidation of any kind or type whatsoever. EXECUTED this !l day of joQ 2018. Phi agle THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned Notary Public, on this day personally appeared Phillip Cagle, 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 therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the W7 day of rr 0O1)Ocri/ , 2018. •' susaN E.WAS Notary Public, State of Texas MY COMMISSION EXPIRES -A l D a (o a 3 Septenber moi,2019 _ 5 Boom APPROV TO ORM: Jason Smith Attorn for Phillip Cagle RELEASE AND COVENANT NOT TO SUE PAGE 8 EXECUTED this day of_ MarCli , 2018. CITY OF FORT WORTH BY 7 Pi"ietL- Fernando Costa Assistant City Manager THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned Notary Public, personally appeared Fernando Costa, a person whose identity is known to me, and acknowledged to me that he is an Assistant City Manager for the City of Fort Worth; that he is duly authorized to execute this Agreement; and that he executed the Agreement in the name of and on behalf of the City of Fort Worth in said capacity, for the purposes and consideration thlT"n, expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the/j-f_ day of , L, j, , 2018. so Notary P lic, Sta e of Texas APPROVED AS TO FORM: �.••� TRIKINYA l JOHNSON Notary Public,State of Texas Comm.Expires 04-17-2018 '•r,'taF ��, Notory ID 1238832-0 eR111111 Christopher A. Troutt Attorney for City of Fort Worth RELEASE AND COVENANT NOT TO SUE PAGE 9 q[/101. U.uj tti:U0 tit r:i 4b1lQ ART BRENDER PAGE 12/12 i Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and admitxistratiou of this contract,including ensuring all performance and reporting requirements. Deirdre O'Neal-MUls Senior Risk Management Aaslyst I b . OF Fo A y. J. K r, ity re Diary s : *► RELIBASEAND COVENANT NOT TO SO OFFICIAL RECORD PAGE 10 CITY SECRETARY FT.WORTH,TX l