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HomeMy WebLinkAboutContract 48665Dt Y SECRETARY MEfM GTNO, RELEASE AND COVENANT NOT TO SUE. THIS RELEASE AND COVENANT NOT TO SUE is made and entered into by and between Arthur Bashor and the City of Fort Worth, Texas. ARTICLE 3 a 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. "Bashor" shall mean Arthur N. Bashor. 1.3. "City" or "the City" shall mean the City of Fort Worth. 1.4. "Parties" shall mean Bashor and the City, collectively. 44 0."4-.,” at.A11 an. T1a.rLaa a L.La / •'J._ _1__ _ 11 CU. Ly r ataiall mciatt EntsuUr Ul mu tiny, inuiviuuaiiy. ARTICLE II - RECITALS AND PURPOSE 2.1. Bashor was employed by the City from March 2, 2009, until February 6, 2017, as Assistant City Attorney 1. The Parties have mutually agreed to an amicable separation of employment on the terms contained herein. 2.2. In the manner set forth herein, the City and Bashor desire to settle any and all claims or controversies between them and therefore Basher has offered to voluntarily terminate his employment with the City under certain terms and conditions as set forth therein. The City, without any admission of liability regarding the claims of Bashor, has accepted Bashor's offer and enters into this agreement for the sole purpose of resolving this matter in order to avoid the expense of litigation. RELEASE AND COVENANT NOT TO SUE OFFICIAL RECORD CITY SECRETARY PAG iTH, TX 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 Bashor's promises and covenants herein, unless Bashor revokes the Agreement as provided in paragraph 3.10 herein ("the revocation period"), the City agrees to pay to Bashor the sum of SIXTEEN THOUSAND AND NO/100 DOLLARS ($16,000.00) as compensatory damages, and not as wages or back pay. This amount shall be payable in two checks, one payable to Arthur N. Bashor in the amount of TWELVE THOUSAND NINE HUNDRED EIGHTY AND NO/100 DOLLARS ($12,980.00) and a second check payable to the Law Offices of Edith K. Thomas, PLLC in the amount of THREE THOUSAND TWENTY AND NO/100 DOLLARS ($3,020.00). Neither the City nor Bashor will be responsible for paying any contributions to the Fort Worth Employees' Retirement Fund on account of such payment, and the City will make no deductions from such amount for income withholding. The City shall deliver the payment to Bashor's attorney within thirty (30) calendar days after the fmal execution of this Agreement. Bashor agrees that this payment is sufficient consideration for the promises and covenants made by him in this Agreement and that, except as provided by this Agreement, he has no contractual right or legal claim to such payment. Further, Bashor acknowledges that this is a complete and final release and that no additional benefit is to be provided to him on account of any RELEASE AND COVENANT NOT TO SUE PAGE 2 cause of action or claim he may have against the City. Bashor will also be compensated in accordance with the City's policies for any unused leave or other benefits he is entitled to as of the date of his resignation, in accordance with those policies. 3.2. Release of All Claims and Disputes. Bashor, 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 any and all claims, complaints, obligations, promises, agreements, causes of action, debts, demands, costs, losses, damages, and expenses (including, without limitation, attorneys' 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, any claim arising from Bashor's employment by the City, including his separation from employment, 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, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, as amended, the Age Discrimination in RELEASE AND COVENANT NOT TO SUE PAGE 3 Employment Act of 1967, as amended, and the Older Workers Benefit and Protection Act. 3.3 Resignation. Bashor agrees to submit to the City a letter of resignation, voluntarily resigning his position with the City as an Assistant City Attorney I, effective February 6, 2017. • 3.4. Dismissal of EEOC Charge and Internal Comnlaint. Within ten days after his receipt of the payment in paragraph 3.1, Bashor will withdraw his internal complaint filed with the City's Human Resources department, and Bashor will also inform the EEOC and Texas Workforce Commission Civil Rights Division that he wishes to withdraw his Charge of Discrimination, No. 450-2017-01022, by submitting a fully - executed EEOC Form 154 to the following address, with a copy to Christopher A. Troutt, Senior Assistant City Attorney, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102: Shirley A. Richardson EEOC Dallas Regional District Director 207 South Houston Street, 3rd Floor Dallas, TX 75202 3.5. No Re-emnlovment. Bashor hereby waives and releases forever any right or rights he might have to employment, reemployment, or reinstatement with the City at any time in the future. Bashor further agrees and covenants that he will not seek employment, reemployment, or reinstatement with the City in the future. Bashor understands and agrees that, if he breaches the terms of this paragraph, he shall pay to the City liquidated damages as described in para. 3.9 of this Agreement. RELEASE AND COVENANT NOT TO SUE PAGE 4 3.6 Mutual Non -disparagement. Bashor and the City agree that they will each take no action which is intended, or would reasonably be expected, to materially harm the other party, or their respective councilmembers, agents or employees, harm the reputation of any of the foregoing persons or entities, or which would reasonably be expected to lead to unwanted or unfavorable publicity to any of the foregoing persons or entities. On the City's part, this obligation is limited to the City Attorney, and any Deputy City Attorney. 3.7. No media statements. The parties agree not to make any statement to the media regarding the claims or defenses in this case or the resolution of this matter. Bashor understands and agrees that, if he breaches the terms of this paragraph, he will be required to tender back to the City FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) as liquidated damages for his breach. Nothing in this Agreement shall prohibit Bashor from discussing the Agreement with his spouse, attorney, and tax advisors. 3.8. Confidentiality Agreement. Bashor agrees not to disclose, discuss, or publish in any way the terms or circumstances of this Agreement and/or the subject matter of the claims against the City that Bashor is releasing in this Agreement, EXCEPT as required by law (including specifically any conversations with the Texas Workforce Commission required in the event Bashor files an unemployment claim) and EXCEPT that Bashor may disclose the exact wording of this Release and Covenant Not to Sue. Bashor understands and agrees that, if he breaches the terms of this paragraph, he shall pay to the City liquidated damages as described in para. 3.9 of this Agreement. Nothing RELEASE AND COVENANT NOT TO SUE PAGE 5 in this Agreement shall prohibit Bashor from discussing the Agreement with his spouse, attorney, or tax advisors. 3.9. Liauidated Damatzes. Bashor acknowledges that if he 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 him and pursue all available legal or equitable remedies (including attorney's fee.s and costs) for the breach. Bashor agrees that if he breaches the no -reapplication and/or confidentiality provisions, he shall pay to the city as liquidated damages FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00), the sum being agreed by the Parties to be the amount of damages that the City shall incur in the event of a breach of either of those provisions. 3.10. First Amendment Rights. Nothing in this Agreement will be interpreted to limit Bashor's right, as a public citizen, to speak out on matters of public concern, except Bashor agrees that, in consideration for the benefits conferred upon him by and in this Agreement, the obligations in paragraphs 3.6, 3.7, and 3.8 do extend to the subject matter of this Agreement and his employment with the City. 3.11. Revocation Period. Bashor acknowledges that he has been given at least twenty-one (21) days to consider this Agreement, and that he may revoke this Agreement within seven days after its final execution by providing written notice of the revocation to Christopher A. Troutt, Senior Assistant City Attorney, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102. The Parties agree and acknowledge that this Agreement shall not become effective or enforceable until the expiration of the revocation period. RELEASE AND COVENANT NOT TO SUE PAGE 6 Upon the expiration of the revocation period, the termination of Bashor's employment will be coded in the City's records as Voluntary Resignation — No Reason Given. 3.12. No Admission of Liability. Bashor and the City understand and mutually agree that this Agreement is made for the sole purpose of resolving the differences between the Parties and avoid litigation costs. Bashor agrees that, by the City entering into this Agreement, the City is not admitting liability to him for any claims he has asserted, or could assert, regarding his employment with the City. Further, Bashor acknowledges and understands that the City denies that any of Bashor's claims have merit and that it is the City's belief that all of its actions were taken in good faith for legitimate, non-discriminatory and non -retaliatory reasons. The City specifically denies • any liability to Bashor and this Agreement shall not, in any way, be construed as an admission of liability by the City. 3.13. 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. 3.14. 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. Bashor acknowledges that the City has made no representations to him RELEASE AND COVENANT NOT TO SUE PAGE 7 regarding the tax consequences of any amount or benefit received by him pursuant to the terms of this Agreement. 3.15. 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. 3.16. 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. 3.17. 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. 3.18. Severabilitv. 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 8 3.19. 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. 3.20. 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 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. 3.21. Acknowledgements. By executing this Agreement, Bashor acknowledges that (a) he has been advised in writing to consult with an attorney before executing this RELEASE AND COVENANT NOT TO SUE PAGE 9 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 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 or type whatsoever. EXECUTED this 3 day of February, 2017. Arthur N. Bashor APPROVED AS TO FORM: • Edith K. Thomas Attorney for Arthur Bashor RELEASE AND COVENANT NOT TO SUE PAGE 10 THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned Notary Public, on this day personally appeared Arthur N. Bashor, 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 3 day of February, 2017. Notary Public, State of Texas _ k- a a s ®a a aa a. ANORES FLORES Notary 10 # 126564421 My Commission Expires June 20, 2020 p RELEASE AND COVENANT NOT TO SUE PAGE 11 a-^1 tr� EXECUTED this , I day �'Yof February, 2017. �. CITY OF FORT WORTH r B y . I y/! �l..r" -Jr/� /� yZ/;�'• David,Cooke, City Manager THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned Notary Public, personally appeared David Cooke, a person whose identity is known to me, and acknowledged to me that he is the 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 therein expressed. GIVEN I UNDER - SEAL�' � R M Y D AND OF OFFICE on the 1 day of February, 2017. •;ay ASi LINDA M. HIRRLINGER ea °• • •ch r Notary Public, State of Texas 441.• .l�•�+� Comm. Expires 02-02-2018 10'�111i1°�;00 Notary ID 124144 74-6 APPROVED AS TO FORM: r 1-7 j' Christopher A. Troutt Senior Assistant City Attorney • b Mary L Kaye eity SO© • • RELEASE AND COVENANT NOT TO S Uirko, //in IEW-i Notar9 Public, State of Texas OFFICIAL RECORD CITY SECRETARY c WORTH, TX 71=- PAGE 12 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. • ozeC Name of Employee Title LD/7 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all . erformance and reporting requirements Name of Employee 7___ /‘-L/7 Title RELEASE AND COVENANT NOT TO SUE THIS RELEASE AND COVENANT NOT TO SUE is made and entered into by and between Arthur Bashor 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. "Bashor" shall mean Arthur N. Bashor. 1.3. "City" or "the City" shall mean the City of Fort Worth. 1.4. "Parties" shall mean Bashor and the City, collectively. 1.5. "Party" shall mean Bashor or the City, individually. ARTICLE II - RECITALS AND PURPOSE 2.1. Bashor was employed by the City from March 2, 2009, until February 6, 2017, as Assistant City Attorney I. The Parties have mutually agreed to an amicable separation of employment on the terms contained herein. 2.2. In the manner set forth herein, the City and Bashor desire to settle any and all claims or controversies between them and therefore Basher has offered to voluntarily terminate his employment with the City under certain terms and conditions as set forth therein. The City, without any admission of liability regarding the claims of Bashor, has accepted Bashor's offer and enters into this agreement for the sole purpose of resolving this matter in order to avoid the expense of litigation. RELEASE AND COVENANT NOT TO SUE PAGE 1 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 Bashor's promises and covenants herein, unless Bashor revokes the Agreement as provided in paragraph 3.10 herein ("the revocation period"), the City agrees to pay to Bashor the sum of SIXTEEN THOUSAND AND NO/100 DOLLARS ($16,000.00) as compensatory damages, and not as wages or back pay. This amount shall be payable in two checks, one payable to Arthur N. Bashor in the amount of TWELVE THOUSAND NINE HUNDRED EIGHTY AND NO/100 DOLLARS ($12,980.00) and a second check payable to the Law Offices of Edith K. Thomas, PLLC in the amount of THREE THOUSAND TWENTY AND NO/100 DOLLARS ($3,020.00). Neither the City nor Bashor will be responsible for paying any contributions to the Fort Worth Employees' Retirement Fund on account of such payment, and the City will make no deductions from such amount for income withholding. The City shall deliver the payment to Bashor's attorney within thirty (30) calendar days after the final execution of this Agreement. Bashor agrees that this payment is sufficient consideration for the promises and covenants made by him in this Agreement and that, except as provided by this Agreement, he has no contractual right or legal claim to such payment. Further, Bashor acknowledges that this is a complete and final release and that no additional benefit is to be provided to him on account of any RELEASE AND COVENANT NOT TO SUE PAGE 2 cause of action or claim he may have against the City. Bashor will also be compensated in accordance with the City's policies for any unused leave or other benefits he is entitled to as of the date of his resignation, in accordance with those policies. 3.2. Release of All Claims and Disputes. Bashor, 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 any and all claims, complaints, obligations, promises, agreements, causes of action, debts, demands, costs, losses, damages, and expenses (includmg, without limitation, attorneys' 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, any claim arising from Bashor's employment by the City, including his separation from employment, 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, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, as amended, the Age Discrimination in RELEASE AND COVENANT NOT TO SUE PAGE 3 Employment Act of 1967, as amended, and the Older Workers Benefit and Protection Act. 3.3 Resignation. Bashor agrees to submit to the City a letter of resignation, voluntarily resigning his position with the City as an Assistant City Attorney I, effective February 6, 2017. 3.4. Dismissal of EEOC Charge and Internal Complaint. Within ten days after his receipt of the payment in paragraph 3.1, Bashor will withdraw his internal complaint filed with the City's Human Resources department, and Bashor will also inform the EEOC and Texas Workforce Commission Civil Rights Division that he wishes to withdraw his Charge of Discrimination, No. 450-2017-01022, by submitting a fully - executed EEOC Form 154 to the following address, with a copy to Christopher A. Troutt, Senior Assistant City Attorney, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102: Shirley A. Richardson EEOC Dallas Regional District Director 207 South Houston Street, 3rd Floor Dallas, TX 75202 3.5. No Re-employment. Bashor hereby waives and releases forever any right or rights he might have to employment, reemployment, or reinstatement with the City at any time in the future. Bashor further agrees and covenants that he will not seek employment, reemployment, or reinstatement with the City in the future. Bashor understands and agrees that, if he breaches the terms of this paragraph, he shall pay to the City liquidated damages as described in para. 3.9 of this Agreement. RELEASE AND COVENANT NOT TO SUE PAGE 4 3.6 Mutual Non-disaaraaement. Bashor and the City agree that they will each take no action which is intended, or would reasonably be expected, to materially harm the other party, or their respective councilmembers, agents or employees, harm the reputation of any of the foregoing persons or entities, or which would reasonably be expected to lead to unwanted or unfavorable publicity to any of the foregoing persons or entities. On the City's part, this obligation is limited to the City Attorney, and any Deputy City Attorney. 3.7. No media statements. The parties agree not to make any statement to the media regarding the claims or defenses in this case or the resolution of this matter. Bashor understands and agrees that, if he breaches the terms of this paragraph, he will be required to tender back to the City FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) as liquidated damages for his breach. Nothing in this Agreement shall prohibit Bashor from discussing the Agreement with his spouse, attorney, and tax advisors. 3.8. Confidentiality Agreement. Bashor agrees not to disclose, discuss, or publish in any way the terms or circumstances of this Agreement and/or the subject matter of the claims against the City that Bashor is releasing in this Agreement, EXCEPT as required by law (including specifically any conversations with the Texas Workforce Commission required in the event Bashor files an unemployment claim) and EXCEPT that Bashor may disclose the exact wording of this Release and Covenant Not to Sue. Bashor understands and agrees that, if he breaches the terms of this paragraph, he shall pay to the City liquidated damages as described in para. 3.9 of this Agreement. Nothing RELEASE AND COVENANT NOT TO SUE PAGE 5 in this Agreement shall prohibit Bashor from discussing the Agreement with his spouse, attorney, or tax advisors. 3.9. Liquidated Damages. Bashor acknowledges that if he 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 him and pursue all available legal or equitable remedies (including attorney's fees and costs) for the breach. Bashor agrees that if he breaches the no -reapplication and/or confidentiality provisions, he shall pay to the city as liquidated damages FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00), the sum being agreed by the Parties to be the amount of damages that the City shall incur in the event of a breach of either of those provisions. 3.10. First Amendment Rights. Nothing in this Agreement will be interpreted to limit Bashor's right, as a public citizen, to speak out on matters of public concern, except Bashor agrees that, in consideration for the benefits conferred upon him by and in this Agreement, the obligations in paragraphs 3.6, 3.7, and 3.8 do extend to the subject matter of this Agreement and his employment with the City. 3.11. Revocation Period. Bashor acknowledges that he has been given at least twenty-one (21) days to consider this Agreement, and that he may revoke this Agreement within seven days after its final execution by providing written notice of the revocation to Christopher A. Troutt, Senior Assistant City Attorney, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102. The Parties agree and acknowledge that this Agreement shall not become effective or enforceable until the expiration of the revocation period. RELEASE AND COVENANT NOT TO SUE PAGE 6 Upon the expiration of the revocation period, the termination of Bashor's employment will be coded in the City's records as Voluntary Resignation — No Reason Given. 3.12. No Admission of Liability. Bashor and the City understand and mutually agree that this Agreement is made for the sole purpose of resolving the differences between the Parties and avoid litigation costs. Bashor agrees that, by the City entering into this Agreement, the City is not admitting liability to him for any claims he has asserted, or could assert, regarding his employment with the City. Further, Bashor acknowledges and understands that the City denies that any of Bashor's claims have merit and that it is the City's belief that all of its actions were taken in good faith for legitimate, non-discriminatory and non -retaliatory reasons. The City specifically denies any liability to Bashor and this Agreement shall not, in any way, be construed as an admission of' liability by the City. 3.13. 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. 3.14. 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. Bashor acknowledges that the City has made no representations to him RELEASE AND COVENANT NOT TO SUE PAGE 7 regarding the tax consequences of any amount or benefit received by him pursuant to the terms of this Agreement. 3.15. 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. 3.16. 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. 3.17. 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. 3.18. Severabilitv. 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 8 3.19. 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. 3.20. 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 ottransferred, 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 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. 3.21. Acknowledgements By executing this Agreement, Bashor acknowledges that (a) he has been advised in writing to consult with an attorney before executing this RELEASE AND COVENANT NOT TO SUE PAGE 9 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 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 or type whatsoever. EXECUTED this 3 day of February, 2017. Arthur N Bashor APPROVED AS TO FORM: Edith K. Thomas Attorney for Arthur Bashor RELEASE AND COVENANT NOT TO SUE PAGE 10 THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned Notary Public, on this day personally appeared Arthur N. Bashor, 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 3 day of February, 2017. Notary Public, State of Texas _ ....... a a a .' ANDRES FLORES Notary ID # 126564421 My Commission Expires June 201 2020 RELEASE AND COVENANT NOT TO SUE PAGE 11' r7 EXECUTED this day of February, 2017. CITY OF FORT WORTH By: David Cooke, City Manager THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned Notary Public, personally appeared David Cooke, a person whose identity is known to me, and acknowledged to me that he is the 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 therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the 4)day of February, 2017. 011111101 o.• a.• =_• t�oa .• - - �N�• :cot��• ••..•• .fir$* et / 0111 wt`•% • • • •I LINDA M. HIRRLINGER : Notary Public, State of Texas Comm. Expires 02-02-2018 Notary ID 12414474-6 • • • I • .u.. APPROVED AS TO FORM: (://e5/6)( Christopher A. Troutt Senior Assistant City Attorney thil>lill Public, State of Texas RELEASE AND COVENANT NOT TO SUE PAGE 12 RELEASE AND COVENANT NOT TO SUE THIS RELEASE AND COVENANT NOT TO SUE is made and entered into by and between Arthur Bashor 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. "Bashor" shall mean Arthur N. Bashor. 1.3. "City" or "the City" shall mean the City of Fort Worth. 1.4. "Parties" shall mean Bashor and the City, collectively. 1.5. "Party" shall mean Bashor or the City, individually. ARTICLE II - RECITALS AND PURPOSE 2.1. Bashor was employed by the City from March 2, 2009, until February 6, 2017, as Assistant City Attorney I. The Parties have mutually agreed to an amicable separation of employment on the terms contained herein. 2.2. In the manner set forth herein, the City and Bashor desire to settle any and all claims or controversies between them and therefore Basher has offered to voluntarily terminate his employment with the City under certain terms and conditions as set forth therein. The City, without any admission of liability regarding the claims of Bashor, has accepted Bashor's offer and enters into this agreement for the sole purpose of resolving this matter in order to avoid the expense of litigation. RELEASE AND COVENANT NOT TO SUE PAGE 1 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 Bashor's promises and covenants herein, unless Bashor revokes the Agreement as provided in paragraph 3.10 herein ("the revocation period"), the City agrees to pay to Bashor the sum of SIXTEEN THOUSAND AND NO/100 DOLLARS ($16,000.00) as compensatory damages, and not as wages or back pay. This amount shall be payable in two checks, one payable to Arthur N. Bashor in the amount of TWELVE THOUSAND NINE HUNDRED EIGHTY AND NO/100 DOLLARS ($12,980.00) and a second check payable to the Law Offices of Edith K. Thomas, PLLC in the amount of THREE THOUSAND TWENTY AND NO/100 DOLLARS ($3,020.00). Neither the City nor Bashor will be responsible for paying any contributions to the Fort Worth Employees' Retirement Fund on account of such payment, and the City will make no deductions from such amount for income withholding. The City shall deliver the payment to Bashor's attorney within thirty (30) calendar days after the fmal execution of this Agreement. Bashor agrees that this payment is sufficient consideration for the promises and covenants made by him in this Agreement and that, except as provided by this Agreement, he has no contractual right or legal claim to such payment. Further, Bashor acknowledges that this is a complete and final release and that no additional benefit is to be provided to him on account of any RELEASE AND COVENANT NOT TO SUE PAGE 2 cause of action or claim he may have against the City. Bashor will also be compensated in accordance with the City's policies for any unused leave or other benefits he is entitled to as of the date of his resignation, in accordance with those policies. 3.2. Release of All Claims and Disputes Bashor, 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 any and all claims, complaints, obligations, promises, agreements, causes of action, debts, demands, costs, losses, damages, and expenses (including, without limitation, attorneys' 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, any claim arising from Bashor's employment by the City, including his separation from employment, 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, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, as amended, the Age Discrimination in • RELEASE AND COVENANT NOT TO SUE PAGE 3 Employment Act of 1967, as amended, and the Older Workers Benefit and Protection Act., 3.3 Resignation. Bashor agrees to submit to the City a letter of resignation, voluntarily resigning his position with the City as an Assistant City Attorney I, effective February 6, 2017. 3.4. Dismissal of EEOC Charge and Internal Complaint. Within ten days after his receipt of the payment in paragraph 3.1, Bashor will withdraw his internal complaint filed with the City's Human Resources department, and Bashor will also inform the EEOC and Texas Workforce Commission Civil Rights Division that he wishes to withdraw his Charge of Discrimination, No. 450-2017-01022, by submitting a fully - executed EEOC Form 154 to the following address, with a copy to Christopher A. Troutt, Senior Assistant City Attorney, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102: Shirley A. Richardson EEOC Dallas Regional District Director 207 South Houston Street, 3rd Floor Dallas, TX 75202 3.5. No Re-employment. Bashor hereby waives and releases forever any right or rights he might have to employment, reemployment, or reinstatement with the City at any time in the future. Bashor further agrees and covenants that he will not seek employment, reemployment, or reinstatement with the City in the future. Bashor understands and agrees that, if he breaches the terms of this paragraph, he shall pay to the City liquidated damages as described in para. 3.9 of this Agreement. RELEASE AND COVENANT NOT TO SUE PAGE 4 3.6 Mutual Non-disaaragement. Bashor and the City agree that they will each take no action which is intended, or would reasonably be expected, to materially harm the other party, or their respective councilmembers, agents or employees, harm the reputation of any of the foregoing persons or entities, or which would reasonably be expected to lead to unwanted or unfavorable publicity to any of the foregoing persons or entities. On the City's part, this obligation is limited to the City Attorney, and any Deputy City Attorney. 3.7. No media statements. The parties agree not to make any statement to the media regarding the claims or defenses in this case or the resolution of this matter. Bashor understands and agrees that, if he breaches the terms of this paragraph, he will be required to tender back to the City FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) as liquidated damages for his breach. Nothing in this Agreement shall prohibit Bashor from discussing the Agreement with his spouse, attorney, and tax advisors. 3.8. Confidentiality Anreement. Bashor agrees not to disclose, discuss, or publish in any way the terms or circumstances of this Agreement and/or the subject matter of the claims against the City that Bashor is releasing in this Agreement, EXCEPT as required by law (including specifically any conversations with the Texas Workforce Commission required in the event Bashor files an unemployment claim) and EXCEPT that Bashor may disclose the exact wording of this Release and Covenant Not to Sue. Bashor understands and agrees that, if he breaches the terms of this paragraph, he shall pay to the City liquidated damages as described in para. 3.9 of this Agreement. Nothing RELEASE AND COVENANT NOT TO SUE PAGE 5 in this Agreement shall prohibit Bashor from discussing the Agreement with his spouse, attorney, or tax advisors. 3.9. Liquidated Damages Bashor acknowledges that if he 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 him and pursue all available legal or equitable remedies (including attorney's fees and costs) for the breach. Bashor agrees that if he breaches the no -reapplication and/or confidentiality provisions, he shall pay to the city as liquidated damages FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00), the sum being agreed by the Parties to be the amount of damages that the City shall incur in the event of a breach of either of those provisions. 3.10. First Amendment Rights. Nothing in this Agreement will be interpreted to limit Bashor's right, as a public citizen, to speak out on matters of public concern, except Bashor agrees that, in consideration for the benefits conferred upon him by and in this Agreement, the obligations in paragraphs 3.6, 3.7, and 3.8 do extend to the subject matter of this Agreement and his employment with the City. 3.11. Revocation Period Bashor acknowledges that he has been given at least twenty-one (21) days to consider this Agreement, and that he may revoke this Agreement within seven days after its final execution by providing written notice of the revocation to Christopher A. Troutt, Senior Assistant City Attorney, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102. The Parties agree and acknowledge that this Agreement shall not become effective or enforceable until the expiration of the revocation period. RELEASE AND COVENANT NOT TO SUE PAGE 6 Upon the expiration of the revocation period, the termination of Bashor's employment will be coded in the City's records as Voluntary Resignation — No Reason Given. 3.12. No Admission of Liability. Bashor and the City understand and mutually agree that this Agreement is made for the sole purpose of resolving the differences between the Parties and avoid litigation costs. Bashor agrees that, by the City entering into this Agreement, the City is not admitting liability to him for any claims he has asserted, or could assert, regarding his employment with the City. Further, Bashor acknowledges and understands that the City denies that any of Bashor's claims have merit and that it is the City's belief that all of its actions were taken in good faith for legitimate, non-discriminatory and non -retaliatory reasons. The City specifically denies any liability to Bashor and this Agreement shall not, in any way, be construed as an admission of liability by the City. 3.13. 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. 3.14. 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. Bashor acknowledges that the City has made no representations to him RELEASE AND COVENANT NOT TO SUE PAGE 7 regarding the tax consequences of any amount or benefit received by him pursuant to the terms of this Agreement. 3.15. 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. 3.16. 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. 3.17. 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. 3.18. 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 8 3.19. 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. 3.20. 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 of transferred, either by instrument m 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 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. 3.21. Acknowledgements By executing this Agreement, Bashor acknowledges that (a) he has been advised in writing to consult with an attorney before executing this RELEASE AND COVENANT NOT TO SUE PAGE 9 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 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 or type whatsoever. EXECUTED this 3 day of February, 2017. Arthur N. Bashor APPROVED AS TO FORM: Edith K. Thomas Attorney for Arthur Bashor RELEASE AND COVENANT NOT TO SUE PAGE 10 THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned Notary Public, on this day personally appeared Arthur N. Bashor, 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 3 day of February, 2017. Notary Public, State of Texas r t_ .sue a is a w a. a a a ANDRES FLORES Notary ID # 126564421 My Commission Expires June 20, 2020 1 W,Iii 1101 iNIW'I10,111 1410 �Iiij Ud������e�lE'Wo�� „i$ RELEASE AND COVENANT NOT TO SUE PAGE 11 EXECUTED this 7i-fln day of February, 2017. CITY OF FORT WORTH By: David,Cooke, City Manager THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned Notary Public, personally appeared David Cooke, a person whose identity is known to me, and acknowledged to me that he is the 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 therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the ) day of February, 2017. �••.evr' yr• d i a i +. LINDA M. HIRRLINGER Notary Public, State of Texas Comm. Expires 02-02-2018 Notary ID 12414474-6 APPROVED AS TO FORM: Christopher A Troutt Senior Assistant City Attorney UllkLAV th)> Jai\ yi Public, State of Texas RELEASE AND COVENANT NOT TO SUE PAGE 12