HomeMy WebLinkAboutContract 61953CSC No. 61953
SETTLEMENT AGREEMENT
lbis Settlement Agreement and General Release (referred to as the "Agreement") is made
by and between the City of Fort Worth, Texas (referred to as "CFW'') and William Birchett,
residing at 4329 Baneberry Cy, Venus, TX 76084 (referred to as "Plaintiff').
WHEREAS, Plaintiff filed a lawsuit against CFW styled William Birchett v. City of Fort
Worth, Texas, Cause No. DC-19-06941, in the 162nd Civil District Court, Dallas County, Texas
(referred to as the "Action") alleging among other things retaliation in violation of the Texas
Whistleblower Act;
WHEREAS, CFW has denied and continues to deny and dispute the allegations contained
in the Action;
WHEREAS, Plaintiff and CFW attended mediation with the Hon. Jeff Kaplan (Retired) on
July 3, 2024 and reached a tentative agreement to settle the Action without any further proceedings;
WHEREAS, on August 13, 2024, the City Council for the CFW approved settlement of
the Action as tentatively agreed at the July 3, 2024 mediation.
NOW, THEREFORE, in consideration of the foregoing and in consideration of the terms,
covenants, promises and conditions set forth below, the parties agree as follows:
1.Payment. CFW agrees that on before September 6, 2024, provided that CFW has
received the following: (1) this Agreement executed by Plaintiff; and (2) a valid, complete and
current IRS Form W-9s from Plaintiffs attorney:
a.CFW will make a payment totaling Two Million, Four Hundred Thousand
Dollars and Zero Cents ($2,400,000.00) (the "Payment") that will be distributed to Plaintiff
and Plaintiffs attorney as follows:
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i. one check payable to Kennedy Law P.C. Client Trust Account (IOLTA)
(Tax ID 46-0710817) in the amount of Two Hundred Fifty Thousand
Dollars and Zero Cents ($250,000.00), less any applicable withholdings
and deductions, as wage-based damages for which an IRS Farm W-2
will be issued, which CFW shall report as it would generally report the
payment of wages; and
ii. one check payable to Kennedy Law P.C. Client Trust Account (IOLTA)
(Tax ID 46-0710817) in the gross amount of Two Million, One Hundred
Fifty Thousand Dollars and Zero Cents ($2,150,000.00) far which an
IRS Form 1099 will be issued.
2. Tax Liability. Plaintiff acknowledges and agrees that CFW has made no
representations to Plaintiff regarding the tax consequences of any amounts received by Plaintiff or
his legal counsel pursuant to this Agreement. Plaintiff and his legal counsel agree to bear all tax
consequences, if any, attendant upon the payment of the above-recited sums. Plaintiff and his legal
counsel further agree to hold CFW harmless from and against any taX or tax withholdings claims,
amounts, interest, penalties, fines or assessments brought or sought by any taxing authority or
governmental agency regarding the above recited sums. In the event CFW receives written notice
that any claim ar assessments for taxes, withholding obligations, penalties and/or interest arising
out of this settlement are being or will be made against CFW, CFW shall promptly, after receipt
of such written notice, notify Plaintiff by letter sent to counsel for Plaintiff. If it is finally
determined that CFW is required to pay both its tax obligation and the tax obligation of Plaintiff
or his legal counsel regarding any settlement amount paid to the Kennedy Law Firm P.C. Client
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Trust Account (IOLTA), then Plaintiff will indemnify CFW for payment of Plaintiff's tax
obligation and any related assessed interest and penalties.
3. Dismissal of the Action. Within 3 business days following its receipt of the
Payment, Plaintiff will file a Notice of Nonsuit with Prejudice, and a proposed Order of Dismissal
with Prejudice dismissing all claims in the Action, with prejudice against refiling and taxing
costs and fees to the party incurring same.
4. General Release and Waiver and Covenant Not to Sue. In exchange for the
consideration described in this Agreement, Plaintiff warrants that there are no other corresponding
charges, claims or grievances of any nature pending in any federal, state, municipal agency, court
or tribunal which are not addressed in this Agreement, and agrees to forever waive, release, and
discharge CFW, including its divisions, affiliates, and its respective benefit plans, and,
collectively, its officials, officers, directors, employees, attorneys, other legal representatives,
insurers, fiduciaries, and agents, past and present (collectively referred to as "the Released
Parties") from any claims arising from the Action, as well as any and all other claims, actions,
causes of action, obligations far damages (including, but not limited to, compensatory, exemplary,
and punitive damages), losses, expenses, attorneys' fees or costs, back pay, loss of earnings, debts,
reinstatement and any and all other demands which the Plaintiff may have against the Released
Parties arising out of Plaintiff's employment relationship with CFW, to the effective date of this
Agreement. This includes but is not limited to a release of all rights and claims Plaintiff may have
related to:
(a) the Action or that could have been raised in the Action or any charge or grievance;
(b) Anti-Discrimination Statutes, such as Title VII of the Civil Rights Act of 1964,
as amended (prohibits discrimination in employment based on race, color, national
arigin, religion, sex or pregnancy); the Civil Rights Act of 1991 (prohibits
discrimination); Section 1981 of the Civil Rights Act of 1866 (prohibits
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discrimination); the Americans with Disabilities Act, 42 U.S.C. §12101, etseq., the
American with Disabilities Act Amendments Act of 2008, and Chapter 21 of the
Texas Labor Code (prohibits discrimination and retaliation); the Age
Discrimination in Employment Act (prohibits discrimination based on age); the
Older Workers Benefit Protection Act; the Genetic Information Non-Disclosure
Act; the Equal Pay Act;
(c) Federal and State Employment Statutes, such as the Fair Labar Standards Act;
the Family Medical Leave Act; the National Labor Relations Act; the Worker
Adjustment and Retraining Notification Act; the Plaintiff Retirement Income
Security Act; the Consolidated Omnibus Budget Reconciliation Act; the Texas
Whistleblower Act; and/or any other federal, state, local, or municipal statute, law,
constitution, ardinance ar regulation;
(d) Other Laws and Claims, such implied or express employment contracts; public
policy or tort claims; retaliatory discharge claims; negligent hiring, retention ar
supervision claims; defamation claims; wrongful discharge claims; intentional
infliction of emotional distress claims; invasion of privacy claims; intentional
interference with contract claims; negligence claims; detrimental reliance claims;
any covenant of good faith and fair dealing claims; loss of consortium claims;
promissory estoppel claims; personal injury claims; common law claims; claims for
compensatory or punitive damages; claims for back pay; claims relating to legal
restrictions on CFW's right to terminate Plaintiffs or any other claim arising out of
ar relating to Plaintiff's employment with CFW to the date of this Agreement; and
(e) Benefit Plans, such as any CFW pension plans, stock option, bonus, incentive
compensation, commission, medical, dental, life insurance, retirement, disability,
and other compensation or benefit plans.
Notwithstanding the foregoing, nothing in this Agreement shall constitute a release by Plaintiff of
vested retirement benefits, if any, Plaintiff earned during the period of any active employment
under any CFW qualified retirement plans, as determined under the official terms of those plans.
Plaintiff is releasing only those claims that can be released by law and Plaintiff is not releasing any
claims that arise after signing this Agreement.
In addition, Plaintiff agrees never to sue the Released Parties in any forum for any claim
covered by the above waiver and release language. If Plaintiff violates this General Release and
Waiver by suing any of the Released Parties and should such litigation be found to violate the
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provisions of this Agreement, Plaintiff shall be liable to CFW far its costs and attorneys' fees in
defending such litigation.
5. No Re-Hire. Plaintiff acknowledges that CFW has no obligation to rehire Plaintiff
at any time in the future; and that Plaintiff will not apply far or otherwise seek employment,
reinstatement, re-hire, temporary assignment or work as an independent contractor, consultant or
vendar with the CFW at any time and expressly waives Plaintiff's right to do so. Plaintiff
acknowledges and agrees that Plaintiff's agreement not to seek future employment as stated is
purely contractual and is in no way involuntary, discriminatory or retaliatory.
6. Employment Verification. Plaintiff agrees to direct employment verification
inquiries to the CFW Job Verification system, 1-855-901-3099 or htt�://www.cccverify.com/.
Plaintiff acknowledges that information released by CFW in response to requests to verify
employment will be limited to Plaintiff's hire date, job title, and salary range. From the date of
execution of this Agreement, Plaintiff agrees not to seek employment verification or a reference
from CFW through any current or former employee. Plaintiff understands and agrees that CFW
cannot assume responsibility far what any employee of CFW (current or former) might say to a
prospective employer if a prospective employer contacts, for any reason, any person or entity other
than as specified in the CFW's established policies and procedures regarding requests for
verification of employment. Notwithstanding this Agreement, CFW agrees that nothing thing in
this Agreement shall prevent Plaintiff from utilizing any employment reference or
recommendation received from a current or former CFW employee prior to the date of execution
of this Agreement.
7. No Other Pending Claims. Plaintiff represents and warrants that other than the
Action, Plaintiff has filed no other pending claims, lawsuits, charges, grievances or causes of
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action of any kind against CFW ar any Released Party and that, to the best of Plaintiff's knowledge,
Plaintiff possesses no claims (including claims under the Fair Labor Standards Act, or wage
claims, and workers compensation claims) other than those related to the Action (all of which
Plaintiff is releasing by this Agreement). Plaintiff further represents and warrants that Plaintiff has
received any and all compensation to which Plaintiff may have been entitled (including overtime),
and that Plaintiff is not aware of any facts or circumstances constituting a violation by CFW of
any wage payment laws. Plaintiff further represents and warrants that Plaintiff has not suffered
any on-the job injury while employed by CFW for which Plaintiff has not already filed a claim.
8. Communications with Government Agencies. Nothing in this Agreement
precludes Plaintiff from filing an administrative complaint, cooperating or participating in an
investigation or proceeding, or otherwise communicating with the Equal Employment Opportunity
Commission ("EEOC"), the National Labor Relations Board ("1�TLRB"), the Occupational Safety
and Health Administration ("OSHA"), the Securities and Exchange Commission ("SEC"), or any
other federal, state or local agency charged with the enforcement of any laws. However, Plaintiff
acknowledges that the consideration provided in this Agreement shall be the sole relief provided
for the claims released in this Agreement, and Plaintiff expressly acknowledges and agrees to
waive any and all rights to recover personal monetary damages or other recovery against CFW for
any claim released in this Agreement. Plaintiff further agrees to never seek or accept any personal
damages, remedies, or other relief with respect to any claim released in this Agreement and waives
the right to any individual monetary recovery in any action ar lawsuit initiated by the EEOC, the
NLRB, or any other federal, state or local agency charged with the enforcement of any laws, except
for any right Plaintiff may have to receive a payment from a government agency (and not CF�
for information provided to the government agency.
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9. No Admission of Liability. It is understood and agreed by the parties that this
Agreement represents a compromise settlement of disputed claims, and that the promises and
payment in consideration of this Agreement shall not be construed to be an admission of any
liability or wrongdoing by any party to any other party or to any other person.
10. Medicare. Plaintiff acknowledges Medicare's statutory right to recovery of
conditional payments for medical treatment and medical service rendered in connection with any
and all injuries ar claims being released in this Agreement. This settlement is based upon a good
faith determination of the parties to resolve a disputed claim. The parties have not shifted
responsibility of inedical treatment to Medicare, and the parties made every effort to adequately
protect Medicare's interest in the settlement terms. Plaintiff warrants Plaintiff is not a Medicare
Beneficiary, and there are no outstanding Medicare or Medicaid claims or rights of recovery of
conditional payments based on Plaintiff's applications for, or receipt of, Medicare or Medicaid
bene�ts. In the event Medicare asserts such a claim or right of reimbursement now, or at any point
in the future, all such claims or rights of reimbursement shall be satisfied from among the proceeds
of this settlement, and no additional monies shall ever be requested from or paid by the Released
Parties.
11. No Waiver of Vested Rights. Notwithstanding anything else in this Agreement,
Plaintiff and CFW agree that this Agreement shall not affect, alter, or eXtinguish any vested right
that Plaintiff may have with respect to COBRA, any pension, or other retirement benefits to which
Plaintiff is entitled by virtue of Plaintiff's employment with CFW, and nothing in this Agreement
shall prohibit Plaintiff from enforcing such rights.
12. Other Representations and Warranties.
a. Plaintiff represents and warrants necessary power and authority to enter and
perform this Agreement and that it is the lawful owner of all right, title, and
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interest in and to every claim and other matter that it has released through this
Agreement.
b. Plaintiff agrees he will not take any action that would interfere with the
performance or implementation of this Agreement or that would adversely
affect any of the rights provided for in this Agreement, but rather Plaintiff shall
use best efforts, cooperate fully, execute any and all necessary documents, and
take any and all additional actions necessary to give full farce and effect to the
provisions and terms of this Agreement.
c. Plaintiff agrees this Agreement was mutually drafted with each Party having
had the opportunity far counsel of its choice to review the Agreement. This
Agreement is the product of all Parties' counsel.
13. Agreement Concerning Litigation Costs and Attorneys' Fees. Plaintiff and
CFW agree that neither party owes the other any costs or fees, except as otherwise provided in this
Agreement.
14. Binding and Contractual Nature of Agreement. This Agreement shall be binding
upon the heirs, assigns, administrators, executors, beneficiaries, legal representatives, affiliates,
subsidiaries, parents and successors of all parties and shall inure to the benefit of all parties or their
heirs, assigns, administrators, executors, beneficiaries, legal representatives, affiliates,
subsidiaries, parents and successors. Plaintiff and CFW agree that this Agreement constitutes a
contract, and that unless otherwise specified, any action for breach of this Agreement shall be
limited to an action for breach of contract, and Plaintiff retains no right to institute litigation, or
file any charges, lawsuits ar complaints against the Released Parties for events that occurred prior
to the date the Agreement is signed. Should any party commence litigation to enforce the terms of
this Agreement, the prevailing party in such litigation shall be entitled to recover its reasonable
actual attorney's fees and costs from the other party.
15. Interpretation and Governing Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against any of the parties. This
Agreement is made and entered into in the State of Texas, and shall in all respects be interpreted,
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enforced and governed by and under the laws of the State of Texas without regard to its conflict of
law provisions. Venue for any lawsuit to enforce or interpret this Agreement shall be in an
appropriate court located in Tarrant County, Texas after mediating the dispute with Hon. Jeff
Kaplan (retired).
16. Entire Agreement/Severability. This Agreement constitutes and contains the
entire settlement and understanding between the parties concerning the subject matter of this
Agreement, and supersedes all prior negotiations, proposed agreements or understandings, if any,
among the parties concerning any of the provisions of this document. The parties agree that if any
provision of this Agreement is held to be invalid, the invalidity shall not affect other provisions or
applications of this Agreement.
17. Waiver. No waiver of the breach of any of the terms or provisions of this
Agreement shall be a waiver of any preceding or succeeding breach of this Agreement.
18. Execution of Agreement. This Agreement may be executed in one or more
counterparts, and/or by electronic .pdf format or facsimile signature, each of which shall be
deemed an original and all of which shall constitute one and the same Agreement.
19. Voluntary Agreement. Plaintiff understands and agrees as follows:
a. Plaintiff has carefully read and fully understands all the provisions of this
Agreement, which is written in a manner that Plaintiff clearly understands;
b. Plaintiff is entering into this Agreement knowingly, voluntarily, and with full
knowledge of its significance, and has not been coerced, threatened, or intimidated
into signing this Agreement;
c. By this Agreement, Plaintiff is advised to consult with an attorney before signing
this Agreement. Plaintiff is represented by an attorney, has consulted with an
attorney before signing this Agreement, and Plaintiff's attorney has reviewed this
Agreement;
d. Plaintiff has been given 21 days/a reasonable time to consider this Agreement and
understands that any change or modification to the Agreement will not extend the
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21-day consideration period; Plaintiff agrees that CFW has made no threats or
promises to induce him to sign earlier; and,
e.Plaintiff is not otherwise entitled to the payment and other consideration described
in this Agreement.
20.Time for revocation. Plaintiff has a full seven (7) calendar days following
Plaintiffs execution of this Agreement to revoke the Agreement. Plaintiff may revoke this
Agreement only by giving written notice of Plaintiffs revocation addressed to CFW' s attorney,
Courtney B. Perez, Carter Arnett Bennett &Perez, PLLC, 8150 N. Central Expy, Suite 500, Dallas,
TX 75206, which must be received by midnight on the seventh day following execution of this
Agreement.
The remainder of this page is intentionally left blank.
AGREED TO BY:
William Birchett
CITY OF FORT WORTH:
APPROVED:
Assistant City Manager
CITY OF FORT WORTH
APPROVED AS TO FORM:
Dated: 9/5/2024
Date: ________ _
Cb.tirto12het Ttoutt Christopher Trou{t (Sep 6, 2024 14:21 CDT)
Christopher A. Troutt
Senior Assistant City Attorney
ATTEST:
Jannette Goodall, City Secretary
Contract Compliance Manager:
Date: 9/6/2024
Date: 09/10/2024
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.
Deirdre O 'Neal
Sr. Property & Casualty Adjuster
Date: 9/10/2024
City of Fort Worth Human Resource Department, Risk Management Division
Signature: � w�wcl
Email: Elisa.Winterrowd@fortworthtexas.gov
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