SETTLEMENT AND RELEASE AGREEMENT between Jane Kingsley Miller, Plaintiff, and the City of Carmel-by-the-Sea

ABSTRACT: The Settlement and Release Agreement between Jane Kingsley Miller, Plaintiff, and the City of Carmel-by-the-Sea, including RECITALS, COVENANTS and CONDITIONS, dated July 2010, is reproduced in its entirety.

SETTLEMENT AND RELEASE AGREEMENT

This Settlement and Release Agreement (Hereinafter “Agreement”) is entered into between Jane Kingsley Miller (hereinafter “Plaintiff”) and the City of Carmel-by-the-Sea (hereinafter the “City”).

RECITALS

1. Plaintiff began working for the City of Carmel-by-the-Sea in 1999.

2. Plaintiff filed in the Superior Court, State of California, County of Monterey an action known as Jane Kingsley Miller v. City of Carmel-by-the-Sea and Does 1 through 100, case number M99513 (hereinafter the “Action”). Plaintiff and the City desire to resolve all issues between them arising from the complaint upon the terms of this agreement to conclude all issues between them, past, present, future, real or potential.

3. Plaintiff and the City have resolved any issues between them cooperatively and they enter into the following agreement:

FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH BELOW Jane Kingsley Miller and the City of Carmel-by-the-Sea agree as follows:

COVENANTS

4. By payment from the City’s insurer, the City will promptly provide Plaintiff with a total sum in the amount of $600,000.00 in settlement of all claims in the complaint.

5. The payment shall be made to Plaintiff and her attorneys as specified by Plaintiff.

6. The City shall reinstate four (4) months of accrued leave to Plaintiff’s account and Plaintiff shall be on active status during those four months retroactively from the date of this release. Plaintiff will use her leave during the four months of active status. During these four months, Plaintiff waives her right to accrue additional leave along with her right to the following benefits which otherwise attach to all active status City employees: life insurance, long-term disability insurance, and AFLAC deductions. She will be entitled to all other privileges of a paid employee during those four months.

7. In consideration for the performance of the foregoing promises, Plaintiff, her heirs, representatives, successors and assigns hereby and forever fully release and discharge the City and its current and former employees, officers, agents, insurers, attorneys and representatives of each of them (hereinafter, collectively, the “Released Parties”), from any and all allegations, charges, grievances, causes of action, judgments, liens, indebtedness, damages, losses, claims, liabilities, and demands of whatsoever kind or character, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, including claims pursuant to Title VII of the Civil Rights Act, the Age Discrimination and Employment Act, the Older Workers Benefit Protection Act (§201, 104 Stat. 983, 29 U.S.C. § 626(f), the California Fair Employment and Housing Act and any other administrative agency complaints, without limitation, arising from or related or attributable to Plaintiff’s employment, except as to the City’s obligations under this Agreement.

Plaintiff understands and agrees that this Settlement Agreement extends to all allegations, charges, grievances, disputes or claims of every nature and kind, both known or unknown, suspected or unsuspected, past, present or future, arising from or attributable in any way to matters and claims occurring prior to the date of execution of this Agreement, and to any claim for compensation other than as provided in this Agreement.

8. Upon receipt of the amount provided for in Paragraph 4 of this Agreement, Plaintiff shall promptly file and serve upon the City and its attorneys, a dismissal with prejudice of the entire Action and each party will bear their own costs of suit and attorney fees related to that Action. The City’s financial obligations to Plaintiff under this Agreement shall survive the dismissal of this Action.

CONDITIONS

9. Plaintiff and the City acknowledge that this Agreement was entered into voluntarily, and expressly also acknowledge that the respective legal counsel for each party has provided the respective parties with a copy of California Civil Code Section 1542 in regard to known and unknown claims.

Therefore, Plaintiff and the City expressly waive the provisions of California Civil Code Section 1542, and further waive any rights each party might have to invoke said provisions now or in the future with respect to the releases set out in this Agreement under the terms of California Civil Code Section 1542, which provides as follows:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

10. It is understood and agreed that this is a compromise settlement of disputed claims, and that the furnishing of consideration by the City’s insurer or the City shall not be deemed or construed at any time for any purpose as an admission of liability by any party to this agreement or any member of the City Council of the City of Carmel-by-the-Sea or its agents, servants or employees.

11. Plaintiff represents the following items at the time of the execution of this Agreement:

One. Plaintiff has no other outstanding or suits either filed or potential against City at the time of the execution of this Agreement;

Two. Plaintiff represents that she is of good health and has at the time of the execution of this Agreement no known or potential on-the-job injuries;

Three. Plaintiff will immediately provide City with a dismissal or whatever documents it takes to remove and end any sort of a proceeding that is covered under the terms of this Agreement.

The foregoing representations are material representations to City to enter into this Agreement and the enforceability of this Agreement is conditioned upon the truth and accuracy of those representations.

12. The undersigned parties to this Agreement acknowledge that they have been represented by counsel in the negotiation and preparation of this Agreement; that they have read the Agreement; that they are fully aware of its contents and of its legal effect; that the preceding paragraphs recite the sole consideration for this Agreement; that all agreements and understandings between the parties to this Agreement are embodied and expressed herein; and that each party enters into this Agreement freely, without coercion, and based on the party’s own judgment and not in reliance on any representations or promises made by the other party, other than those contained herein.

13. Plaintiff agrees, as a further material consideration and inducement for this compromise settlement, to hold harmless and indemnify the City, its administrators, insurers, principals, agents, partners, employees, representatives, attorneys, officers, directors, assigns, and all other persons, firms, entities or corporations with whom any of the former have been affiliated from any and all claims, demands, actions or causes of action of subrogation or otherwise asserted by any person or legal entity which has furnished, supplied, and/or paid, or will furnish, supply and/or pay benefits, anything of value or any form of compensation to or for or on behalf of Plaintiff for any claimed expenses, detriment or damages resulting from or relating to the claims raised in the complaint.

14. This Agreement shall be construed and governed by the laws of the State of California. The language of all parts of this Agreement shall in all cases be construed as whole, according to its fair meaning, and not strictly for or against any party. The parties hereby submit themselves to the Courts of California in and for the County of Monterey for the purposes of enforcing this Agreement.

15. Once the City signs this Agreement, it is irrevocable up to July 13, 2010 at 12 noon.

16. This Agreement is not to be made public by any party until signed by all parties to the Agreement and the city makes a public announcement of it. This Agreement is a public record once it is fully executed and announced by the City Council.

17. This agreement is the entire understanding of all issues covered in this release and rescinds and supercedes any prior agreement.


Dated: July 12, 2010
PLAINTIFF
By: ____________________
Jane Kingsley Miller


Dated: June 17, 2010
CITY OF CARMEL-BY-THE-SEA
By: ____________________
Sue McCloud
Mayor

Dated: June 17, 2010
KENNEDY, ARCHER & HARRAY
By: ____________________
Richard K. Harray
Attorney for City of Carmel-by-the-Sea


APPROVED AS TO FORM:
Dated: July 13, 2010
By: ____________________
Michael W. Stamp
Attorney for Plaintiff