HomeMy WebLinkAbout32493Agreement No. 16-011
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This settlement agreement and general release ("Agreemenr) is made and entered
into by and between COUNTY OF FRESNO ("the County''), on the one hand, and
JEFF FIMBREZ, ("Mr. Fimbrez") on th€! other hand, as of the date approved by·the
County's Board of Supervisors ("effective date").
Recitals
A. WHEREAS, Mr. Fimbrez was employed by the County as a
Community Mental Health Specialist in the Department of Behavioral Health from
September 22,2008 to June 12, 2015;
B. WHEREAS, Mr. Fimbrez and four other plaintiffs (Veronica Rabago,
Jennifer Endicott, Baudelia Valencia, and Amy Timmons) filed a lawsuit in Fresno
County Superior Court, case no. 15 CE CG 02130, against the County making
various wage and hour claims, including missed meal periods during his employment
with the County, and served it on the County July 9, 2015;
C. WHEREAS, Mr. Fimbrez and four other plaintiffs (Veronica Rabago,
Jennifer Endicott, Baudelia Valencia, and Amy Timmons) served a first amended
complaint alleging additional Fair Labor Standards Act claims on August 26, 2015;
D. WHEREAS, Mr. Fimbrez and the County desire to settle, without any
admission of liability, the dispute concerning the claims alleged in the complaints,
and any other claim that in any way arises out of or relates to his wages earned while
he was employed with the County's Department of Behavioral Health from July 9,
2012 to August 21, 2014;
NOW, THEREFORE, in consideration of the covenants contained herein, Mr.
Fimbrez and the County agree as follows:
1. Consideration. In consideration for Mr. Flmbrez's general release of
· claims against the County and agreement to file a dismissal of case no. 15 CE CG
02130 with prejudice:
a. Payment: The County shall pay Mr. Fimbrez the total case sum
of Seventeen Thousand Four Hundred Eighty One and 27/100
Dollars ($17,481.27) for overtime, liquidated damages, and
attorneys' fees in two payments as specified below. This
payment is conditioned upon Mr. Fimbrez filing and entering a
dismissal, with prejudice of Fresno County Superior Court case
no. 15 CE CG 02130 as set forth below.
b. Timing of Payment: Payments of the above sum by the County
shall be made within fifteen (15) County business days from the
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effective date of this Agreement, unless the payment date is
extended in a written agreement signed by County and Mr.
Fimbrez;
c. Method: The County shall issue two payments. The first
payment shall be made by the County via check payable to Mr.
Fimbrez in the amount of Six Thousand Five Hundred Seven and
05/100 ($6,507.05), less federal and state tax withholdings,
mailed to Joseph Farzam Law Firm, Attn: Nazo Koulloukian,
11766 Wilshire Blvd., Suite 280, Los Angeles, CA 90025. Mr.
Koulloukian will be responsible to promptly forward this check to
Mr. Fimbrez. Upon completion of a W9, the second payment
shall be made by the County payable to Mr. Fimbrez and Joseph
Farzam Law Firm in the amount of Ten Thousand Nine Hundred
S~venty Four 22/100 ($10,974.22) mailed to Joseph Farzam Law
Firm, Attn: Nazo Koulloukian, 11766 Wilshire Blvd., Suite 280, Los
Angeles, CA 90025. The County shall submit the two payments
via U.S. Mail and service will be complete upon post-marked date
of the payments. ·
d. Dismissal: Immediately upon the execution date of this
Agreement, counsel for Mr. Fimbrez and the four other plaintiffs
shall execute a dismissal, with prejudice, of all claims in Fresno
County Superior Court case no. 15 CE CG 02130 against the
County.
e. No Response to Complaint: Immediately upon the execution
date of this Agreement, County shall not be required to respond to
the complaints in Fresno County Superior Court case no. 15 CE
CG 02130.
2. General Release. Except for the obligations expressly created by this
Agreement, Mr. Fimbrez, including his respective predecessors, successors, heirs,
agents, attorneys, accountants, representatives, trustees, administrators,
executors, beneficiaries, and assigns, and in consideration of the payments called
for herein, hereby fully releases the County, and its successors, and all other
persons and associations, known or unknown, from any and all demands, actions,
claims, liability or rights to compensation which Mr. Fimbrez now has, including
claims for minimum wage, overtime compensation, liquidated damages,
prejudgment interest, attorneys' fees and costs, any other claims under the Fair
Labor Standards Act (FLSA), State law claims pertaining to wage and hour, and
federal and state discrimination/retaliation claims pertaining to any requests for
compensation, from work Mr. Fimbrez performed while employed by the County's
Department of Behavioral Health from July 9, 2012 to August 21, 2014.
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It is expressly understood, however, that this release shall not extend to any
of the obligation or rights set forth in this Agreement.
3. Release of Unknown Claims.
Except for the obligations expressly created by this Agreement, Mr. Fimbrez
and his respective predecessors, successors, heirs, agents, attorneys,
accountants, representatives, trustees, administrators, executors, beneficiaries,
and assigns, certify that they have read Section 1542 of the California Civil Code,
and in particular that provision thereof which reads as follows:
A general release does not extend to claims which the creditor does not know or
expect 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.
Mr. Fimbrez and his respective predecessors, successors, heirs, agents,
attorneys, accountants, representatives, trustees, administrators, executors,
beneficiaries, and assigns, waive and relinquish any rights and benefits they may
have pursuant to or under section 1542 of the Civil Code. Mr. Fimbrez and his
respective predecessors, successors, heirs, agents, attorneys, accountants,
representatives, trustees, administrators, executors, beneficiaries, and assigns,
acknowledge they are aware that they may hereafter discover facts in addition to or
different from those that they now know or believe to be true with respect to the
subject matter of this Agreement, but it is their intention to finally and forever settle
and release any and all matters, disputes, and differences, known or unknown,
suspected or unsuspected, which do now exist, may exist, or heretofore have
existed, and, in furtherance thereof, the release herein given shall be and remain in
effect as a full and complete general release notwithstanding the discovery or
existence of any such additional or different facts.
4. Attorneys' Fees and Costs. Mr. Fimbrez understands and
acknowledges that any attorneys' fees or costs in addition to that covered under the
consideration of this Agreement shall not be borne by the County per his general
release above.
5. Defenses. Mr. Fimbrez represents and warrants that in the event of
commencement of any action in violation of this Agreement, the County may plead
. this Agreement as a complete defense to any such action and may be asserted by
way of a counterclaim in such an action.
6. No Assignment of Claims. Mr. Fimbrez represents and
warrants there has not been an assignment or transfer, or purported assignment or
transfer, whether voluntary, involuntary, or by operation of law, of any claim or matter
released pursuant to this Agreement.
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7. No Admission of Liability. The County expressly denies any
violation of its policies, procedures, state or federal laws or regulations relating to the
claims set forth in Fresno County Superior Court case no. 15 CE CG 02130, nor
should this Agreement be construed as an admission of such liability.
8. Agreement is Binding and Final. The County and Mr. Fimbrez
agree that this Agreement shall not be subject to rescission or modification based
on any mistake of fact or law in that there is absolutely no agreement or reservation
that is not clearly expressed herein. All Parties to this Agreement further
represent and warrant that, except as set forth in this Agreement, they have not
relied upon or been induced by any representation, statement, or disclosure of any
other party but have relied upon their own knowledge and judgment in entering into
this Agreement and have read and fully understand the terms of this Agreement
and are fully advised as to the legal effects
9. Governing LawNenue. This Agreement shall be governed by the
laws of the State of California and the proper place for trial of any action arising out
of or in any way related to this Agreement shall be Fresno County, California, to the
exclusion of any other forum or jurisdiction.
10. Entire Agreement. This Agreement shall constitute the entire
agreement between the Parties. It is expressly understood and agreed that this
Agreement may not be altered, amended, modified, or otherwise changed in any
respect whatsoever except by a writing duly executed by authorized
representatives of the Parties. Each of the undersigned states that he/she has
read this Agreement, understands the contents thereof, and signs the same as a
free act and deed in the capacities indicated below. By signing this Agreement,
the Parties express their intention to nullify all previous understandings and
agreements between them not contained in this Agreement. This Agreement
supersedes all prior agreements and statements about the terms of this contract
and contains the complete and exclusive statement of all of its terms.
11. Further Documents. Each Party to this Agreement shall execute
whatever documents may be necessary and appropriate to carry out the intent and
purpose of this Agreement.
12. Severability. In the event that any of the terms of this Agreement
are found to be unenforceable by a court of competent jurisdiction, the remainder
of this Agreement shall not be affected thereby and shall remain in full force and
effect.
13. Execution in Counterparts. This Agreement may be executed in
counterparts. Each such counterpart shall be deemed an original, but all such
executed counterparts together shall constitute one and the same instrument. A
facsimile signature shall be deemed as effective as an original signature.
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______ _j
14. Construction. The normal rule of construction that any ambiguity
or uncertainty in a writing shall be interpreted against the party drafting the writing
shall not apply to any action on this Agreement. This Agreement is entered into in
the State of California and shall be construed and interpreted in accordance with
its laws.
15. Waiver. The waiver by either Party of a breach of any term,
covenant, or condition contained in this Agreement shall not be treated as a waiver
of such term, covenant, or condition, or as a waiver of a future breach of the same
or any other term, covenant, or condition contained in this Agreement.
16. Binding Upon Successors. Except as expressly limited herein,
this Agreement shall inure to the benefit of, and be binding upon, the Parties
hereto, their respective predecessors, successors, heirs, agents, attorneys,
accountants, representatives, trustees, administrators, executors, beneficiaries,
and assigns.
17. Recitals Incorporated. The recitals are incorporated in this
Agreement.
18. Representation, Covenants and Warranties. Mr. Fimbrez
acknowledges and warrants that his execution of this Agreement is free and
voluntary, he has had the full authority to enter into this release, understands the
terms of this Agreement and the legal and binding effect thereof, has read this
Agreement, and has consulted with counsel of his choice with respect to the matters
released herein.
RELEASOR
COUNSEL TO RELEASOR
BY: __,..1:::,.-:?s.~-~:;..:::.-___ ~ _DATED:_..L-/..L.JJ/-..::a_;::.:::..~v-0__::f.5:;.___ __ (~L._ 7
Nazo Koulloukian)
PLEASE SEE ADDITIONAL
SIGNATURE PAGE ATTACHED
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COUNTY OF FRESNO
BY: S----=r ~4r-~D:-----ff-l--f,U.....,.,.i/~~qJ-----
Chairman, Board of SG'Perv1sors
BERNICE E. SEIDEL, Clerk
Board of Supervisors
BY: 3.u_S1\!II\ ~sb~
~~
DATED: _ _!./_· .!...-::13~· d-.~0=-.L..!I LD~--
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG, COUNTY COUNSEL
sv: ~a/ DATED: IJ-A;/s
APPROVED AS TO ACCOUNTING FORM:
VICKI CROW, C.P.A., AUDITOR-CONTROLLER!
TREASURER-TAX COLLECTOR
DATED: _ ____,
1
f-!"fd::::::L......</,:.L..t..l/;.-l.y: __ _
REVIEWED AND RECOMMENDED FOR APPROVAL:
BY: ~L4A--~ DATED: __ l_~_8'_/ '--=5::::._. __ _
Dawan Utecht
Director of Behavioral Health
Organization#: 56302240
Fund: 0001
Subclass: 10000
Account#: 7260
By: 2016
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