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HomeMy WebLinkAbout32494Agreement No. 16-012 SETTLEMENT AGREEMENT AND GENERAL RELEASE This settlement agreement and general release ("Agreemenf) is made and entered into by and between COUNTY OF FRESNO ("the County"), on the one hand, and AMY TIMMONS, ("Ms. Timmons") on the other hand, as of the date approved by the County's Board of Supervisors ("effective date"). Recitals A. WHEREAS, Ms. Timmons has been employed by the County as a Licensed Mental Health Clinician in the Department of Behavioral Health since December 23, 2013 to the present; B. WHEREAS, Ms. Timmons and four other plaintiffs (Veronica Rabago, Jeff Fimbrez, Baudelia Valencia, and Jennifer Endicott) 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 her employment with the County, and served it on the County July 9, 2015; C. WHEREAS, Ms. Timmons and four other plaintiffs (Veronica Rabago, Jeff Fimbrez, Baudelia Valencia, and Jennifer Endicott) served a first amended complaint alleging additional Fair Labor Standards Act claims on August 26, 2015; D. WHEREAS, Ms. Timmons and the County desire to settle, without any admission of liability, the dispute concerning the claims alleged in the complaims, and any other claim that in any way arises out of or relates to her wages earned while she was employed with the County's Department of Behavioral Health from December 23, 2013 to August 21, 2014; NOW, THEREFORE, in consideration of the covenants contained herein, Ms. Timmons and the County agree as follows: 1. Consideration. In consideration for Ms. Timmons'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 Ms. Timmons the total case sum of Eleven Thousand Two Hundred and Fifty Dollars and 93/100 Cents ($11 ,250.93) for overtime, liquidated damages, and attorneys' fees in two payments as specified below. This payment is conditioned upon Ms. Timmons filing and entering a dismissal, with prejudice of Fresno County Superior Court case no.15 CE CG 02130 as setforth below. b. Timing of Payment: Payments of the above sum by the County shall be made within fifteen (15) County business days from the Page 1 of6 effective date of this Agreement, unless ·the payment date is extended in a written agreement signed by County and Ms. Timmons; c. Method: The County shall issue two payments. The first payment shall be made by the County via check payable to Ms. Timmons in the amount of Three Thousand Three Hundred Ninety One and 88/100 Dollars ($3,391.88), 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 Ms. Timmons. Upon completion of a W9, the second payment shall be made by the County payable to Ms. Timmons and Joseph Farzam Law Firm in the amount of Seven Thousand Eight Hundred Fifty Nine and 05/1 00 Dollars ($7,859.05) 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 Ms. Timmons 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, Ms. Timmons, including her 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, ~ctions, claims, liability or rights to compensation which Ms. Timmons 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 Ms. Timmons performed while employed by the County's Department of Behavioral Health from December 23, 2013 to August 21, 2014. Page 2 of6 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, Ms. Timmons and her 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. Ms. Timmons and her 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. Ms. Timmons and her 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. Ms. Timmons 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 her general release above. 5. Defenses. Ms. Timmons 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. Ms. Timmons 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. I Page3of6 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 Ms. Timmons 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. 1 0. 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. Page4of6 · 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. Ms. Timmons acknowledges and warrants that her execution of this Agreement is free and · voluntary; she has had the full authority to enter into this Agreement, understands the terms of this Agreement and the legal and binding effect thereof, has read this Agreement, and has consulted with counsel of her choice with respect to the matters released herein. RELEASOR COUNSEL TO RELEASOR BY: ~~ DATED:_____!..;.PJ+-/;0--f:../.ff:~/?~c---(~ 17 Nazo Koulloukian) PLEASE SEE ADDITIONAL Page 5 of6 COUNTY OF FRESNO BY: f ::r~'Jt-.-,..OATED: //r/Jt{ Chairman, Board of Sup rvisors ~ BERNICE E. SEIDEL, Clerk Board of Supervisors DATED: I· /3 ·3-D 1 Lo APPROVEDASTOLEGALFORM: DANIEL C. CEDERBORG, COUNTY COUNSEL BY: tlrlvkL DATED:~/ {):L........IJ..../d_· _ APPROVED AS TO ACCOUNTING FORM: VICKI CROW, C.P.A., AUDITOR-CONTROLLER/ TREASURER-TAX COLLECTOR REVIEWED AND RECOMMENDED FOR APPROVAL: BY: ~ Ll.:keAi::: DATED: jd-/8'/)5 --~------------- Dawan Utecht Director of Behavioral Health Organization#: 56302240 Fund:OOOl Subclass: 10000 Account#: 7260 By:2016 Page 6 of6