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HomeMy WebLinkAboutAdam Bereki - 2008-04-09J� CITY OF HUNTINGTON BEACH Interdepartmental Communication TO: JOAN FLYNN, City Clerk FROM: JENNIFER McGRATH, City Attorney DATE: April 24, 2008 SUBJECT: Adam Bereki v. Huntington Beach Police Department, et al., Orange County Superior Court Case No. 07CC0935I At the April 21, 2008 Closed Session, the City Council approved the settlement with Adam Bereki, and authorized the City Administrator to sign the settlement agreement in the above -mentioned case. Attached please find a copy of the executed Settlement Agreement with the request that you keep the agreement on file in your office. JENNIFER McGRATH City Attorney Attachment 21833 SETTLEMENT AGREEMENT This Settlement Agreement (hereinafter the "Agreement") is made and entered into on April 9, 2008, by and between Adam Bereki (hereinafter "Plaintiff'), on the one hand, and Yasha Nikitin and the City of Huntington Beach (hereinafter jointly and severally "Defendants"), on the other hand. RECITALS Whereas: A. Plaintiff is employed by the City of Huntington Beach (hereinafter the "City"). B. On or about August 28, 2007, Plaintiff filed a complaint in the Orange County Superior Court entitled Adam Bereki v. Huntington Beach Police Department, a Department of the City of Huntington Beach; Yasha Nikitin, an Individual, and Does 1 through 10, Inclusive, Orange County Superior Court Case No. 07CCO9351, (hereinafter the "Superior Court Case"). C. On or about February 12, 2008, Plaintiff filed a claim of industrial injuries arising out of injuries allegedly sustained prior to that and a case number has not yet been assigned to that claim (hereinafter the "Workers Compensation Claim"). D. Plaintiff and Defendants each wish to resolve any and all actual and potential disputes, grievances, controversies, claims and/or actions between them and agree upon the terms and conditions of that resolution. For this reason Plaintiff and Defendants have entered into this Agreement. E. Nothing in this Agreement is deemed an admission of liability by any of the Defendants and the Agreement is entered into to avoid the costs of ongoing litigation. ACCORDINGLY, IN CONSIDERATION FOR THE PROMISES CONTAINED j REIN, THE PARTIES AGREE AS FOLLOWS. IT IS UNDERSTOOD THAT EFFE ATION OF THIS AGREEMENT IS SUBJECT TO FORMAL APPROVAL BY THE HUNTINGTON BEACH CITY COUNCIL ("City Council"). l . On or before June 1, 2008, the Plaintiff shall file an application to CalPERS for an industrial disability retirement (hereinafter the "industrial retirement"), supported by adequate medical documentation that Plaintiff has sustained a work related disability that renders him permanently disabled from performing the regular and customary duties of his position as an officer of the City's Police Department. Thereafter, the City shall cooperate with and not oppose the timely processing of the application for industrial retirement. Plaintiff shall be placed on administrative leave effective April 14, 2008, pending receipt of benefits available pursuant to state law for police officers temporarily disabled due to industrial injury and thereafter Plaintiff shall be removed from administrative leave. 2. Upon Plaintiff s receipt of disability retirement benefits, the City shall cause the City of Huntington Beach Police Department to issue to Plaintiff a retired police officer badge, a retired police officer identification card, and the right to purchase his service weapon pursuant to established Department Policy. Plaintiff shall be entitled to access City medical benefits in accordance with the currently in effect memorandum of understanding between the City and the Police Officer's Association. 3. Within ten days of approval of the Agreement by the City Council, the City shall issue and send a check payable to the client trust fund of James Traut in the amount of one hundred and fifty thousand dollars ($150,000). 4. Within ten days of the approval of the Agreement by the City Council, Plaintiffs counsel shall send to counsel for the City a Request for Dismissal of the entire Superior Court Case with prejudice and shall file the Request for Dismissal with the Superior Court. Plaintiff shall take all steps required to effectuate a dismissal of the entire Superior Court Case, with prejudice. 5. All inquiries regarding the reason for Plaintiff s leaving the City's employ shall be responded to by only providing dates of employment and position of employment, unless Plaintiff has signed a written waiver authorizing the release of additional information. 6. Plaintiff agrees that he will not seek, apply for or accept employment with the City at any time in the future. 7. PLAINTIFF AND DEFENDANTS FURTHER STATE THAT HE/IT HAS CAREFULLY READ THIS AGREEMENT, THAT HE/IT HAS HAD THE OPPORTUNITY TO HAVE THE AGREEMENT FULLY EXPLAINED TO HIM/IT BY HIS/ITS COUNSEL AND/OR HIS/ITS ATTORNEY; THAT HE/IT FULLY UNDERSTANDS THE AGREEMENT'S FINAL AND BINDING EFFECT; THAT THE ONLY PROMISES MADE TO HIM/IT TO SIGN THIS AGREEMENT ARE THOSE STATED ABOVE AND THAT HE/IT IS SIGNING THIS AGREEMENT VOLUNTARILY. 8. This Agreement has been jointly negotiated by the parties and shall not be construed against the party preparing it, but shall be construed as if both parties jointly prepared it, and any uncertainty or ambiguity shall not be interpreted against or in favor of any one party. 9. Each party shall be responsible for their own costs and attorney's fees, inclusive of any liens. 10. Upon execution of this Agreement, Plaintiff, on behalf of himself, heirs, representatives, successors, and assigns, hereby irrevocably and unconditionally waives, releases and discharges each Defendant and its City Council members, departments (including but not limited to the Department), agents, officers, current or former employees, representatives, attorneys, affiliates, insurers, successors and assigns, employee organizations or unions, and all persons acting by, through, under or in concert with them, past or present (hereinafter collectively "Released Parties") and each and all of them, from any and all charges, complaints, lawsuits, claims, liabilities, claims for relief and expenses (including attorneys' fees and costs) of any nature whatsoever, whether in law or equity, known or unknown, suspected or unsuspected, which Plaintiff now has, owns or holds, or claims to have owned or hold, or which he may have or hold against each or any of the Released Parties, at common law or under any statute, rule, regulation, order or law, federal, state or local, on any grounds whatsoever, with respect to any act, event, matter, claim, damage, loss or injury arising out of his employment relationship, up to the date of execution of this Agreement, with any of the Released Parties. This release includes, without limitation, claims under the Ralph M. Brown Act (California Government Code section 54950 et seq.), Age Discrimination in Employment Act (29 U.S.C. section 621 et seq.), the California Fair Employment and Housing Act (California Government Code section 12900 et seq.), the California Family Rights Act (California Government Code section 12945.2 et seq. and 19702.3 et seq.), the Unruh and George Civil Rights Acts (California Civil Code section 51 et seq.), all provisions of the California Labor Code, including but not limited to Labor Code section 132a, and any related wage orders or similar directives or authorities issued by any federal or state authority having enforcement powers, the Constitution of the United States, the Constitution of the State of California, Title VII of the Civil Rights Act of 1964 (42 U.S.C. section 2000e et seq.), the Equal Pay Act (29 U.S.C. section 206(d)), the Fair Labor Standards Act (29 U.S.C. section 201 et seq.), the Family and Medical Leave Act (29 U.S.C. section 2601 et seq.), the Employment Retirement Income Security Act of 1974 ("ERISA"; 29 U.S.C. section 1001 et seq.), Sections 1981-88 of Title 42 of the United States Code (42 U.S.C. section 1981 et seq.), the American with Disabilities Act (42 U.S.C. section 12101 et seq.), claims of retaliation or whistle -blowing (including but not limited to California Labor Code section 1102.5 et seq. and Government Code section 12653), breach of any covenant, promise, or representation pertaining to Plaintiffs employment, whether express or implied, claims for negligent hiring, retention, supervision, wrongful termination, harassment or discrimination of any type, interference with economic relations, failure to pay wages and/or benefits of any kind, fraud and/or misrepresentation of any kind, negligent or intentional infliction of emotional distress, defamation, libel, slander, assault, battery, and/or any other claims arising under or in contract, tort or equity or under any other statute, federal, state or local up to the date of execution of this Agreement. 11. Each Defendant, on behalf of themselves and their representatives, agents, city council members, departments, officers, current or former employees, executors, heirs, assigns and successors -in -interest hereby release and forever discharge Plaintiff and his agents, officers, current or former employees, representatives, attorneys, assigns, and successors in interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorney's fees, of every kind and character, known or unknown, existing or contingent, latent or patent. 12. Except as set forth herein, each party understands that this Agreement extends to all grievances, disputes or claims of every nature and kind, known or unknown, suspected or unsuspected, past or present, arising from or attributable to the above -referenced matters and disputes, but does not apply to any potential disputes or issues between the Co -Defendants. Each party understands and expressly agrees that this Agreement also extends to any other matter, event or claim occurring prior to the date of execution of this Agreement. Each party further acknowledges that any and all rights granted it or him under Section 1542 of the California Civil Code, or any other analogous federal or state law or regulation, are hereby expressly waived. Section 1542 of the California Civil Code reads 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." 13. This Agreement shall be interpreted under the laws of the State of California. 14. The parties agree that the Court retains jurisdiction to enforce the terms of the provisions of this Agreement pursuant to California Code of Civil Procedure Section 664.6. 15. Each party has had the right to be represented by counsel of its choosing during the negotiation and execution of this Agreement. 16. Each party hereby acknowledges that except as set forth herein, no representations or promises of any kind or character have been made by the other or anyone else to induce the execution of this Agreement. 17. This Agreement constitutes the entire agreement between the parties and cannot be modified or otherwise changed except by a writing executed by a duly authorized agent of Plaintiff, on the one hand, and the City, on the other hand. 18. Should any provisions of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provision shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. 19. This Agreement may be executed in counterparts, by facsimile or otherwise, each of which shall be deemed an original. IN WITNESS WHEREOF, this Agreement is executed as of this day of April, 2008. Dated: April 2008 By: am Bereki Dated: April �, 2008 By: Yasha Nikitin -" Dated: April �, 2008 CITY OF HUNTINGTON BEACH By: Jennifer McGrath Its: City Attorney APPROVED AS TO FORM: Dated: April , 2008 C1 Dated: April �, 2008 n Dated: April , 2008 B •� Y• James R. Traut Counsel for Plaintiff Adam Bereki J� By: Irma Rodrigu Moisa Counsel for Defend�t Yasha Nikitin BY: )4�� fJ '�-�✓—�� N Counsel for Defendant City of Huntington