SETTLEMENT AGREEMENT AND GENERAL RELEASE This

SETTLEMENT AGREEMENT

AND GENERAL RELEASE

This Confidential Settlement Agreement and General Release (''Agreement")

is

made and entered into among Ryan

F.

Staiger, his heirs, executors, administrators, successors,

and assigns,

("Complainant"), the California Department

of

Fair Employment

and

Housing (the

"DFEH") and the City

of

Merced (the "City"). This Agreement

is

made pursuant to the

f :,Jlowing terms and conditions.

1.

Nature

of

the Aereement and Resolution ofFEHC Decision and Order.

The DFEH issued an Accusation against the City

of

Merced on behalf

of

Complainant. The City disputes the allegations in the Accusation. The California Fair

Employment and Housing Commission (the

"FEHC") conducted a hearing on the Accusation

and issued an adverse Decision

and

Order against the City. The City filed a Petition

for

Writ

of

Mandate

in

the Superior Court, Merced County, Case No. CV 001790. The Superior Court

mtered a judgment denying the Petition for Writ

of

Mandate and the City appealed that

judgment. The parties have reached this settlement while the City's Appeal

is

pending

in

the

Ftfth District Court

of

Appeal, Case

No.

F064213. This settlement and Agreement does not

wnstitute an admission

of

liability or wrongdoing

by

any party. The DFEH represents

it

has the

wthority and hereby does enter into this settlement and Agreement. Within five days

of

receipt

of

a copy

of

this Agreement containing the signature

of

the City's representative, the DFEH

~hall

notify the

FEHC

of

the settlement and that the terms

of

this Agreement supersedes and

mtisfy the FEHC Decision and Order against the City. The parties expressly understand and

intend that this notice to the FEHC will terminate the

FEHC's

jurisdiction in this case.

2.

Pendine and Future Leeal or Administrative Actions.

Complainant and the DFEH represent there are

no

actions, whether in court,

before any agency or otherwise, asserting claims by or on behalf

of

Complainant against the

City, including but not limited to, actions that concern allegations based on Complainant

1

s efforts

1o

become employed with the City, other than the Accusation decided by the FEHC and pending

nppeal, DFEH

v.

City

of

Merced,

Case No. E200708-c-925-00-pe [Superior Court, Merced

County, Case No. CV 001790/ Fifth District Court

of

Appeal, Case No. F064213 (the "Action")].

3. General Release

of

Claims and Affionations.

3.1

It

is

understood and agreed by and among the parties to this Agreement that in

•;onsideration for the City's agreement

as

set forth in Paragraph 4

of

the Agreement, and the

·Jther promises contained herein, Complainant completely releases and forever discharges the

:;ity from all causes

of

action, claims, judgments, obligations, damages, and liabilities

of

Nhatever kind and character, including, but not limited to, those claims that are asserted or that

;ould have been asserted in the Action,

and

those arising under the Employee Retirement Income

Security Act

of

1974; the Americans with Disabilities Act; Title VII

of

the Civil Rights Act

of

1964; the Civil Rights Act

of

1991; the Civil Rights Act

of

1866 (42 U.S.C. § 1981); the Civil

Rights Act

of

1871

(42 U.S.C.

§§

1985

and 1986); the Equal Pay Act

of

1963; the Consolidated

Omnibus Budget Reconciliation Act

of

1985; the California Fair Employment and Housing Act,

Gov. Code

§§

12940 et seq.; applicable California Wage Order provisions; the California

I

of8

Business and Professions Code

§§

17200

et seq.; the California Civil Code; the California Labor

Code; and any other federal, state, or local insurance, human rights, civil rights, wage-hour,

p(msion, or labor laws, rules and/or regulations, public policy, contract or tort laws, and any

claim

of

retaliation under such laws, and any claim arising under common law including, but not

lmited

to, causes

of

action for wrongful termination; constructive discharge; discrimination or

harassment on the basis

of

age, sex, sexual orientation, religion, marital status, taking a leave

of

absence, race, disability

or

national origin

or

retaliation for opposing such discriminatory

J:ractice; intentional infliction

of

emotional distress; negligent infliction

of

emotional distress;

f•audulent misrepresentation; negligent misrepresentation; fraud; invasion

of

privacy; false

imprisonment; conspiracy to commit any act mentioned herein; breach

of

contract (whether oral

or written, express or implied); breach

of

the implied covenant

of

good faith and fair dealing;

interference with business advantage; defamation; interference with prospective economic

advantage; interference with contractual relationship; violation

of

any national, state or local

statute, law,

or

ordinance; wrongful termination in violation

of

public policy; and any other

ac:tion, whether cognizable in law

or

in equity based upon any conduct up to and including the

date

of

this Agreement, and Complainant agrees

that

he will not, from any source or proceeding,

seek or accept any award

or

settlement therefrom. In the event Complainant institutes

or

is a

~arty

to any action or proceeding asserting a claim released in this Agreement, such action or

r:roceeding shall be dismissed with prejudice, with an award

of

attorneys' fees and costs to the

City incurred as a result

of

such action or proceeding, immediately upon presentation

of

this

l~greement.

3.2 Complainant represents and warrants that Complainant has not assigned or

subrogated

any

claim concerning the Action or authorized any other person or entity to assert

such a claim

or

claims on Complainant's behalf. Complainant will take all actions necessary to

cbtain dismissal

of

any claim asserted by any other individual or entity against the City on

Complainant's behalf and will not accept relief or recovery from any action that is not dismissed.

3.3 Complainant further agrees to waive any claim for damages occurring at

~ny

time after the date

of

this Agreement because

of

alleged continuing effects

of

any alleged

cl:,scriminatory

or

other wrongful acts or omissions involving the City, which occurred on

or

h~fore

the date

of

this Agreement. Complainant further agrees to waive any right Complainant

rnay have to sue for injunctive relief against the alleged continuing effects

of

any alleged

discriminatory

or

other wrongful acts or omissions occurring prior to and including the date

of

this Agreement.

3.4

All parties acknowledge that this Agreement does not limit any party's

1ight, where applicable, to file or participate in an investigative proceeding

of

the Equal

Employment Opportunity Commission, the Department

of

Fair Employment and Housing, or

~~ny

federal, state, or local government agency with which the right to file or participate in such

proceeding may not be waived.

To

the extent permitted by law, Complainant agrees that

if

such

<m

administrative claim

is

made, Complainant shall not be entitled to recover any individual

monetary

relief

or other individual remedies.

3.5

To

the extent permitted by law, Complainant waives any right or ability to

he a class

or

collective action representative

or

to otherwise participate in any putative or

certified class, collective or multi-party action or proceeding based on such a claim in the City is

2

of8

a party. Complainant shall take any necessary steps to dismiss

himself

from any class claims,

including but

not

limited to opting-out

of

such claims.

3.6 Complainant affirms that

as

of

the date he signs this Agreement, he is not

l'~ledicare

eligible (Le., is not 65 years

of

age

or

older; is not suffering from end stage renal

flilure; has not received Social Security Disability Insurance benefits for 24 months

or

longer,

etc.). Nonetheless,

if

the Centers for Medicare & Medicaid Services (CMS) (this term includes

any related agency representing

Medicare's

interests) determines that Medicare has an interest in

the payment

to

Complainant under this settlement, Complainant agrees to (i) indemnify, defend

and hold the City harmless from any action relating

to

medical expenses

of

Complainant, (ii)

reasonably cooperate with the City upon request

with

respect to

any

information needed to

satisfy the reporting requirements under

Section

111

of

the Medicare, Medicaid, and SCHIP

Lxtension

Act

of

2007,

if

applicable, and

any

claim for which Complainant is required to

indemnify the City

under

this paragraph, and (iii) waive

any

and all future actions against the

City for

any

private cause

of

action for damages pursuant to 42 U.S.C. § 1395y(b)(3)(A).

3.7 Complainant agrees to defend, indemnify and hold harmless the City for

any liability

or

costs arising out

of

the failure to withhold taxes and the characterization

of

the

settlement

sum

in paragraph 4.

If

payroll taxes are subsequently determined to be necessary, the

City shall

pay

its share as the employer, but Complainant shall

be

responsible for his share

and

any and all penalties, interest and/or other costs associated therewith. Complainant acknowledges

t1at the City has not provided any tax advice upon which Complainant has relied.

3.8 The DFEH shall not pursue any further claim

or

take any further action

against the City, and releases the City from any claim, decision

or

order, related in any

way

to

Complainant.

4.

Settlement Sum and

~onsideration.

4.1

Pursuant to the other terms and conditions contained in this Agreement,

within sixty

(60) days

of

Complainant's and

the

DFEH's

satisfaction

of

all conditions

in

this

Agreement,

and

receipt by counsel for the City

of

a copy

of

this Agreement containing the original

~ignatures

of

Complainant and the DFEH and a W-9 completed by Complainant, the City agrees

tu

pay Complainant the total

sum

of

Four Hundred and Twenty-Five Thousand Dollars and 00/100

Dollars ($425,000.00.) The total amount shall

be

paid in two parts: (1) $140,000, less applicable

d~ductions,

for Complainant's alleged wage loss, subject to W-2 tax reporting and (2) $285,000

f(>r

Complainant's

alleged general damages subject to I 099 tax reporting. The payments shall be

made by checks payable

to

"RYAN

F.

STAIGER"

and mailed to the Department

of

Fair

Employment and Housing, 2218 Kausen Drive, Suite

100,

Elk

Grove, California 95758, attention:

Staff

Counsel, David Cullen.

The

DFEH

will be responsible for forwarding the settlement checks

to and obtaining a receipt acknowledging delivery

of

the settlement checks from Complainant.

4.2 Within

I 0 days

of

receipt by counsel for the City

of

a copy

of

this

Agreement fully executed by the Complainant and the DFEH, the City will dismiss its Appeal in

1he

Action.

4.3 Within

180

days

of

receipt by counsel for the City

of

a

copy

of

this

Agreement fully executed by the Complainant and the DFEH, the City shall have

its

current

3

of8

managers and supervisors working in the

Human

Relations Department and Fire Department

attend, at the

City's

expense, a training program covering disability-based employment

discrimination, reasonable accommodation, the interactive process, and the procedures and

nmedies

available under the Fair Employment

and

Housing Act.

4.4 Within

30 days

of

receipt

by

counsel for the City

of

a copy

of

this

.t\greement fully executed by Complainant and the DFEH,

the

City shall sign and post c1ear and

l·~gible

copies

of

the notices conforming to Attachments A and B to the FEHC Decision and

Order. These notices shall not be reduced in size, defaced, altered

or

covered

by

any material.

/~ttachment

A shall

be

posted for a period

of

90

working days. Attachment B shall

be

posted

rcrmanently.

4.5 After the

City's

satisfaction

of

all is obligations in 4.1 through 4.4, the

City shall notify the

DFEH

in writing

of

its compliance.

5. Denial

of

Liability.

Complainant and the DFEH acknowledge that the City has denied and continues

t•)

deny any and all liability for

any

claims relating to Complainant (including, without limitation,

the claims asserted in the Action). Complainant expressly recognizes that the making

of

this

;~greement

does not in any

way

constitute an admission

or

concession

of

wrongdoing on the part

c•fthe City.

6.

Waiver

of

California Civil

Cod~:

S~rction

1542.

6.1 Complainant agrees that by signing this Agreement and in return for the

,.onsideration described above, Complainant gives

up

any and all rights Complainant may have

to obtain any monetary award against the City, through

any

administrative agency, court

or

other

f(>rum.

Complainant understands and expressly agrees that this Agreement extends to all claims

c1f

every nature and kind whatsoever, known

or

unknown, suspected

or

unsuspected, past

or

present, which Complainant has

or

may have against the City, and

all

rights under Section 1542

of

the California Civil Code are hereby expressly waived. Such Section 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

his settlement with the debtor.

6.2 Complainant agrees that Complainant has read this Agreement, including

the waiver

of

California Civil Code section 1542, and that Complainant has had the opportunity

to

consult counsel about the Agreement and specifically about the waiver

of

Section 1542, and

Complainant understands the Agreement and the Section 1542 waiver, and freely and knowingly

4

ofS

e'1ters into this Agreement. Complainant acknowledges that Complainant may hereafter discover

filets different from

or

in addition to those Complainant knows or now believes to be true with

n:spect to the matters released

or

described in this Agreement, and Complainant agrees the

rdeases and agreements contained herein shall be and will remain effective

in

all respects

notwithstanding any later discovery

of

any such different

or

additional facts. Complainant

hereby assumes any and all risk

of

any mistake in connection with the true facts involved

in

the

matters, disputes

or

controversies described herein

or

with regard to any facts which are now

unknown to Complainant relating thereto.

7.

Waiver

of

Future Employment.

Due to their irreconcilable differences, Complainant no longer wishes

to

pursue any

employment relationship with the City

of

Merced, and the City

of

Merced

no

longer wishes to

pursue any employment relationship with Complainant. Therefore, Complainant agrees to

waive any right he may have to be instated or hired with the City

of

Merced, and to apply for

employment with, or become

in

any way employed with the City

of

Merced. Complainant agrees

that,

if

he knowingly

or

unknowingly applies for, is offered, accepts a position,

or

in any way

becomes employed with the City

of

Merced, the offer may be withdrawn

or

the employment

may be severed immediately without notice

or

cause. Subject to paragraph 3.4

of

this

Agreement, Complainant waives any right to seek legal or administrative redress

of

any kind for

events relating to the withdrawal

of

any offer, or termination

of

employment, as described

in

this

raragraph.

8.

Confidentiality and Non-Dispara&ement.

8.1

Except as noted elsewhere in Paragraph 8

of

this Agreement,

Complainant, and Complainant's attorneys

if

any, shall keep the existence, terms and conditions

c'

this Agreement, as well as the facts allegedly supporting his claims in the Action, completely

~pd

strictly confidential. Upon inquiry regarding the Action

or

any claim Complainant may have

bad against the City, Complainant and/or Complainant's representatives shall state only that the

matter has been resolved. Complainant acknowledges this is a material term

of

the Agreement,

that he can be sued for breach

of

this provision and that the City could seek a return

of

all or part

(tfthe consideration provided to Complainant.

8.2 The only exceptions to

Paragraph

8.1

are as follows:

8.2.1

If

the terms or conditions

of

this Agreement must

be

disclosed as

H:quired by law,

or

upon order

of

any court

of

competent jurisdiction in any action in which

Complainant is a party,

or

if

Complainant is subpoenaed as a witness; or

8.2.2

If

the terms or conditions

of

this Agreement must be disclosed to

remedy a breach

of

any term

or

condition herein; or

8.2.3 The Complainant may inform any spouse, registered domestic

partner or legal counsel he has, and his tax or financial advisors, on the further condition that

Complainant advises such individuals in advance

of

disclosure that the terms and conditions

of

1he

Agreement are strictly confidential. Complainant agrees to be held liable for any and all

unpermitted disclosures

of

this Agreement by individuals identified in this paragraph.

5

of8

8.3

If

disclosure is to

be

made pursuant to Paragraph 8.2.1, Complainant or

Complainant's representatives shall immediately, but in no event more than five (5) business

duys from receipt

of

a request or order for such disclosure, and at least thirty (30) days prior to

any such disclosure, notify the City so,

if

it chooses,

it

can seek appropriate relief from a court

or

t·:bunal

of

competent jurisdiction, at the City's own expense, to prevent said disclosure.

8.4 Complainant agrees that he will make no public statements and take no

public action that disparages or is detrimental to the City, or would otherwise cause or contribute

tt)

the City being held in disrepute by the general public or employees.

8.5 The confidentiality provisions in this Agreement do not apply to the City

and the

DFEH. Any public statement or press release by the

DFEH

regarding the Action

or

this

Agreement will include a statement the City disputes liability and the resolution is without any

admission

of

liability by the City

9. Ar:reement

Not

to

Assi~t

Others

lp

Commencin&

or

Prosecutinr: Apy

Claim

Aeainst

the

City.

Complainant agrees and understands that, except as may

be

required by

subpoena, court order,

or

other force

of

laws, and except as specified in paragraph 3.4, he shall

N)t

in any way knowingly assist any individual

or

entity in commencing

or

prosecuting any

action or proceeding against the City. Absent legal compulsion, and except as specified in

puagraph

3.4, this Agreement bars Complainant from testifying, providing documents

or

i 1formation, advising, counseling

or

providing any other form

of

assistance to any person

or

entity who Complainant is aware, is considering making,

or

who

is

making, any claim against the

City.

10.

Breach

Q{Ar:reement.

Any

of

the parties to this Agreement may bring an action at law for its breach.

In

my

action at law permitted in this paragraph, the prevailing party, as determined by the court,

may

be

entitled to have their costs and reasonable attorney fees paid by the losing party.

11. Severability.

Excluding the release provisions in paragraphs 3 and 6,

if

any provision

of

this

t\greement is declared illegal

or

unenforceable by any court

of

competent jurisdiction or

arbitrator and cannot be modified to

be

enforceable, that provision will immediately become null

and void, leaving the remainder

of

this Agreement in full force and effect. If Complainant takes

any action to cha11enge any provision in this Agreement, Complainant shall immediately return

to the City the entire settlement sum in paragraph

4.

12. Con§truction.

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

6

of8

Agreement. This Agreement shall be construed and interpreted

in

accordance with the law

of

California.

13.

Intezration.

This Agreement represents the complete understanding between the parties. No

other promises or agreements shall be binding

or

shall modify this Agreement unless signed by

the parties hereto.

14. Execution.

This Agreement may be signed in counterparts and on separate signature pages.

1hese

separate signature pages will become part

of

the integrated Agreement. Facsimile

or

electronic executed copies

of

this Agreement shaiJ be enforceable

as

if

they were originals, and

facsimile or email exchange

of

executed copies

of

this Agreement shall bind the parties.

15.

Mutual &presentations. Cuyenants and Warranties.

Each

of

the parties to this Agreement represents, warrants, and agrees as follows:

15.1 Each party has had the opportunity to receive independent legal advice

f·om an attorney,

if

it

chose, with respect to the advisability

of

reaching a settlement

of

the

J,ction, the advisability

of

executing this Agreement, and the ramifications

of

the meaning

of

California Civil Code section 1542.

15.2

No

party has made any statement or representation to any other party

r!garding any fact relied upon

in

entering into this Agreement, and no party has relied upon any

statement, representation or promise

of

any other party (or

of

any officer, agent, employee,

r;presentative or attorney for the other party) in executing this Agreement or

in

making the

settlement provided for herein, except as expressly stated in this Agreement.

15.3 Each party has entered into this Agreement freely and voluntarily and has

nade

an investigation

of

the facts pertaining to the settlement, this Agreement and all

of

the

matters relating thereto.

7

of8

A

TrEST:

15.4 Each party or responsible agent thereof has read this Agreement and

understands the contents hereof. Each

of

the persons executing this Agreement on behalf

of

the

respective parties is empowered to do

so and thereby binds this respective party.

DATED: October

'2012

DATED: October

'2.:?,

2012

DATED: October , 2012

COMPLAINANT:

RYAN

F.

STAIGER

CITY OF MERCED

By:

c::}-f:-~

~.

~~

..Jo

~

M,

DR-At--'\.16

c...e

(print name)

Its:

C:r..T-t

M~~

California Department

of

Fair Employment

and Housing

By:

------------------------

(print name)

Its:

-~---------------

CITY

CLEm:

APPROVED

AS

TO FORM:

(~l/;;J(JI-..s

ofs

•.jl/