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Item P09Meeting Date: April 16, 2008 Bulk Item: Yes No x Division: County AttorneX Staff Contact Person: Bob Shilling_er AGENDA ITEM WORDING: Approval of settlement agreement in the matter of Salvatore Zappulla v. Monroe County. ITEM BACKGROUND: Sal Zappulla filed a petition with the Monroe County Career Service Council challenging his dismissal from his position. Prior to the Career Service hearing that had been scheduled to begin on April 10, 2008, staff was able to negotiate a proposed resolution of the dispute. At this writing staff is drafting a settlement agreement which could not be completed by the agenda deadline. This item is placed on the agenda as a placeholder. PREVIOUS BOCC ACTION: ►wt CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS - Approval. TOTAL COST: to be provided BUDGETED: Yes xx No COST TO COUNTY: to be provided SOURCE OF FUNDS: VENUE PRODUCING: Yes No xx AMOUNT PER MONTH Year APPROVED BY: County Atty xx ONB/Purchasing n/a Risk Management n/a DOCUMENTATION: Included Revised 2/05 Not Required to be provided AGENDA. ITEM # BEFORE THE MONROE COUNTY CAREER SERVICE COUNCIL SALVATORE R. ZAPPULLA, Petitioner, Vs. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, Respondent. SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release (the "Agreement") is entered into by and between SALVATORE R. ZAPPULLA ("EMPLOYEE") and the BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA NAME ("EMPLOYER"). This Agreement shall at all times include EMPLOYER and its current and former Commissioners, Administrators, employees, assigns and successors in interest, representatives, agents, and insurers, both in their representative and individual capacities. All references to EMPLOYER expressly include all of the aforementioned individuals and the County as a duly created political subdivision of the State of Florida. RECITALS WHEREAS, EMPLOYER suspended EMPLOYEE effective August 22, 2007 and subsequently terminated EMPLOYEE'S employment, effective October 19, 2007 (the "Tennination Date"); WHEREAS, EMPLOYEE filed a Petition with the Monroe County Career Service Council challenging his suspension and termination asserting a claim for reinstatement arising out of and MI-1201 1 1 v2 .q relating to EMPLOYEE's employment by EMPLOYER, and the suspension and termination thereof, WHEREAS, EMPLOYEE acknowledges that, except as provided herein, the EMPLOYER has paid EMPLOYEE all compensation due to EMPLOYEE in connection with EMPLOYEE'S employment through the Termination Date; WHEREAS, EMPLOYER believes it acted lawfully and properly in all respects, but wants to avoid the legal fees and expenses that necessarily will result from further litigating this matter; WHEREAS, EMPLOYEE warrants that he is satisfied with the representation provided to him by the counsel he chose to retain and further warrants that he has had adequate opportunity to consult said attorney prior to executing this Agreement and has had an adequate opportunity within which to consider this Agreement; and WHEREAS, EMPLOYER and EMPLOYEE, who have received independent legal advice in this matter, wish to settle this matter in a manner that will obviate the need for further litigation of this action and that will preclude the bringing of any other claim, cause, proceeding or action against each other, by exchanging the mutual promises contained in this Agreement; NOW, THEREFORE, EMPLOYER and EMPLOYEE agree as follows: AGREEMENT Dismissal of the Petition. The parties shall promptly file with the Career Servcie Council a Joint Stipulation for Dismissal with Prejudice. The parties, through their respective counsel, agree to cooperate and execute such other documents or pleadings as may be necessary to obtain a dismissal of the matter with prejudice. 2. Release of Claims Against EMPLOYER. Except as otherwise specifically stated in this Agreement, EMPLOYEE voluntarily and irrevocably releases and forever discharges M I-1201 1 1 v2 EMPLOYER, and each and all of EMPLOYER'S Commissioners, Administrators, employees, • agents, representatives, successors, insurers, predecessors and assigns (all collectively referred to herein as the "Released Parties") from and against any and all claims, obligations, debts, liabilities, demands, or causes of action of any kind whatsoever (all collectively referred to herein as the "disputes") with respect to any alleged acts occurring before the effective date of this Agreement. The disputes released by EMPLOYEE include, but are not limited to, any and all disputes against the Released Parties concerning EMPLOYEE's employment, and the termination of EMPLOYEE's employment with EMPLOYER. The disputes released by EMPLOYEE herein include those known or unknown, actual or contingent, in law, in equity, or otherwise, and whether based in tort, contract, statute, special act, ordinance, or any other basis. This release includes all disputes by which EMPLOYEE could seek equitable relief, and actual., compensatory, consequential, punitive, special, multiple or other damages, expenses (including attorneys' fees and costs), and all other reimbursements or charges of any kind. The disputes released by EMPLOYEE include any and all disputes EMPLOYEE has or may believe to have against the Released Parties arising under any federal, state, local or foreign statute or regulation, including, without limitation, those under or relating to the federal Fair Labor Standards Act, unfair, discriminatory or retaliatory employment practices (for example, including, but not limited to employment discrimination or retaliation based on race, national origin, sex, sex harassment, religion, age, disability or handicap), the Florida Civil Rights Act, § 760.01 et seq., Florida Statutes, the Florida Whistleblower's Act § 448.101 et seq., Florida Statutes, the federal Civil Rights Acts of 1866, 1871, 1964 and 1991 (including Title VII), the federal Americans with Disabilities Act, the federal Employee Retirement Income Security Act of 1974, the Internal MI-1201 I IQ Revenue Code, federal and state statutes regarding "whistleblower" activities, the federal Family and Medical Leave Act of 1993, the federal Rehabilitation Act of 1973, the federal Consolidated Omnibus Budget Reconciliation Act of 1985 (]mown as "COBRA"), any and all other federal and state employment -related statutes and regulations, any other federal or state law prohibiting discrimination or retaliation, and any other employment -related local ordinance. The disputes released by EMPLOYEE also include any and all disputes EMPLOYEE has or may believe to have against the Released Parties in contract or at common law, including, but not limited to, breach of oral, written and/or implied contract, breach of an implied covenant of good faith and fair dealing, wrongful discharge under any theory, including for lack of good cause, in violation of public policy, constructive discharge, intentional and/or negligent infliction of emotional distress, negligent retention and supervision, assault, battery, negligence, misrepresentation or fraud of any kind, duress, unfair dealing, breach of fiduciary or other duty, invasion of privacy, defamation, and interference with contract and/or prospective economic advantage. The reference herein to specific statutory, contract and common law claims is in no way intended to limit the disputes released by EMPLOYEE. EMPLOYEE intends that the disputes released herein be construed as broadly as possible to cover any and all disputes EMPLOYEE may have or believes to have against the Released Parties. hi that regard, EMPLOYEE further acknowledges that EMPLOYEE may later discover facts in addition to, or different from those which EMPLOYEE now knows or believes to be true with respect to the subject matter of this Agreement. EMPLOYEE agrees that any such difference in the facts shall not affect this Agreement, that EMPLOYEE assumes the risk of any such difference in the facts, and that EMPLOYEE further agrees that this Agreement shall remain in full force and effect, and not be MI-12011 IQ subject to rescission by reason of any such difference in the facts. It is EMPLOYEE's intention to fully, finally and forever resolve and release any and all disputes EMPLOYEE may have or believe to have against the Released Parties with respect to any alleged acts occurring before the effective date of this Agreement, whether those disputes presently are known or unknown, suspected or unsuspected. Thus, EMPLOYEE acknowledges and agrees that this Agreement constitutes a full and final bar to any and all claims and charges of any type that EMPLOYEE now has or may have against the Released Parties as of the effective date of this Agreement. 3. Consideration to be Provided to EMPLOYEE As consideration for this Agreement, EMPLOYER shall pay to EMPLOYEE, and EMPLOYEE agrees to accept, the compromised total of one year's salary of $91,462.47, the cash equivalent of one years COBRA payments of $10,014.60, and the cash equivalent of 225 hours of unused vacation leave at $9,893.78 for a gross settlement sum of $111,370.85 (the "Settlement Sum"). As additional consideration, the EMPLOYER waives any right to collect any fees or costs associated with any public record's request pursuant to chapter 119 of Florida Statutes, that are unpaid as of April 15, 2608. Payment of the Settlement Sum shall be made in one lump -sum check made payable to EMPLOYEE. In addition to the Settlement Sum, EMPLOYER agrees to pay EMPLOYEE'S attorney's fees and costs as more fully set forth in paragraph 16. Payment of the Settlement Sum shall be delivered to EMPLOYEE's counsel, the law firm of RUMBERGER, KIRK, AND CALDWELL within twenty (20) days from the Effective Date of this Agreement, as set forth in paragraph 17, below. 4. Taxes and Indemnification. EMPLOYEE acknowledges and agrees that EMPLOYER makes no representations of any kind as to the income tax or other tax consequences MI-1201 I I Q in connection with the payment of the Settlement Sum. EMPLOYEE further acknowledges and agrees that lie is responsible for the payment of all taxes that he owes or may subsequently be determined by any appropriate taxing authority to be owed by him in connection with the payment of the Settlement Sum. EMPLOYEE hereby agrees to indemnify and hold EMPLOYER harmless from and against any and all losses, costs, expenses (including reasonable attorneys' fees), interest, payments or penalties incurred by EMPLOYER on account of EMPLOYEE's failure to pay any tax properly payable by him in connection with the payment of the Settlement Sum. EMPLOYEE further agrees not to seek payment from or make any claim against EMPLOYER, for any loss, cost, damage or expenses if a claim or adverse determination is made in connection with the tax treatment of the Settlement Sum. EMPLOYEE understands and agrees that EMPLOYER has no duty to defend against any claim or assertion in connection with EMPLOYEE's tax treatment of the Settlement Sum, and EMPLOYEE agrees to assume full responsibility for defending against any claim or assertion in connection with his tax treatment of the Settlement Sum. 5. Adeauate Consideration. EMPLOYEE agrees and warrants that the payment provided for by this Agreement exceeds anything of value to which EMPLOYEE would otherwise be entitled under any of EMPLOYER's policies, plans, practices and/or procedures, or pursuant to any prior agreement or contract with EMPLOYER. Except as expressly provided for in this Agreement, EMPLOYEE understands and acknowledges that except for vested benefits, if any, he is not entitled to any other payment or reimbursement from EMPLOYER of any type, kind or description including, without limitation, salary, severance, bonus, other distribution, notice, vacation, holiday, medical, dental, life insurance or other benefits, annuity or other contributions or expenses, and that no representations have been made to him to the contrary. MI-120111Q 6. Covenant Not to Sue. EMPLOYEE promises that EMPLOYEE will never sue the Released Parties concerning any claims EMPLOYEE is waiving and releasing herein, and that EMPLOYEE will not assert a charge of discrimination and/or retaliation against the Released Parties that may have existed at the time of the signing of this agreement. 7. Non -admission of Liability. This Agreement is a compromise of disputed claims. It is not to be construed as an admission of liability on the part of the parties that any act or omission by them was unlawful or wrongful, or violated any federal, state or local law, policy, rule or regulation. It is solely intended to finally resolve any and all claims made between the parties. 8. Waiver of Re-employment. EMPLOYEE understands and agrees that the Released Parties, as that term is defined in paragraph 2 above, shall be under no obligation to reinstate him as an employee or to consider him for employment or re-employment. EMPLOYEE waives any claim or entitlement to such reinstatement which is denied. EMPLOYEE agrees that if he is subsequently employed or retained by any of the Released Parties in any capacity, including as an independent contractor or consultant, he shall promptly and voluntarily resign, and this Agreement constitutes good and sufficient reason not to employ or retain EMPLOYEE and to terminate their relationship should EMPLOYEE inadvertently be hired or retained. EMPLOYEE agrees not to knowingly apply for employment, either permanent or temporary, with any of the Released Parties, and agrees not to knowingly solicit work from any of the Released Parties, and understands that such application or solicitation is a material breach of this Agreement. 9. Complete Bar To Recovery. EMPLOYEE agrees that, with respect to the claims released herein, EMPLOYEE is waiving not only EMPLOYEE's right to recover money or other MI-12011 IQ relief in any action that EMPLOYEE might institute, but also that EMPLOYEE is waiving any light to recover money or other relief in any action that might be brought on EMPLOYEE's behalf by any other person or entity including, but not limited to, the EEOC or any other federal, state or local government agency or department. EMPLOYEE hereby assigns and transfers to EMPLOYER any and all rights to receive any sums of money recovered on EMPLOYEE's behalf in any action whereby any other party asserts claims released herein against any of the Released Parties. 10. No Disputes Pending Or Assigned By EMPLOYEE6 EMPLOYEE represents that EMPLOYEE currently has no other claim of any kind against any of the Released Parties pending in any court, or in any federal, state, or local government agency, or in any arbitration - administration organization. EMPLOYEE represents and warrants that as of the day on which this Agreement is fully signed by all parties, EMPLOYEE has not assigned, transferred, or hypothecated, or purported to assign, transfer, or hypothecate any of the claims released herein to any person, firm, corporation, association, or entity whatsoever. EMPLOYEE hereby agrees to indemnify and hold harmless the Released Parties against, without limitation, any and all rights, claims, warranties, demands, debts, obligations, liability, costs, expenses (including attorneys' fees), causes of action, and judgments based on, arising out of, or connected with any such claim, or any transfer, assignment, or hypothecation, or purported transfer, assignment, or hypothecation of any such claim. 11. No Workers' Compensation Iniury Or Illness EMPLOYEE declares and represents that, as of the Termination Date, EMPLOYEE has suffered no on-the-job or work - related accident or injury, occupational disease or disability whether temporary, permanent, partial or total. MI-1201I IQ 12. No Assistance In Litigation Against EMPLOYER EMPLOYEE promises and agrees that EMPLOYEE will refrain from voluntarily participating in private litigation or threatened private litigation brought by other persons against EMPLOYER, and will also refrain from voluntarily providing assistance of any type to any party in connection with any pending or threatened private litigation by any other person(s) against EMPLOYER. 13. No Representations. The parties represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by the other party, or by any agents, representatives or attorneys of the other party, with regard to the subject matter, basis or effect of this Agreement or otherwise, other than as specifically stated in this Agreement. The parties further declare that in making this Agreement they each rely entirely upon their own judgment, beliefs and interests and the advice of their respective counsel and that they have been afforded a reasonable time in which to consider this Agreement. 14. Controlling Law / Joint Product This Agreement is made and entered into in the State of Florida and shall in all respects be interpreted, enforced, and governed under the laws of said state. The parties acknowledge that this Agreement is a joint product and shall not be construed for or against any party on the ground of sole authorship. 15. Authority to Bind. The individual signing this Agreement on behalf of EMPLOYER warrants and represents that he/she is duly authorized to sign this Agreement on behalf of and bind EMPLOYER. 16. Attorneys' Fees and Costs. EMPLOYER agrees to pay and EMPLOYEE agrees to accept a sum of $38,344.99 in attorney's fees and costs in connection with the matter, the settlement of the matter, and this Agreement. A check for said sum shall be made payable to MI-1201I IQ Rumberger, Kirk, and Caldwell and be delivered with the check for the Settlement Sum as set forth in paragraph 3. Notwithstanding the foregoing, if any action or proceeding is brought to enforce or interpret the terns of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of court, including reasonable attorneys' fees at all trial and appellate levels. IT Time To Consider Agreement/Effective Date EMPLOYEE acknowledges that he has had adequate time after receipt of this Agreement to consider whether to sign this Agreement. EMPLOYEE acknowledges the EMPLOYER is a public body which may only adopt this agreement in a duly noticed, public meeting. Accordingly, EMPLOYEE acknowledges that although EMPLOYEE has executed this Agreement first, this Agreement shall not become effective unless it is adopted by EMPLOYER consistent with Florida law. The date the EMPLOYER adopts this agreement shall be the "Effective Date" of this agreement. 18. Miscellaneous. Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining parts, terms or provisions shall not be affected thereby and said illegal, unenforceable or invalid part, term or provision shall be deemed not to be part of this Agreement. No provisions of this Agreement may be modified, altered, waived or discharged unless such modification, alteration, waiver or discharge is agreed to in writing and signed by the parties hereto. No waiver by either party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. MI-120111v2 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument Facsimile signatures shall be considered as valid signatures. This Agreement sets forth the entire agreement between the parties hereto and fully supersedes any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject matter hereof. YOU EXPRESSLY ACKNOWLEDGE, REPRESENT, AND WARRANT THAT YOU HAVE READ THIS AGREEMENT CAREFULLY; THAT YOU FULLY UNDERSTAND THE TERMS, CONDITIONS, AND GNIFICANCE OF THIS SI AGREEMENT; THAT YOU HAVE BEEN ADVISED CONSULT WITH AN ATTORNEY CONCERNING THIS AGREEMENT; THAT YOU HAVE HAD A FULL OPPORTUNITY TO REVIEW THIS AGREEMENT WITH AN ATTORNEY; THAT YOU UNDERSTAND THAT THIS AGREEMENT HAS BINDING LEGAL EFFECT; AND THAT YOU HAVE EXECUTED THIS AGREEMENT FREELY, KNOWINGLY AND VOLUNTARILY. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT. THIS AGREEMENT HAS IMPORTANT LEGAL CONSEQUENCES. WITNESS Printed Name Date ATTEST DANNY L. KOLHAGE, CLERK as DEPUTY CLERK Date M I-1201 I I v2 EMPLOYEE SALVATORE R. ZAPPULLA BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA EMPLOYER By. CHARLES "SONNY" McCOY MAYOR MONFj0 C UNTY TTORNEY A �5 M: OBERT B. HIL INQ R, JR. AS IB aHIHF T C TY ATTORNEY Data