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TTLEMENT GREEMENT ND RELE SE

This Settlement Agreement and Release ( Agreement)

is

entered into between the

City o Carmel-by-the-Sea (City) and Margaret Perotti (Perotti) with respect to the following

facts.

WHEREAS, Perotti began her employment with City

in

1990. Prior to her termination

on March 26, 2014, Perotti was employed by City in numerous capacities in the departments

of Administration, Public Works and Planning and Building (Code Enforcement Officer);

WHEREAS, Perotti raised claims of wrongful termination and violation of due process

of law, discrimination, harassment, retaliation, defamation, deprivation o her property

interest, and breach of contract, among others, with City relating to her employment with the

City and her termination (hereinafter Claims ) ;

WHEREAS, City and Perotti both now desire to compromise and settle the

aforementioned Claims and all claims, demands, complaints, actions, charges, litigation, and

causes of action, whether now known or unknown, that arise from the facts alleged in the

Claims or arising from Perotti's Claims against City or any o its members of the City Council,

officers, agents, deputies, representatives, servants, employees, successors, assigns,

predecessors, divisions, branches, or attorneys (collectively The Releasees ;

WHEREAS, the parties hereto acknowledge and agree that neither this Agreement nor

the act of entering into it constitute an admission , stipulati

on

or concession of liability, express

or implied,

on

the part of any party concerning any fact or matter in any way connected with

the subject matter o this Agreement. Perotti acknowledges City is providing her with the

consideration mentioned herein for economic considerations

in

order to resolve all matters

related to her prior employment and termination which could be the bas is o a claim or cause

o action or verdict or judgment based on alleged events occurring before the effective date of

this Agreement by avoiding the costs o litigation and trial.

NOW, THEREFORE,

in

consideration of the mutual covenants set forth below, the

parties agree as follows:

1. All o the recitals listed above are material provisions of this Agreement.

2.

In

return for the consideration discussed in this Agreement, Perotti , and on

behalf of her heirs, successors , and assigns, on the one hand; and City, its successors,

assigns, employees, officers, and directors,

on

the other hand; agree to forever release and

discharge each other and each other's predecessors, successors, employees, officers,

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directors, and anyone else acting on behalf of such Releasees from any and all claims,

charges, liabilities, liens, damages and causes of action, obligations, and duties, known or

unknown, which the non-releasing party may have, or may claim to have, aga inst any o the

Releasees arising out o or, in any way related

to

Perotti's employment with City or any of the

Releasees, including any contractual or employment relationship or involvement, save and

except for the obligations stated in this Agreement. This Agreement specifically extends to,

without limitation, claims or causes of action for defamation, deprivation of property interest,

violation of due process, discrimination, harassment, retaliation breach of contract, wrongful

termination, breach o an express or implied contract, breach of the covenant of good faith

and fair dealing, breach o fiduciary duty or any other duty, fraud , misrepresentation,

interference with a contractual or other business relationship, infliction of emotional distress,

discrimination, harassment, disability, loss o future or past earnings, whistleblower-related

claims and claims brought under the California State Constitution, the United Sates

Constitution, or applicable state and federal fair employment statutes and regulations

including but not limited to: the Civil Rights Act of 1964, as amended; the Fair Labor

Standards Act, as amended; the Worker Retraining and Notification Act of 1988, as

amended; the Americans with Disabilities Act of 1990, as amended; the Rehabilitation Act of

1973, as amended ; the Employee Retirement Income Security Act of 1974, as amended; the

Age Discrimination in Employment Act, as amended; and the California Fair Employment and

Housing Act,

as

amended. Nothing

in

this Agreement shall affect the U.

S.

Equal

Employment Opportunity Commission's (hereinafter EEOC) rights and responsibilities to

enforce the Civil Rights Act of 1964, as amended; the Age Discrimination Employment Act

o

1967,

as

amended; or any other applicable law, nor shall anything in this Agreement be

construed as a basis for interfering wi

th

Perotti's protected right

to

file a charge with, or

participate in an investigation or proceeding conducted by, the

EEOC

or any other state,

federal or local government entity; provided, however, if the EEOC or any other state, federal

or local government entity commences an investigation on Perotti's behalf, Perotti specifically

waives and releases her right, i any, to recover any monetary or other benefits or relief o

any sort whatsoever arising from any such investigation.

Perotti further agrees that upon the effective date of this Agreement she will

notify the California Department of Fair Employment and Housing (hereinafter DFEH) and

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EEOC that she has settled

all

Claims against City,

and

request

DFEH and

EEOC to dismi

ss

or rescind her DFEH and EEOC claim or cla ims with prejudice.

3. City shall reinstate Perotti to a permanent, full-time position as Community

Activities Coordinator/Assistant, Step Five, which requires occasional night

and

weekend

duties as assigned. Perotti agrees

to

this provision and the assignment of work hours

wh

i

ch

are outside of the normal workday or weekly schedule. Said position of Community Activities

Coordinator/Assistant shall

be

incorporated into LIUNA bargaining

un

i

t.

Back pay and full

benefits except for medical coverage which is limited

to

90-day coverage prior to

reinstatement, including but not limited to PERS credits which shall

be

reinstated at the

2

at

55

years of age, union retirement(s), deferred compensation, longevity pay, salary base at

no

less than Perotti' was receiving

on

March

27,

2014, vacation

and

sick leave accrual,

and

holiday pay and General Leave Day pay for all applicable dates, will

be

provided by City

to

Perotti for the period of March 27, 2014, to the date of Perotti's actual return to active duty

wi

th

City, subject to all applicable federal , state and local withholding taxes and deductions .

March

27,

2014, shall be Perotti's official

re

instatement date. It is the intent of the parties that

Perotti be reinstated with City at no loss of pay or benefits except for the 90-day retroactive

medical insurance coverage

as

set forth in

th

is paragraph.

No

later than December 31, 2014, City also shall pay directly to Perotti's private

attorney, Michelle Welsh, of Stoner, Welsh and Schmidt, as a lump-sum payment not

to

exceed 15,000, for all attorney's fees and costs in connection with the aforementioned

Claims to date

of

reinstatement with City. City shall also pay directly

to

UPEC Local 792 for

all costs, not to exceed 5,000,

in

connection with the aforementioned Claims to date of

reinstatement with City.

In

a good fa ith effort to resolve all claims and in recognition of the

City's sincere efforts to make Perotti whole UPEC Local

792

agrees

to

waive attorney's fees.

City is not providing any tax or legal advice, and the City makes

no

representations regarding tax obligations or consequences, if any, related to the payments or

the Agreement.

f

any claim is asserted against the City by any taxing authority with respect

to this sum, Perotti agrees to hold City harmless,

and

to defend and indemnify City and the

Releasees from any cost, loss, liability, expense, penalty, or attorneys' fees arising from the

payments set forth above.

4. Perotti releases City and

all

of the Releasees from any and all complaints,

charges of discrimination or harassment, or related complaints or charges, requests for

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information or grievances that are based on facts relating to Perotti s employment that

occurred up

to

the date she executes this Agreement. Perotti agrees

to

withdraw or to

dismiss, with prejudice, any other complaint, claim, lawsuit, request for information or

grievance that she has filed against City or any o the Releasees that are based upon facts

that occurred up to the date she executes this Agreement. This Agreement extends to any

such complaint, claim, request for information, lawsuit, grievance, or charge filed in any state

or federal court, with any administrative body, agency, board, commission or entity

whatsoever, relating to her employment or employment relationship with City.

5 Perotti and City, together with their respective agents, assignees and

successors hereby fully, irrevocably, and unconditionally release each other from any and all

claims, actions, causes o action, judgments, liens, indebtedness, damages, obligations,

losses, liabilities, costs, claim for attorneys fees or costs, and all other claims and rights o

action o all kinds and descriptions, which they have or may have, whether known or

unknown, suspected or unsuspected, which were raised or might have been raised, or arise

out of, or are connected with , Perotti s termination

o

employment, her reinstatement, and the

allegations made

in

the Claims.

6. Perotti acknowledges that she enters into this Agreement voluntarily, and also

expressly acknowledges that she has been informed o

and

is familiar with California Civil

Code section 1542 which provides 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.

Perotti expressly waives the provisions o California Civil Code section 1542,

and further waives any rights she may have to invoke said provisions now or in the future with

respect

to

the releases set out in this Agreement. Perotti intends to fully, finally, and forever

settle all Claims and hereby agrees to accept and assume the risk that any fact with respect

to any matter in this Agreement may hereafter be found to be other than or different from the

facts she believed at the time

o

this Agreement to be true, and agrees that this Agreement

shall be and will remain effective notwithstanding any such differences in fact.

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7.

The City acknowledges that City enters into this Agreement voluntarily,

and

also

expressly acknowledges that .City has been informed of and is familiar with California Civil

Code section 1542 which provides 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

SEITLEMENT WITH THE DEBTOR.

City expressly waives the provisions of California Civil Code section 1542,

and

further waives any rights City may have

to

invoke said provisions now or in the future with

respect to the releases set out in this Agreement. City intends

to

fully, finally, and forever

settle all Claims and hereby agrees to accept and assume the risk that any fact with respect

to any matter

in

this Agreement may hereafter be found

to

be other than or different from the

facts City believed at the time

o

this Agreement to

be

true, and agrees that this Agreement

shall be and will remain effective notwithstanding any such differences in fact.

8. Perotti hereby represents and warrants that she has had adequate information

concerning the Claims

to

make an informed decision and has , independently, and without

reliance on City, and based upon such information that she has deemed appropriate, made

her own analysis and decisions to enter into this Agreement.

9. City hereby represents and warrants that City has had adequate information

concerning the Claims to make an informed decision and has, independently, and without

reliance on Perotti, and based upon such information that they deemed appropriate, made

their own analysis and decisions to enter into this Agreement.

10. Perotti understands and expressly agrees that this Agreement shall bind and

benefit any spouse, domestic partner, heirs, agents, attorneys, representatives, and assigns.

11. City understands

and

expressly agrees that this Agreement shall bind

and

benefit its past and present officials, officers, agents, and employees.

12. Except as provided herein each party bears its own costs and attorneys fees in

relation to all expenditures made in regard to Claims being settled herein.

13. This Agreement shall supersede and render null and void any and all prior

agreements between the parties hereto, concerning the subject matter hereof, excepting

therefrom the Memorandum o Understanding between City and LiUNA Local 792, regarding

Perotti s position as well as Constitutional property right protections in her position.

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14. Perotti represents that she has had a full opportunity to discuss the terms of this

Agreement with representatives

of

her own choosing, including J. Ocean Mottley, Staff

Attorney for the United Public Employees of California (UPEC) Local 792, and her attorney,

Michelle Welsh,

of

Stoner, Welsh and Schmidt, and that she has carefully read and fully

understands all of the provisions of this Agreement. Perotti represents that she is voluntarily

entering into this Agreement without coercion. Perotti understands that the waivers she has

made and the terms she has agreed to herein are knowing , conscious, and with the full

appreciation that Perotti is forever foreclosed from pursuing any of the rights so waived. No

promise, inducement,

or

agreement not expressed herein has been made to either party in

connection with this Agreement.

15. City represents that City has had a full opportunity to discuss the terms of this

Agreement with representatives of its own choosing and that the City has carefully read and

fully understands all

of

the provisions

of

this Agreement. City represents that it

is

voluntarily

entering into this Agreement without coercion. City understands that the waivers City has

made, and the terms City has agreed to herein, are knowing , conscious, and with the full

appreciation that City is forever foreclosed from pursuing any of the rights so waived. No

promise, inducement, or agreement not expressed herein has been made to either party

in

connection with this Agreement.

16. City shall segregate and seal all records from Perotti s personnel file

commencing with the beginning

of

the City s investigation into Perotti, October 17, 2012 to

date of reinstatement, but it is understood that said sealed portion

m y

be examined by

federal, state or local administrative agencies upon request or presentation of a Court Order.

City and Perotti agree that City will expunge and destroy the sealed records one

(1)

year from

the date of execution of this Agreement, or applicable statute of limitations, whichever later

occurs.

17. This Agreement is executed and delivered in the State of California and the

rights and obligations of the parties hereunder shall be construed and enforced in accordance

with the laws of the State of California.

18. No waiver by any party of

ny

breach of

ny

term or provision of this Agreement

shall be construed to be, nor shall be, a waiver of any preceding, concurrent or succeeding

breach

of

the same or any other term or provision

of

this Agreement.

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19. Perotti and City acknowledge that, by reason of City's obligations pursuant to

the California Public Records Act (Government Code Sections 6250 et seq .) City is required

to provide a copy

o

this Agreement, upon request, to members of the public.

20. Perotti and City acknowledge and agree that upon full execution of this

Agreement by both parties a joint press release shall be prepared by City and , when mutually

agreed upon by Perotti and City, shall

be

submitted to the news media.

21

. The parties agree that this Agreement has no precedential value and shall not

be introduced as evidence

in

connection with any claim, legal proceeding, administrative

hearing or proceeding, or lawsuit except

in

a proceeding to enforce this Agreement.

22. This Agreement is deemed to have been drafted jointly by the parties. Any

uncertainty or ambiguity shall not be construed for or against any party based upon attribution

to the drafting party.

23.

This Agreement shall be admissible in counterparts. All executed copies are

duplicate originals and are equally admissible

in

evidence.

24. The parties agree to cooperate

in

good faith

in

executing and/or approving any

further documentation necessary to fully and finally resolve these Claims.

25. Perotti may revoke this Agreement within a period of seven (7) calendar days

following the day she executes this Agreement. Any revocation within this period must be

submitted, in writing , to Donald G. Freeman, City Attorney, City o Carmel-by-the-Sea, and

state, I hereby revoke my acceptance of our Settlement Agreement and Release

.

This

revocation must be personally delivered to Attorney Freeman, or mailed to Attorney Freeman

at P.O. Box 805, Carmel, California, 93921, and postmarked within seven (7) calendar days

o execution o this Agreement. This Agreement shall not become effective or enforceable

until the revocation period has expired. If the last day o the revocation period

is

a Saturday,

Sunday, or legal holiday

in

the state

in

which Perotti was employed at the time of her last day

o

employment, then the revocation period shall not expire under the next following day which

is

not a Saturday, Sunday, or legal holiday.

PEROTTI IS HEREBY ADVISED THAT SHE HAS UP TO TWENTY-ONE 21) CALENDAR

DAYS TO REVIEW THIS AGREEMENT TO CONSULT WITH N ATTORNEY PRIOR TO

EXECU

TI

ON OF THIS AGREEMENT.

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