Settlement Agreement and General Release City-mcinchak Fully Executed

8/20/2019 Settlement Agreement and General Release City-mcinchak Fully Executed

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SETTLEMENT AGREEMENT AND GENERAL RELEASE

THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereafter,

Agreemenr

or Release ) is made between the City

o a r m e l ~ b y t h e S e a

(which

includes

wHh

out limitation the City's legislative bodies, the City Council and its

members, and all other departments, commissions, agencies, boards, predecessors,

successors, subsidiaries, related entities, past, present, and future employees, officers,

directors, managers, agents, affiliates, assigns, and Insurers) (collectively, the City''

or

Carmen.

and Karen Mcfnchak, Successor

In

Interest to Decedent Steven Mclnchak

pursuant to the Order of The Honorable Thomas ·w Wills, March 30, 2015, a copy of .

which

is

attached to this Agreement (hereafter referred.to

as

PlaintifF).

RECITALS

1. Steven Mplnchak

was

employed by

armel

as Information Systems

Network Manager;

2. S

teve

n Mclnchak

sue

d the City alleging claims and causes

of

actlon as

set forth in the Superior Court

of

Monterey County Case Number 128962 (hereafter, the

·Lawsuir);

3.

The

City responded in the Lawsuit and denied ell claims asserted;

4.

2014;

During the pendency of the Lawsuit. Steven Mclnchak died on October 22,

5

Plaintiff Karen Mclnchak was appointed Successor

in

Interest to Decedent

Steven Mclnchak on March 30 , 2015;

6.

On May

16, 2014, Plaintiff filed a complaint

or

charge before the California

Department of Fair Employment and Housing; DFEH Number 251761-73463--R and

Seul 'ment

Agreement and General Release

Mclnchakv CannelM128062

Page 1

of



EEOC

Number

37A-2014-03845-C,

charging discrimination as more

fully

set forth in the

charging statement;

7.

On

May

12 2015

the

OFEH

issued

its Notice

of

Case

Closure

and

Right

to Sue;

8 The allegations of Plaintiffs lawsuit

and

the DFEH and EEOC charge

relate

to

Steven

Mclnchak's

e m p l o y m e n ~

9. Plaintiff

has

indicated

her

desire to

amend

her

existing

complaint to

add

additional

causes of action, which City intends to oppQse;

1

0.

Plaintiff and

City participated

in

a

Court-ordered settlement conference

on

May

29. 2015 and June 3, 2015, and on June 17,

2015

Plaintiff and City

recited on

the

record of the Court the basic terms of this Ag'reement that are more fully set forth

herein;

11.

Subject only to approval of this Agreement

in

the

Workers

Compensation

Appeals Board, the parties now desire to

resolve,

fully

and

forever, any and all

actual

and

potential

grievances, disputes, controversies, claims,

actions

and

lawsuits

which

exist among them, to settle all claims which were or could have

been

asserted

by

one

against the other; and to dismiss the Lawsuit with prejudice.

NOW,

THEREFORE, THE

PARTIES

AGREE

AS FOLLOWS:

T RMS

1. The City

and

its joint

powers

authorities

will

pay

to Karen

Mclnchak,

Successor

In

Interest to

Decedent

Steyen

Mclnchak,

and

her

attorneys, the

total

sum

of

275,000.00

to

be

aHocated

as set forth

in

this Agreement

and

a compromise

and

.

release

agreement

to

be approved

by

the

Workers

Compensation Appeals B.

oard.

Any

money paid

to

Plaintiff and her attorneys pursuant

to

this Agreement that

Is

allocated

to

Settlement Agreement and General Release

MciDcbak

v Cannel Ml28 62

Page2 of9



any civil lawsuit or administrative discrimination charge after calculations set

forth

below

shall

be paid

to the trust account of

Michelle A.

Welsh,

and

any

money

paid

pursuan

t

to

a workers' compensation compromise

and

release agreement·shall

be

paid

as

directed

by the

WCAB.

The total

sum

of- 275,000.00

as

allocated in this Agreement is full and

complete

consideration for any claims

related

to

Steven

Mclnchak's employment,

includi

ng but not lfmited to those previously set forth

in

the Lawsuit a

nd

the

DFEHIEEOC charge, and any claim for workers' compensation benefits .

2.

Except as set forth in any compromise and release In the

Workers'

Compensation Appeals Board, the funds

paid

will be alfocated

between

Plaintiff and

attorneys among themselves, and City

and

its agents will h v ~ no ffisponsibility for such

allocation. Any attorneys' fees paid

in

the Workers'

Compensation Appeals

Soard

will

be. ncluded In the total payment set forth in th is agreement. Therefore, any allocation

for workers' compensation benefits must include statutory or other attorneys

fees in

the

calculatfon

to total 275,000.00. Plaintiff's attorneys shall serve

notice on

City's

att

orn

eys

o

the total amount ordered

to be paid

in the workers'

compensation

action,

Including

benefits and attorneys fees. The Parties do not intend

that additionci1

sums

will

be

paid for attorneys' fees or other benefits over and above a

total settlement

amount o 275,000.00. Plaintiff and her attorneys in this act

ion

and

any workers'

compensation action shall be solely responsible for completing such calculations and

allocations. The amount finally paid in the allocation for Piaintiffs civil actions will be an

amou

nt that will, when added

to

all

workers'

com

pensation payments

and

workers

'

compensation

attorneys' fees, equal

2

75,000.00.

3.

Plaintiff shall be responsible for any and all applicable

taxes. An

Internal

Revenue Form 1099 will be issued to Plaintiff reporting the settlement payment of

Settlement Agreement and General Release

Mclnchak v Carmel

Ml28 62

Page 3

of



amount allocated to the civil action. Plaintiff understands and agrees that the City

makes no representation regarding the

tax

consequences

o

Plaintiffs receipt

o

the

above-specified funds and that any

tax

liability thereon is the sole responsibility

o

the

Plaintiff.

4 This Agreement will be subject. o approval or resolution.by the Workers'

Compensation Appeals Board. With such approval, this Agreement resolves and

forever settles all claims

o

Plaintiff, including any claims or rights arising from workers'

compensation law. Plaintiffs shall be responsible for

1he

allocation o an amount for a

compromise and release

o

any workers' compensation claim on behalf

o

Steven

Mclnchak. Such allocation shall be an amount that includes the amount o the

compromise and release and any attorney's fees assessed, awarded or designated.

The arflount o 200,000 o the Settlement shall be allocated to

the

workers'

compensation venue. Plaintiff shall be ·solely responsible for initiating and pursuing any

workers' compensation claim in the WCAB for the sole purpose of obtaining approval o

this Agreement, and City agrees to cooperate.

fuUy

in seeking approval

o

the Workers'

Compensation Appeals Board.

5 The payment(s) for any civil action and administrative claim not In the

workers' compensation jurisdiction identified

in

TERMS paragraph 1 through 4 above

shall be paid within thirty (30) days after attorneys for Clty are served with notice of the

approval

o

this Agreement by the Workers' Compensation Appeals Board· that includes

the total amount

o

the benefits and

a t t o m ~ y s

fees to be paid for the workers'

compensation claim.

6. Within five (5) business days o receipt

o

the payment(

s

identified in

TERMS paragraph 1 through 4 above, attorneys for Plaintiff will send to attorneys for

SettlementAgreement and General Releaae

Mclnchak v Carmel Ml28062

Page4 of



City

a

Request

for Dismissal with Prejudice of

the

lawsui t flied

in

Superior Court of

Monterey County Case Number 128062 to be thereafter filed by attorneys for City.

7.

In

addition to the Request for Dismissal and dismissal

with

prejudice of the

lawsuit Plaintiff will dismiss any

and all

complaints, claims, charges and any other

administrative or legal actions which are or

may be

pending relating to

the

allegations of

the Lawsuit or any DFEH or EEOC charge r any claim related

to

the employment of

Steven Mclnchak, including but not limited to the DFEH and EEOC charges identified as

DFEH Number .251761-73463-R and EEOC Number 37A-2014-03845-C.

8.

Plaintiff and her heirs, executors, assigns and successors fully

and

forever release, discharge and covenant not to sue ·or otherwise institute in any

way

actively participate in or voluntarily assist in the participation of any legal or

administrative proceedings against City with respect to any matter arising out of

connected

with

or related in any w y to Plaintiff's employment with

the

·Ctty, including

any

and

all liabilities. claims, demands, contracts, debts, obligations and causes of

action of every nature,

kind

and description,

in

law equity, or otherwise whether

r

not

now known or ascertained, which heretofore do or may exist, and jncluding any matter,

cause

or thing arising out of, relating

to

or connected with the Lawsuit

referred

to

above and any and allla'NSuits, complaints, claims charges

and

grievances brought by

Plaintiff against the City not set forth herein and

all p s t ~

pe

nd

ing or cont

emplated

EEOC. DFEH Workers' Compensation or other administrative

charges

relating to or

arising

from

Steven Mclnchak's employment

with

the City.

9. Plaintiff agrees, acknowledges and recognizes that this Agreement is a

•

no

fault settlement in light

of

dispu

ted

claims. The City

of

Carmel

and

involved

individuals deny liability or wrongdoing. Nothing contained in.this

Agreement

and

Settlement Agreement nd General Release Mclnchak v Carmel Ml28062

Page

5 of9



Release shall constitute or be treated as an admission of liability or wrongdoing by the

City

(including its legislative bodies, the City Council

and

its members departments,

commissions, agencies, bo ards, predecessors, successors, subsidiaries related

entities, past, present, and future employees, officers directors, managers, agents,

affiliates, assigns, and Insurers).

10. Plaintiff understands and expressly agrees that this Agre

em

ent eXtends to

all claims of eve

ry nature

and

kind, known or

unknown

suspected or unsuspected,

past

present or future, arising from or attributable to Steven Mclnchak s employment with the

City or any

cla

im or charge in Plaintiffs Lawsuit or DFEH or EEOC charges. Plaintiff

acknowledges that any and all rights grant

ed

under Section 1542 of the California Civil

Code or any analogous state or federal law or regulation are

he

reby expressly waived.

Plaintiff recognizes and acknowledges that factors which have induced the entry into

this Agreemen t might turn out to be incorrect

o r

different from what was previously

anticipated and Plaintiff expressly assumes all of the risks of this waiver of Catrfornia

Civil Code Section

1542

which reads as follows:

A

general

releasa.does

not

extend

to

claims wh

ic

h the

creditor

does not know or

suspect to

exist in his or her

f vor

t the time of

executing the release, which if known

by

him

or her must h ve

materially

affected

his

or

her

settlementwith

debtor.

11 . The ~ r t i e s agree

to

execute all documents and perform

all

acts

necessary to effectuate the terms

and

purposes of this Agreement, including,

withou

t

limitation, signing any documentation requi red

by

the Court the Workers Compensation

Appeals Board, or any administrative agency.

Settlement Agreement and General Release Mclnchak:v

Cannel

Ml28062

Page 6

of



12. The Parties agree that this Agreement has absolutely no precedential

value,

and

may not

be

introduced as evidence in connection

with

any claim, legal

proceeding, heari

ng

or

lawsuit, except in a proceeding to enforce

this

Agreement.

13 In the

event that any term, condition or provision of thfs Agreement

sha

ll

e held

by a

court of competent

ju

risdiction t

be

invalid or against public policy, that

term condition or provision shall

be

deemed

to

be

del eted

,

and

the rema

ining

terms,

conditions and provisions shall continue in force and- effect.

14

The validity, interpretation and performance of

th

is Agreement shall be

construed and Interpreted according to

the

laws of the State of Californ

ia

.

15 Plaintiff represents that there is no existing lien nor is any pe rson or entity

entitled to establish a lie·n for any payment or payments they

ha

ve made or will make to

Plaintiff or on behalf of Plaintiff as

a

consequence of any other matters arising out of or

connected with Steven Mclnchak s employment with the City or

the

lawsuit and any

and

all lawsuits and claims brought by Plainti

ff

not set forth herein. Pla intiff

will

indemnify

and

hold the City harmless from any liens, claims,

demand

s,

rights

or c

auses

ofaction of any kind or character against the City, whether for other causes of action,

medical ca re, unemployment and/or disability compensation , attorneys fees or

otherwise, involving Plaintlff and arising from or e c t e d to S

teven

M c l n c h a k ~

employment or the Lawsuit and any and all lawsuits and claims brought by Plaintiff

aga

inst the City no

t

set

forth

herein.

16.

Each signatory

to

this

Ag

reement

p r s n ~

and

w

arrants

t

hat

sh

e or he

has

full power to make the releases

and

agreements con tained herein. Plaintiff

expressly represents and warrants that she has not assigned, enc

umbered

or

In

any

rnanner transferred all or any portion of the claims covered by the releases and

Settlement Agreement and General eleue

Mclnchakv

Camtel

Ml28062

Page 7 of 9



agreements contained herein. In the event it is determined that Plaintiff made an

assignment, encumbrance or transfer contrary to the terms

Qf

this Agreement, Plaintiff

will

defend

and Indemnify

the

City for

any

resulting

costs

including the costs of

judgment

and

reasonable attorneys fees.

17.

This

~ r e e m e n t

Incorporates the recitation of settlement

on the

record

on

June 17 2015. There are

no

agreements, written or oral, express or implied, between

the parties hereto, concerning the subject matter hereof, other than those set forth

in

this

Agreement. Any modifications may only

be

effected by a writing signed by all

affected parties, and this Agreement

and

Release supersedes any prior written or oral

agreement concerning the subject matter of Its provisions. The parties agree that there

are no

representations, agreements, arrangements or understandings, either written or

oral between or among the parties relating to the subject matter of this Agreement that

are not fully expressed herein.

18.

f t becomes necessary to engage in legal proceedings

to

enforce or

interpret any

of

the provisions

of

this Agreement, the prevailing

party

shall

be

entitled

to

recover that party s reasonable attorneys

fees

and all expenses including but not

limited to statutory costs incurred in connection with such proceedings.

19. The Superior Court of Monterey County shall retain jurisdiction over the

,parties to enforce the settlement until performance

in

full of the terms of the settlement

pursuant to CCP § 664.6.

.

Each Party has had the opportunfty

to

participate

In

drafting

the

Agreement Any terms, conditions or provisions of the Agreement shall not be

construed against.one party and in favor

of

another by virtue

of

who

actually drafted or

circulated the Agreement.

Settlement

g r e e m e ~ t and

General Release

Mclnchalt v.

Carmel

Ml28062



21.

The Parties agree to execu

te in

counterpart

s,

with the same force and

effect as if executed

in

a single complete document.

22. The signature by the City below confirms that this settlementwas

considered and approved y the City Council of the City of Cannel-by-the-Sea.

23. Each Party acknowledges that she or it has been represented by counsel

in connection w ith this matter. Each signatory

also acknowledges

that this Agreement

has

been carefully read and fully understands

all

of the provisions of t

hi

s Agreement.

24. Plaintiff acknowledges that the waivers and re leases she has made a

re

knowing conscious and

with

fu ll appreciation that she is forever foreclosed from

pursuing any of the rights so waived.

Date:

7

/ ~ . ~

1

1

5

D a t e :

/s-

Approved

as

to

form:

Date: .... .

z :z t

1.-()IL

Date:

Date: ~ . p i a I s-

1

Settlement Agreement and General Relea5e

J

. __ . .. .. .

KAREN

MciNCHAK Successor

In

Interest to

Decede

Jl.

Steven

n c ~ a k

DOU

CHMITZ

·City Administrator C

STONER, WELSH

&SCH

MIDT

by

Michelle

Welsh Attorneys for Plaintiff

DON

FREEMAN

' •

w

•

City Attorney City of Carmel-by-the-Sea

LAVJ O F F I ~

O.F VINCENT

P.

HURLEY

by

VIncent

P

Hurtey

A t t 7 ) ~ y s

for

City of a r m e l b y t h a ~ S e a

Mc.Inchalcv.

Cmmel

Ml28062

Page of

Settlement Agreement and General Release City-mcinchak Fully Executed

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