HomeMy Public PortalAbout140_010_Release and Covenant Not to Sue RELEASE AND COVENANT NOT TO SUE
This RELEASE AND COVENANT NOT TO SUE (Release) is entered into by George B.
Bargeron (hereafter"Mr. Bargeron") and Judith Bargeron (hereafter"Mrs. Bargeron," and
collectively, with Mr. Bargeron, the Bargeron Parties), of Chatham County, Georgia.
In consideration of the Settlement Benefits and other good and valuable consideration,
the receipt and legal sufficiency of which are hereby acknowledged, the Bargeron Parties agree
as follows:
I. Definitions
For purposes of this Release, the following Definitions will apply:
A. Effective Date. The "Effective Date" of this Release is the eighth day after this
Release is signed.
B. Released Parties. The "Released Parties" are City of Tybee Island, Georgia(the
"City"), Diane Schleicher, Robert Bryson, the City's present and former Mayors, the City's
present and former Council members, and, with regard to all of the foregoing, their current and
former employees, insurers, agents, attorneys, predecessors, successors, heirs, executors,
administrators, representatives, and assigns.
C. Releasing Parties. The "Releasing Parties" are Mr. Bargeron, Mrs. Bargeron,
and their heirs, executors, attorneys, administrators, representatives, agents, successors and
assigns.
II. Terms
A. Settlement Benefits. In consideration for the Bargeron Parties' execution of
this Release, and the release of claims as set forth below, the City will provide the following
Settlement Benefits:
Settlement Amount: The City will pay with ten(10) days of the effective Date of
this Release a total amount of Forty Thousand Dollars ($40,000.00), inclusive of
all federal and state income and employee's portion of FICA and FUTA
withholding and taxes, in full and complete satisfaction of any and all claims,
known and unknown, that the Bargeron Parties have or may have against the
Released Parties, including but not limited to claims for attorney's fees; back pay;
front pay; physical injury and emotional distress, loss of reputation, humiliation,
embarrassment, pecuniary loss other than back pay, other compensatory damages,
loss of services and consortium, and expenses. The amounts payable shall be
allocated as follows:
1
(a) Three Thousand Two Hundred Dollars ($3,200.00) as gross pay,
less all federal and state income and employee's portion of FICA and FUTA
withholding and taxes, made payable to Mr. Bargeron as compensation for claims
for wage income, including back pay and front pay. A Form W-2 will be issued
to Mr. Bargeron for this payment;
(b) Twenty-Eight Thousand Eight Hundred Dollars ($28,800.00) to
Mr. Bargeron and Mrs. Bargeron and made payable to Mr. Bargeron for alleged
compensatory,non-wage damages. No withholdings will be made from this, and
a Form 1099 will be issued to Mr. Bargeron specifically checking box 3 and
designating this payment as "other income;" and
(c) A check in the amount of Eight Thousand Dollars ($8,000.00) for
attorney's fees and costs made payable to S. Wesley Woolf, P.C., Tax ID
#26-4711798. The City will issue an IRS Form 1099 to both S. Wesley Woolf,
P.C. and Mr. Bargeron for this payment.
B. Not Otherwise Entitled. The parties agree that, apart from this Release and any
vested retirement benefits to which the Bargeron Parties may be entitled now or in the future, the
Bargeron Parties are entitled to no payments or other consideration from the City or any other
Released Party. The payments described in Paragraph II.A are contingent upon the Bargeron
Parties' execution of this Release and their compliance with all of the terms of this Release.
Neither the City nor any of the other Released Parties make any representations or warranties as
to the Bargeron Parties' eligibility or entitlement to vested retirement benefits, including the
extent of vesting or the amount of retirement benefits.
C. No Further Obligation. Mr. Bargeron agrees that he has been paid all earned and
accrued compensation and benefits, less applicable deductions, through the last date of his
employment with the City, excepting only the Bargeron Parties' claim now or in the future to
vested retirement benefits.
D. Acknowledgments. The Bargeron Parties acknowledge that they have read and
understand this Release, and they specifically acknowledge the following:
(1) That Mr. Bargeron has been represented in this matter by an
attorney, and the Bargeron Parties have had the opportunity to consult with an
attorney, before signing this Release; and
(2) That, by signing this Release, the Bargeron Parties are not waiving
or releasing any claims based on actions or omissions that occur after the date of
signing of this Release.
E. Release. In exchange for the Settlement Payments described in Paragraph II.A.
above, the Releasing Parties fully and finally release and discharge the Released Parties from any
2
and all claims of any nature, known and unknown, which the Releasing Parties have or may have
arising out of or in connection with Mr. Bargeron's employment or separation from his
employment, through the Effective Date of this Release, excepting only the Bargeron Parties'
claim now or in the future to vested retirement benefits. Mr. Bargeron has appealed the United
States District Court for the Southern District of Georgia's dismissal of Mr. Bargeron's ADEA
claims against the City to the Eleventh Circuit Court of Appeals in the appeal styled George B.
Bargeron v. City of Tybee Island, Appeal No. 13-12446, and after notification to Mr. Bargeron
of approval of this Release by the City, Mr. Bargeron through counsel agrees promptly to notify
the Eleventh Circuit that the parties have resolved the appealed and disputed claims by
settlement, and the appeal is withdrawn or dismissed.
This Release includes, but is not limited to, any and all claims, charges, actions, causes of
action, demands, rights, damages, debts, contracts, claims for costs or attorney's fees, expenses,
compensation, punitive damages, and all losses, demands, and damages, including without
limitation those claims arising out of, under, or by reason of any and all claims which were or
could have been asserted in a Charge, a Complaint, or a related lawsuit, excepting only the
Bargeron Parties' claim now or in the future to vested retirement benefits. Without limiting the
generality of the foregoing, the Releasing Parties specifically release and discharge Released
Parties of any obligation, claim, demand or cause of action based on or arising out of any alleged
violation of any legal duty owed to any of the Releasing Parties by Released Parties under any
contract, or under any federal, state, or local statutes, ordinances or common laws, including but
not limited to O.C.G.A. § 45-1-4; Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et
seq., as amended by subsequent congressional legislation including, without limitation,the Civil
Rights Act of 1991; 42 U.S.C. ' 1983; the Americans with Disabilities Act, 42 U.S.C. ' 12101
et seq.; the Fair Labor Standards Act; the Equal Pay Act of 1963; the Family and Medical Leave
Act of 1993 (:FMLA"), 29 U.S.C. ' 2601et seq.; the Rehabilitation Act of 1973, as amended, 29
U.S.C. ' 701 et seq.; the Age Discrimination in Employment Act("ADEA"), 29 U.S.C. § 623, et
seq.; the Older Workers Benefit Protection Act("OWBPA"), 29 U.S.C. § 626(f); the
Consolidated Budget Reconciliation Act; the Occupational Safety and Health Act; any claims
under Georgia or other state laws, including but not limited to the Georgia Whistleblower Act;
the Georgia Open Records Act; the Georgia Open Meetings Act; the Georgia Equal Employment
for Persons with Disabilities Code; the Georgia Constitution; O.C.G.A. § 16-10-20; O.C.G.A
§16-10-50; or any claims for whistleblowing, wrongful discharge, discrimination, retaliation,
harassment, breach of contract, intentional or negligent infliction of emotional distress, loss of
services or consortium, defamation, invasion of privacy, interference with or breach of contract,
or any other cause of action based on federal, state or local law or the common law, whether in
tort or in contract, including claims raised or which could have been raised in the case George B.
Bargeron v. Diane Schleicher, Robert Bryson, and the City of Tybee Island, Georgia, United
States District Court for the Southern District of Georgia, Savannah Division, Civil Action No.
CV412-071 (the "Released Claims"), excepting only the Bargeron Parties' claim now or in the
future to vested retirement benefits.
The Bargeron Parties are advised to consult with an attorney prior to executing the
Release. The Bargeron Parties acknowledges that they are being given at least twenty-one (21)
3
days within which to consider the Release. For a period of seven(7) days following his
execution of this Release, the Bargeron Parties have the right to revoke the Release, and the
Release shall not become effective or enforceable until the revocation period has expired.
F. Covenant Not to Sue. The Bargeron Parties covenant and agrees that they will
forever refrain and forebear from directly or indirectly, on their own behalf, derivatively, or on
behalf of a class, commencing, instituting, or prosecuting any lawsuit, action, appeal, or other
proceeding against any or all of the Released Parties,based on, arising out of, related to or
connected with any of the Released Claims. If any of the Bargeron Parties breach this covenant
not to sue, the Bargeron Parties agree to pay all of the costs and attorney"s fees actually incurred
by Released Parties in defending against such claims, demands or causes of action, together with
such and further damages as may result, directly or indirectly, from that breach, except that this
sentence shall not apply to a challenge of the validity of the Release with respect to a claim under
the Age Discrimination in Employment Act ("ADEA"). This Release shall constitute a
complete and absolute defense to any such legal action brought in violation of this paragraph.
G. Re-Employment. Mr. Bargeron represents and warrants that he will not seek
employment or re-employment with any of the Released Parties, and Mrs. Bargeron represents
and warrants that she will not seek employment with any of the Released Parties.
Notwithstanding this paragraph, nothing shall prevent Mr. Bargeron from qualifying for and
holding public office and accepting the compensation provided by ordinance or otherwise.
H. Non-Admission of Liability. This Release is made in settlement of contested
and disputed claims and does not constitute an admission of liability on the part of the Released
Parties as to any matter whatsoever. The Released Parties specifically deny any wrongful
conduct of any kind toward any of the Releasing Parties.
I. Taxation. In the event any of the Released Parties are required to pay taxes or
Social Security, or fines or assessments, because of Mr. Bargeron's non-payment of taxes on any
amounts paid under this Release, Mr. Bargeron agrees to indemnify and hold harmless the
Released Parties for any such amounts.
J. Confidentiality and Third-Party Communications. The Releasing Parties agree
to keep the terms and provisions of this Release and the Released Claims confidential and they
will not disclose the terms and provisions to anyone other than financial advisers, taxing
authorities, or as appropriate within a legal proceeding. If asked, the Releasing Parties may say
that the matter has resolved. The Releasing Parties realize that the City is subject to Georgia
Open Records Act requests and the Georgia Open Meetings Law.
K. Entire Agreement. This Release contains the entire agreement of the parties as
to the matters contained herein and may not be changed without the written consent of the
Released Parties. No oral evidence shall be admissible to alter or vary the terms and provisions
hereof.
4
L. Assignment. The Releasing Parties hereby represent and warrant that they have
not heretofore assigned, transferred, or hypothecated or purported to assign, transfer or
hypothecate to any person or entity any claim or matter herein released, disclaimed, discharged,
or terminated. In the event of such assignment, transfer, or hypothecation of any claims or
other matter herein released, discharged, terminated, or disclaimed, the Releasing Parties agree to
indemnify and to hold harmless the Released Parties from and against any liability or loss, and
for any cost, expense or judgment or settlement arising out of a revocation by, or arising in
connection with any such assignment, transfer or hypothecation. The provisions of this Release
shall inure to the benefit of and be binding on any successor in interest of the Released Parties.
M. Waiver. The waiver by any of the Released Parties of a breach of any provision
of this Release shall not operate or be construed as a waiver of any subsequent or simultaneous
breach.
N. Governing Law. This Release shall be governed by the Laws of the State of
Georgia and shall be construed in accordance therewith.
O. Severability. In the event any provision of this Release should be held to be
unenforceable, each and all of the other provisions of this Release shall remain in full force and
effect.
IN WITNESS WHEREOF, Mr. Bargeron and Mrs. Bargeron set their hands and seals
this day of , 2013.
Sworn to and subscribed before me
this day of , 2013.
(L.S.)
NOTARY PUBLIC GEORGE B. BARGERON
My commission expires:
Sworn to and subscribed before me
this day of , 2013.
(L.S.)
NOTARY PUBLIC JUDITH BARGERON
My commission expires:
Witnessed:
S. Wesley Woolf, Esq.
Attorney for George Bargeron and Judith Bargeron
5