21-1301ORDINANCE NO. 21-1301
AN ORDINANCE APPROVING A SETTLEMENT AGREEMENT AND RELEASE
IMPLEMENTING THE TERMS OF THE SETTLEMENT IN LITIGATION STYLED “ TYSON
GUDq K CITY OF DENTON, TEXAS, “ CAUSE NO. DC-21-04452, PENDING IN THE 191ST
JUDICIAL DISTRICT COURT, DALLAS COUNTY, TEXAS; DIRECTING THE CITY
MANAGER OR DESIGNEE AND THE CITY’S ATTORNEYS TO EFFECTUATE AS
NECESSARY AND APPROPRIATE THE TERMS OF A SETTLEMENT AGREEMENT AND
RELEASE; AND DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council hereby approves the proposed settlement of litigation
styled “Tyson GuM v. City of Denton, Texas , “ Cause No. DC-21-04452, pending in the 191st
Judicial District Court, Dallas County, Texas, under terms set forth in the attached Settlement
Agreement and Release.
SECTION 2. The City Manager or designee and the City’s Attorneys are hereby authorized
to act on the City’s behalf in approving and executing any and all documents necessary or
appropriate to effectuate the terms of the settlement, and to take other actions necessary to finalize
the settlement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
The motion to aw rove this ordinance was made by eLO \ rue_\ tIer and
seconded by q:cL: +>Ll cA . This Ordinance was passed and approved
by the following vote LL - a :
Aye Nay Abstain Absent
Mayor Gerard Hudspeth,./
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a/
Vicki Byrd, District 1 :
Brian Beck. District 2 :
Jesse Davis. District 3 :,/
a/Alison Maguire, District 4:
Deb Armintor, At Large Place 5 :£
aPaul Meltzer, At Large Place 6:
PASSED AND APPROVED this the2£'day of June 2021.
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ATTEST:
ROSA RIOS, CITY SECRETARY
a
APPROVED AS TO LEGAL FORM:
CATHERINE CLIFTON, INTERIM CITY ATTORNEY
BY:
EXHIBIT “ A”
Settlement Agreement and Release
SETrLEMENT AGREEMENT
AND
GENERAL RELEASE OF ALL CLAIMS
This Settlement and General Release of All ClaIms ("Agreement") is between TYSON
GUIN himself, his executor or his assigns (collectively hereinafter referred to as
“Employee’), and the CITY OF DENTON, its elected and appointed officials, employees,
agents, affiliates, and subsidiaries (collectively hereinafter referred to as the “City”), and
constitutes the full and complete terms of their agreement, and supersedes any and all
other oral or written agreements which the parties may have made concerning this same
subject matter.
WHEREAS, Employee has been employed by the City; and
WHEREAS, Employee has asserted claims against the City based upon and
arising out of his employment with the City, which claims he brought against the City in a
lawsuit filed on April 8, 2021 in the District Court of Dallas County with the case number
of DC-21-04452. '
WHEREAS, the parties desire to settle all claims and resolve all matters arising
out of Employee’s employrnent related claims against the City which have been or could
have been claimed.
NOW, THEREFORE, in consideration of the mutual covenants made by Employee
and the City and for other good and valuable consideration, the receipt and sufficiency of
which are hereby expressly acknowledged by the parties, it is agreed that:
1.Subject to the terms of this Agreement and as good and valuable consideration for
Employee’s promises (“Consideration”), the City agrees to pay Employee the
amount of FORTY THOUSAND DOLLARS AND NO CENTS ($40,000.00) for
settlement of all claims against the City. Said payment will be divided as follows:
a.
b.
The sum of $26,447 and No Cents made payable directly to Employee,
subject to the usual and customary withholdings; and
The sum of $13,553 and No Cents ($), as attorney fees to Employee’s
attorney and made payable to Employee’s attorney, Kilgore and
Kilgore, PLLC, c/o Eric Roberson.
2.The City will provide the Employee with an IRS Form 1099 for all payments made
pursuant to this settlement, which must be reported to the Internal Revenue
Service.
3 The City does not guarantee the tax treatment of any payments or benefits under
this Agreement, including without limitation under the Internal Revenue Code, or
Federal, state, local, or foreign tax law and regulations.
4.Employee will request a voluntary dismissal or nonsuit, with prejudice, his lawsuit
against the City, Tyson Guin v. City of Denton, DC-21-04452 (191st Judicial
District, Dallas County), within seven (7) business days following receipt of
payment.
5.Employee understands that this Agreement does not constitute an admission by
the City of any wrongdoing of any kind, violation of law, or liability, including breach
of contract or tort liability. The City specifically denies any violation of any act,
statute or law whatsoever. The City denies and disclaims any liability to Employee
or any other person whatsoever.
6.Employee hereby waives any right or claim to reinstatement as an employee of the
City and agrees that he will not knowingly seek or accept employment in the future
with the City or with any of its affiliated committees, boards, or successors or
assigns, if through mistake or otherwise, Employee applies for employment with
any of the aforementioned entities, then he shall withdraw his application
immediately upon notice without any recourse, legal, or otherwise, and to the
extent that claimant has already been hired, he will resign immediately upon notice
without any recourse, legal, or otherwise.
7.
8.
Each party will bear its respective costs and fees, in connection with this matter,
including attorneys’ fees incurred.
Employee warrants that no individual has a claim to attorney’s fees against the
City. Employee agrees that he is responsible for any attorney’s fees accrued in
the negotiation and settlement of this matter outside of what has been agreed to
in paragraph 1 (b) of this Agreement.
9.In exchange for such good and valuable Consideration, as described in
paragraph 1 above, Employee hereby intentionally, knowingly, and
voluntarily, releases, acquits, and forever discharges the City of and from
any and all losses, liabilities, claims, suits, demands, damages of any sort,
including but not limited to compensatory, liquidated and punitive damages,
wages, salary, bonuses, benefits, vacation pay, sick pay, holiday pay,
commissions, back pay, front pay, injuries, costs, and expenses growing out
of, resulting from or connected in any way to Employee’s employment and
the termination of such employment with the City, and with regard to any
matter or thing whatsoever, whether known or unknown, foreseen or
unforeseen, including but not limited to any claims, complaints, charges,
demands, damages, suits, and causes of actions of any kind (hereafter
referred to as the “Release”).
10 The Release expressly covers, but is not limited to, any and all claims, in law
or in equity, including the numerous laws and regulations governing
employment (as those laws may be amended), Title VII of the Civil Rights Act
of 1964; the LIlly Ledbetter Fair Pay Act; the GenetIc Information
DiscrImination Act of 2008; Section 1981 through 1988 of TItle 42 of the
UnIted States Code; the Age DiscrimInation in Employment Act (including
the Older Workers’ Benefit ProtectIon Act); False Claims Act; the
Employment Retirement Security Act, the Americans with Disabilities Act
and its amendments, including the Americans with Disabilities Act
Amendments Act; the Family and Medical Leave Act; the Equal Pay Act; the
Fair Labor Standards Act; the Immigration Reform and Control Act; the
Texas Payday Law, the Texas Labor Code, The Texas Whistleblower Act; all
laws which govern harassment or discriminatIon including race, color, sex,
gender, age, religIon, physIcal or mental disabiIIty, genetic information,
national origin, ancestry, and citizenship; all federal, state and local human
rights and employment laws; all federal, state and local wage and hour laws;
as well as all other statutes, and the laws of contract (express and implied),
tort, fraud, public policy, and all other laws and causes of action. Employee
intentionally waives and releases any rights Employee has under these laws
and other laws. This release does not apply to any rights or claims that as a
matter of law cannot be released, including but not IImIted to, claims for
unemployment insurance benefits and workers’ compensation claims.
11.In addition to the provisions contained herein, and by execution of this Agreement,
Employee expressly waives any and all rights to claims arising under the
Age Discrimination in Employment Act of 1967, as amended including the
Older Workers’ Benefit Protection Act. and:
a.Employee acknowledges that his waiver of rights or claims arising under
the Age Discrimination in Employment Act of 1967 (the “ADEA”) is in
writing, written in a manner calculated to be understood, and is
understd>d by him;
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Employee expressly understands that this waiver refers to rights or
claims arising under the Age Discrimination in Employment Act of 1 967 ;
Employee acknowledges that the waiver of his rights on claims arising
under the Age Discrimination in Employment Act of 1967 is in exchange
for the consideration outlined above, which is above and beyond that to
which she is otherwise entitled to receive from the City;
Employee acknowledges that he is represented by independent legal
counsel and has been adequately advised prior to his execution of this
Agreement;
Employee has been advised by the City that he is being given 21 days
within which to cons}der this Agreement and may revoke this
Agreement for a period of 7 days after execution Employee has
C.
d.
e.
executed this Agreement. The ADEA Waiver shall not become
effective or enforceable until this period has expired; and
During the seven (7) calendar days immediately following Employee’s
execution of this Agreement (the “Revocation Period”), Employee may
revoke this Agreement. Provided Employee revokes this Agreement, the
revocation becomes immediately effective upon the City's receipt of the
Employee’s written revocation. To revoke this Agreement, Employee
must submit her revocation in writing to:
f.
City of Denton
City Attorney’s Office
Attention: Caleb Garcia, Deputy City Attorney
215 E. McKinney St.
Denton, TX 76201
In order for this Agreement to become effective and enforceable, the
Revocation Period must expire, and Employee must not have revoked this
Agreement. This Agreement will not become effective or enforceable (and
City’s lump-sum payment will not be made) until this seven (7) day
revocation period has passed, the Employee’s Separation Date has passed,
and Employee has timely signed and returned the Acknowledgment attached
hereto as Exhibit A.
12.Employee also waives any right Employee may have under the City Charter,
the Meet and Confer Agreement, or under any applicable laws (Texas Local
Government Code/Civil Service Rules) that would give Employee a right to a
written statement or notice of reasons for removal, appeal, and a hearing.
13.This Agreement will be part of the public record pursuant to the Texas Open
Meetings and Public Information Acts, and confidentiality of its terms will not be
possible. However, Guin and City agree to keep the circumstances under which
this Agreement came about confidential, as allowed by law
14.In the event a breach of this Agreement is proven, the non-breaching party may
recover, in addition to damages, the reasonable costs and fees, including
attorney's fees, incurred in establishing the breach and securing judicial relief.
15 Employee agrees that he will not make any disparaging remarks or statements to
any third-party regarding City and/or any of the other Releasees regarding his
employment or separation from employment in any manner. Employee also
agrees that he will instruct his representatives and/or agents to abide by the
provisions of this paragraph. Nothing in this agreement shall preclude Employee
from making truthful statements that are required by applicable law, regulation or
legal process. All inquiries regarding Employee, including reference checks for
prospective employers, shall be directed by Employee to City’s Director of Human
Resources. The City agrees that its officials and officers shall not make any
disparaging remarks or statements to any third-party regarding Employee’s
employment or separation from employment. For the purposes of this Agreement,
“officials and officers” means the City Manager, Assistant City Managers,
Department Directors, City Attorney, and Assistant City Attorneys. The only
information the City will share with prospective employers is Employee’s dates of
employment with the City, his rate of pay, and that Employee is eligible for rehire,
except that the City may provide information that is the subject of a request under
the Texas Public Information Act, subpoena, court order, or pursuant to an
authorization signed by Employee from a prospective employer authorizing the
City to release additional information regarding his employment with the City.
16.Employee acknowledges that he is represented by independent legal counsel, Eric
Roberson with Kilgore Law located at 3109 Carlisle Street, Dallas, Texas 75204
and has had a reasonable opportunity to consult with his attorney prior to signing
this Agreement.
17.This Agreement shall be deemed and construed to have been jointly prepared by
each of the parties. Uncertainties or ambiguities, if any, existing in this Agreement
shall not be interpreted against the other party.
18.The City has no obligation to Employee whatsoever other than what has been set
forth in this Agreement. No other promises have been made to Employee other
than as set forth in this Agreement.
19.
20.
This Agreement may not be modified, altered, or changed except in writing and
signed by both parties wherein specific reference is made to this Agreement.
This Agreement is binding upon Employee and Employee’s successors, assigns,
heirs, executors, administrators, and legal representatives. The Release within this
Agreement covers the City, its elected and appointed officials, employees, former
employees, agents, affiliates, subsidiaries, and its respective predecessors,
successors, and assigns (“Releasees”).
21.This Agreement is a full and final compromise of any and all claims against the
City by Employee, whatsoever, arising out of events occurring up to and including
the date of execution of this Agreement.
22 If any provision, or any portion, thereof, contained in this Agreement is held invalid
or unenforceable, the remainder of this Agreement, or portion thereof, shall not be
affected and shall remain in force and effect.
23.It is understood, agreed and stipulated between the Parties hereto that the
consideration described herein is in complete and full accord, satisfaction and
discharge of any and all doubtful or disputed claims, whatsoever from the
beginning of his employment with the City to the date of this agreement.
24.The Employee stipulates and agrees not to continue in and/or institute any legal
proceedings or process based on the within described claims or causes of action
before any administrative, judicial, or any other forum against the City, whatsoever.
25.City does not, by virtue of this Agreement, admit liability to anyone or any entity as
a result of any incident, act or omission described in or cognizable by the
aforementioned claims or causes of action. This Agreement is entered into for the
sole purpose of settlement and compromise. It is stipulated and agreed this
Agreement and the negotiations of the parties resulting in this Agreement shall not
constitute admissible evidence of any matter for any purpose whatsoever, other
than for the sole purpose of a claim of a breach of this Agreement.
26.This Agreement shall be governed by the laws of the State of Texas. Venue for
any action arising out of this agreement shall be in a court of competent jurisdiction
sitting in Denton County, Texas.
EXECUTED this day of 2021
Agreed to and Accepted by:
NOTICE TO EMPLOYEE. Employee should thoroughly review and understand this
Agreement before signing it. THIS AGREEMENT INCLUDES A RELEASE AND
WAIVER OF LEGAL RIGHTS AND CLAIMS. By sIgnIng this Settlement Agreement
and General Release of All Claims below, 1, Tyson GuM, understand all the terms
of this Agreement. I enter into and sign this Agreement knowingly and voluntarily,
with full knowledge of what it means.
b / t g/ 2 t
Date
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Date
Attorney for Employee
Representative of the City of Denton :
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Approved as to Legal Form:
Catherine Clifton, Interim City Attorney
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