parties to this Agreement are the City of Portland (City), Portland
Fire Fighters Association (Union) and Paul “Jim” Bieker
term “Employee” means his spouse or domestic partner, if any,
heirs, executors, representatives, attorneys and assigns.
term “City” means the City of Portland, the Mayor, City Council,
their predecessors, successors, assigns, bureaus, divisions,
commissions, boards, affiliates and related corporations,
independent contractors of the City, and all of the past, present
and future employees, representatives, insurers, and agents of such
entities (all and each in their individual and representative
Agreement shall not become effective or enforceable until seven (7)
days after Employee signs it. Employee may revoke this Agreement
prior to the effective date. After the 7 day revocation period
Employee may not revoke this Agreement
June 24, 2004, Union filed a grievance on behalf of employee
alleging that the City violated Articles 10, 11, 13 and 15 of the
collective bargaining agreement between the City and the Union.
The City denied the allegations. The Union did not pursue the
grievance to arbitration.
September 22, 2005, the Union asserted a “class” grievance
alleging that the City violated Article 18K of the collective
bargaining agreement. The Union alleged that Employee was part of
the affected class. The City denied the grievance and the matter
proceeded to arbitration before Arbitrator Katrina Boedecker.
to Resolve Dispute.
parties desire to bring all pending and potential claims and
disputes that Employee has or might have with the City to a final
resolution by way of compromise and settlement, and they consider it
appropriate to settle and compromise any and all claims arising
prior to the effective date of this Agreement that Employee has made
or could make in the future concerning or related to employment with
and other Consideration
the effective date of this Agreement, the City shall deliver to
Employee through his attorney, Ralph Wiser, a check payable to Paul
“Jim” Bieker in the amount of $15,000.00.
amount of $15,000.00 is to reimburse Employee in part for the cost
of health care premiums he paid for out-of-pocket. Employee agrees,
however, that if any state or federal taxing authority should ever
determine that the money received by him under this Agreement
constitutes taxable wages, in whole or in part, Employee will, upon
written demand, indemnify the City for any and all tax liabilities,
including but not limited to all contributions, penalties and
interest, if any, required to be paid by the City on behalf of
Employee for Employee social security tax contributions and income
City and the Union agree to split equally the arbitrator’s fees.
agrees to withdraw the Article 18K grievance with prejudice.
Admission of Liability
payment and other commitments by the City provided by this
Settlement Agreement and Release of All Claims and the City's
execution of this Settlement Agreement and Release of All Claims is
to compromise doubtful and disputed claims and shall not operate or
be interpreted as an admission of liability as to any claim, past,
present or future, known or unknown, suspected or unsuspected, that
Employee or Union had or might have asserted against the City,
arising out of conduct that occurred prior to the date of this
Settlement Agreement and Release of All Claims, by whom liability is
consideration of the promises made in this document, Employee, by
signing this Agreement, accepts this settlement as a complete and
final resolution and settlement of any and all liabilities and
claims, direct or indirect, under any state or federal authority,
and voluntarily releases and forever discharges the City of and from
all claims arising from or in any way related to Employee’semployment
as a City of Portland employee except for wages and benefits through
the date of employee’s retirement and except for any and all
retirement compensation and benefits. This release and discharge
is not limited to,
any and all claims Employee has or might have asserted as grievances
under a collective bargaining agreement or as claims in other
actions, suits or proceedings that have or could have been brought
under any labor agreement, the Charter and Code of the City of
Portland, Oregon, any local, state or federal statutes and
regulations, or common law, including, but not limited to the City
of Portland Civil Service Rules, Personnel Rules, the Oregon
Employer Liability Law pursuant to Chapter 654 of the Oregon Revised
Statutes, Oregon Fair Employment Practices Act (ORS Chapter 659),
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Federal Rehabilitation Act of 1973, all federal and state
wage and hour statutes and the Federal Fair Labor Standards Act, the
Americans with Disabilities Act, the Family Medical Leave Act, the
Age Discrimination in Employment Act, the Uniformed Services
Employment and Reemployment Rights Act of 1994 (38 USC Sections
4301-4333), 42 USC Sections 1981-1988, the Equal Pay Act of 1963,
the Oregon Constitution and the Constitution of the United States,
and all claims for attorney fees and costs.
specifically waives any and all claims alleging discrimination in
employment on the basis of age under state law, ORS 659.030, as well
as claims under the federal Age Discrimination in Employment Act of
purposes of the Age Discrimination in Employment Act of 1967,
Employee acknowledges that he has had twenty-one (21) days to
consider the release of all claims under the federal ADEA.
understands that he has seven (7) days following the date he signs
this agreement to revoke his waiver of claims under the federal Age
Discrimination in Employment Act of 1967 and that this portion of
this agreement waiving claims of age discrimination will not become
effective until the revocation period has expired.
signing this document, Employee knowingly and voluntarily waives any
and all claims under the ADEA as of the date that the settlement
agreement is last signed by the parties and the 7-day revocation
period has expired. Employee, nor anyone on behalf may sue the
City of Portland, any of its bureaus, board, commissions, employees
or insurers and their successors for any claim of discrimination
based on age arising out of employment prior to the date of this
in this Settlement Agreement and Release of All Claims shall affect
or apply to, waive or release any claim or benefit related to
Employee's participation, if any, in the Public Employees Retirement
System, 457 deferred compensation program, rights granted by the
Consolidated Omnibus Budget Reconciliation Act (COBRA), or any other
retirement or pension plan or benefits under said plans.
Not to Sue
exchange for the Settlement considerations, payment, undertakings
and covenants by the City described in this Agreement,
Employee covenants not to prosecute or hereafter maintain or
institute any action at law, suit or proceeding in equity,
administrative or any proceeding of any kind or nature whatsoever
against City for any reason related in any way to the dispute or to
any other claim released herein. Employee further covenants and
agrees that he will not raise any claim against City by way of
defense, counterclaim or cross-claim or in any other manner, on any
alleged claim, demand, liability or cause of action released herein.
At the time of his execution of this Settlement Agreement and
Release of All Claims, Employee represents that there are no other
claims, complaints or charges pending against City in which he is a
party or complainant.
understands and expressly agrees that if he ever asserts any claim,
action or suit against the City or against any of the City's
commissioners, officers, bureaus, employees, agents and insurers and
their successors, individually and collectively, arising out of or
in connection with employee's employment with the City provided by
this Agreement, the City may plead this Agreement as an absolute
defense to any such claim, action or suit. Furthermore, in the
event any claim, action, or suit is asserted, this settlement shall
be construed to allow the City to use in its defense any and all
matters, evidence, testimony, documentation, and records that exist
or existed prior to the execution of this settlement.
of Understanding as to Disclosure of Terms
Parties further understand, stipulate and agree that since the City
is a public body under Oregon law, this document and the terms
thereof are disclosable and discoverable under the Public Records
Law of the State of Oregon pursuant to Chapter 192 of the Oregon
Revised Statutes, and that no promise, guarantee or provision can be
made with respect to the confidentiality, publicity, or reporting of
the terms of this Agreement.
as to Acceptance.
acknowledges that he accepted this settlement offer on July ___,
as to Known and Unknown Losses
Settlement Agreement and Release of All Claims is intended to, and
does, cover not only all known losses and damages, and all claims
asserted or that could have been claimed or asserted, but any
further losses and damages resulting from Employee’s employment
which are not now known or anticipated which may later develop or be
discovered, including all effects and consequences thereof. This
includes but is not limited to any tort or breach of contract,
breach of express or implied employment agreement, wrongful
discharge, constructive discharge, intentional infliction of
emotional distress, discrimination, defamation, loss of consortium
or tortious interference with contractual relations. This also
includes any damage that may result from disclosure of information
made as a result of any order issued pursuant to the State of Oregon
Public Records Law (Chapter 192 of the Oregon Revised Statutes).
acknowledges that he is aware that he or his attorney may discover
facts different from or in addition to the facts that they now know
or believe to be true with respect to his employment or any of the
claims has asserted or could assert or any other claim that is in
any way related to Employee's employment with City or the voluntary
termination of that employment, or with respect to the subject
matter of the Dispute, but that it is intention to and hereby does
fully, finally absolutely and forever settle any and all claims,
disputes and differences with City as described herein.
Parties acknowledge and agree that they have been represented and
advised by legal counsel of their own choice throughout all
negotiations and mediation sessions, if any, that preceded the
execution of this Settlement Agreement and Release of All Claims,
and with respect to the execution of this Settlement Agreement and
Release of All Claims. The parties acknowledge and agree that the
City advised Employee to take this Agreement and Release to an
attorney of his own choosing for review and explanation.
as to Severability of Terms.
as provided in this paragraph, every provision contained in this
Settlement Agreement and Release of All Claims is intended to be
severable. In the event a court or agency of competent jurisdiction
determines any term or provision contained in this Settlement
Agreement and Release of All Claims to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall
not affect the other terms and provisions in this Settlement
Agreement and Release of All Claims and the remainder of the
Settlement Agreement and Release of All Claims shall continue in
full force and effect, except as provided below.
as to Time for Consideration of Offer and Agreement.
Employee acknowledges that he
has had a reasonable period of time in which to consider, negotiate
and sign this Settlement Agreement and Release of All claims.
Agreement is entered into because of unique extenuating
circumstances present in this case and shall not be precedent
setting in any way.
Settlement Agreement and Release of All Claims contains the entire
agreement of the City and Employee and supersedes all prior or
contemporaneous oral or written understandings, statements,
representations or promises, and is intended fully to integrate the
agreement between Employee and City with respect to settlement of
the matters described herein.
Parties agree that they are not and shall not be liable for any of
the other party’s attorneys’ fees or costs incurred in
connection with the resolution of the dispute or preparation or
execution of this Settlement Agreement and Release of All Claims.
The Parties agree and expressly represent that any and all claims
for attorney fees arising out of their respective claims are
expressly discharged by this Agreement.
settlement document shall be construed in accordance with and
governed by the statutes of common law of the State of Oregon
(without regard to choice of law rules). Any disputes now or
hereafter arising in connection with the execution or operation of
these documents, regardless of whether such disputes arise in
contract, tort or otherwise, shall be governed and determined by the
applicable laws of the State of Oregon.
PAUL “JIM” BIEKER, FURTHER AGREE AND CERTIFY THAT [initial
I HAVE CAREFULLY READ THIS ENTIRE DOCUMENT
I HAD AT LEAST 21 DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT
BEFORE SIGNING IT
I HAD AN ADEQUATE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF MY
CHOICE PRIOR TO SIGNING THIS AGREEMENT
THE CITY HAS PROVIDED NO INFORMATION CONCERNING POSSIBLE TAX
CONSEQUENCES OF THIS AGREEMENT AND RELEASE OF PAYMENTS THEREUNDER
I INTELLIGENTLY, KNOWINGLY AND VOLUNTARILY AGREE TO THE TERMS OF
THIS AGREEMENT AND RELEASE
I AM SIGNING THIS AGREEMENT AND RELEASE VOLUNTARILY AND WITH THE
FULL INTENT OF RELEASING THE CITY FROM ALL CLAIMS RELATING TO, OR
ARISING OUT OF, MY EMPLOYMENT WITH THE CITY OF PORTLAND.
I UNDERSTAND THAT IF I EVER ASSERT ANY CLAIM AGAINST THE CITY
ARISING OUT OF MY EMPLOYMENT WITH THE CITY THAT EXISTED OR OCCURRED
BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT, THIS AGREEMENT MAY BE
PLEADED AS AN ABSOLUTE DEFENSE TO THE CLAIM.
I UNDERSTAND THIS AGREEMENT COVERS NOT ONLY KNOWN LOSSES AND
DAMAGES, BUT ANY FURTHER LOSSES, DAMAGES AND CONSEQUENCES RESULTING
FROM MY CITY EMPLOYMENT EVEN IF THEY ARE NOT NOW KNOWN, ANTICIPATED,
DEVELOPED OR DISCOVERED.
ONE HAS MADE ANY PROMISE OR REPRESENTATION TO INDUCE ME TO SIGN THIS
AGREEMENT THAT IS NOT CONTAINED IN THIS AGREEMENT.
HAVE NOT RELIED ON ANY PROMISE OR REPRESENTATION THAT IS NOT
CONTAINED IN THIS AGREEMENT IN DECIDING TO SIGN THIS AGREEMENT.
WITNESS WHEREOF, the parties have signed this Agreement as of the
day and year written below.
“Jim” Bieker, Employee
OF OREGON )
of Multnomah )
instrument was acknowledged before me this
day of ,
2008, by Paul “Jim” Bieker.
PUBLIC FOR OREGON
Attorneys for PFFA
Fire Fighters Association
L. Deckard, Director
of Human Resources
AS TO FORM:
– SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS