STATEMENT OF THE DENVER CITY OFIFICE Assistant City Attorney Stuart Shapiro returned to the Denver City Attorney's Office this year, after having been placed on paid leave in July of 2014. On behalf of the City Attorney's Office, we apologize to Mr.'Shapiro and his family for the manner in which the City Attorney?s office publicly announced Mr. Shapiro?s placement on ?investigatory leave" in conjunction with the announcement of the settlement of the Hunter case. We further regret the length of time Mr. Shapirowas required to remain on leave before he was'allowed to resume work in the City Attorney?s Office. We acknowledge that the manner in which the leave was announced and the extended period of time in which the leave continued unfairly placed Mr. Shapiro?s professional reputation under a cloud for over a year and a half. Since returning to work, he has faithfully performed his duties as assigned. During the period in which Mr. Shapiro was required to remain on leave, the City Attorney?s Office determined that he did not engage in any conduct in'regard to the Hunter litigation that warranted imposing discipline pursuant to Career Service Rules. Let. this statement stand as a full and complete exoneration of Mr. Shapiro. - Since Mr. Shapiro .joined the City Attorney?s Office in 2007, he has met and exceeded the performance expectations set by the City Attorney?s Office for attorneys. handling significant litigation matters on behalf of the City in state and federal courts. He also earned an excellent reputation among his peers, supervisors, clients and the judiciary. We want to acknowledge the contributions he made to our office and the City and County of Denver. SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into between the.Departrnent of Law, Office of Denver City- Attorney ("CAS"), City and County of Denver (collectively "the City"), and Stuart Shapiro("Mr. Shapiro")(collectively "Parties"). General Recitals WHEREAS, Mr. Shapiro is currently employed by the City as a Senior Assistant City Attorney; WIIER.~AS, on or about January 16, 2015, Mr. Shapiro filed a Notice of Claim pursuant to the Colorado Governmental Immunity Act("Notice of Claim"); WHEREAS, on or about March 11, 2016, Mr. Shapiro filed a Whistleblower Notice of Appeal pursuant to Ruie 19 of the Denver Career Service Rules alleging violations of the Whistleblower Ordinance, Section 2-I06, et seq. ofthe Denver Municipal Code ("Whistleblower Notice of Appeal"); WHEREAS, on or about July 14, 2016, Mr. Shapiro delivered a draft Federal Court Complaint to the City which contained claims against the City and certain of its employees; W~IEREAS,the City denies that it violated the Whistleblower Ordinance, has opposed the Whistleblower Notice ofAppeal,and denies the validity ofthe claims made in the Notice ofClaim and Federal Court Complaint; and WHEREAS,the Parties agree that it is in their best interests to resolve all disputes between them that arose prior to the Effective Date; NOW, THEREFORE, in consideration of the mutual advantAges herein contained, and further, in consideration of the mutual promises and covenants hereinafter more specifically set forth, the Parties hereto do STIPULATE AND AGREE as follows: Terms of the Agreement Effective Date. This Agreement is conditional on final approval by the Denver 1. City Council ("City Council"). Assuming City Council approves the Agreement on August 22, 2016 and Mr. Shapiro does not revoke the Agreement as stated in paragraph 7, the effective date ofthe Agreement shall be September 1, 2016:("Effective Datc") ~thertavise the effective date of the Agreement shall be the eighth day following City Council approval. 2. Monetary Consideration. The City will pay Mr.Shapiro,through his attorney, the total sum of Six Hundred and Sixty Thousand Dollars and No Cents ($660,000)("Settlement Payment"). The Settlement Payment shall be paid as follows: Page 1 of7 Agreement {i) A severance/wagc payment from the CAO's personnel budget in the gross amount of Three Hundred Thousand Dollars and No Cents ($300,000), less all applicable and lawful deductions pursuant to state and federal law, by check made payable to "Stuart Shapiro" and representing payment for alleged economic damages,including but not limited to any back and front pay damages. A Form W2 will be issued for this payment and it will be made within fourteen (l4) days of the Effective Date. {ii) Anon-wage payment from the City's liability claims fund in the amount of Three Hundred and Sixty Thousand Dollars and No Cents($360,000), by check or checks made payable to "Stuart Shapiro." Two Hundred and Sixty Thousand Dollars ($260,000) of this payment constitutes a settlement of ail claims by Mr. Shapiro for alleged non-economic damages and One Hundred Thousand Dollars ($100,000) of this sum constitutes a settlement of all claims by Mr. Shapiro for attorney fees and other legal costs. A Form 1099 will be issued to Mr. Shapiro for this payment and it will be made within thirty(30)days ofthe Effective Date. The checks comprising the Settlement Payment shall be delivered by the dates described above to Brian T. Moore, Jester, Gibson &Moore, LLP, 1999 Broadway, Suite 3225, Denver, Colorado 80202. Mr.Shapiro is solely responsible for the payment ofhis attorneys' fees and costs from such checks. Further, the Settlement Payment is being made at the City's discretion and is neither part of nor intended to create a severance pay plan in any manner. All amounts due to Mr. Shapiro under this Agreement will be made in 2016. Mr. Shapiro also has the sole responsibility of satisfying any Lien or claim asserted against the Settlement .Payment or arising from the Settlement ~. Payment, including any potential future lien by Medicare and/or Medicaid (CMS/DSS/HRA). Mr. Shapiro also hereby acknowledges that he is not over the age of65 and is not currently eligible for or drawing Medicare benefits.~ He also acknowledges that he has not received any, Social Security Disability Insurance benefits and has not applied for any Medicare benefits. Non-monet~ry Consideration. Assuming the Agreement is approved by City 3.. Council on August 22, 20.16, the Parties agree to release the Agreement and the attached Exhibit "A"("Settlement Documents")to the media on the following day, August 23, 2016. In the event the Agreement ~is not approved on August 22, 2016, the Parties agree the Settlement Documents will be released to the media on the next day following the date on which the Agreement is approved by City Council. The City warrants that the Mayor, City Attorney and the following CAO employees shall not make any statement that contradicts Exhibit A:Cristal DeHerrera,~ Chad Sublet, Shaun Sullivan, David Broadwell and Robert Nespor. Mr. Shapiro acknowledges the CAO,Mayor,City Attorney, and individuals- named in this paragraph are not required to make any additional statements regarding Mr. Shapiro or his employment, except as stated in this Agreement. Mr. Shauiro's Retirement From Current Position. Mr. Shapiro agrees that as 4. consideration for the Settlement Payment and the other consideration described in this Agreement, he will retire from his current position as a Senior Assistant City Attorney, on the Effective Date Page 2 of7 Agreement (assumed to be September 1, 2016). Ifthe Agreement is not approved by City Council on August 22,2016, Mr. Shapiro's effective refiirernent date shall be the eighth day following City Council's approval of the Agreement. The Parties .will cooperate to complete the retirement process; however, they understand and agree that Mr. Shapiro's agreement to retire and the effective date thereof is governed solely by this Agreement and is in no way conditioned on his eligibility for retirement pursuant to-City ordinances or the status ofhis application for retirement benefits as of the effective date of his retirement. 'NoPre-Existing Oblisation. The Parties' receipt ofthe mutual benefits,promises, 5. and other consideration described in this Agreement is not required by any prior statements or conduct of the Parties but is solely based on their acceptance of the terms and conditions of this Agreement. Mutual Release and Waiver. Except as otherwise provided in this Agreement, 6. the Parties forever settle, release, compromise, reach accord and satisfaction, waive, remise, discharge and acquit the other Parties and each and every of their predecessors,. successors, owners, parents, subsidiaries, ~liates, assigns, directors, officers, shareholders, employees or agents, both current and former (collectively, the "Released.Parties") on each and every claim, which exists as ofthe Effective Date of this Agreement, whether known or unknown, arising out of or relating to any actions taken by the Parties in connection with Mr. Shapiro's employment, and including,.without limitation, claims for the following: AIleged violations of the following Laws: The Age Discrimination in (a) Employment Act of 1967,29 U.S.C.621 et seq., as amended,including as amended by The Older Workers Benefit Protection Act, Pub. Law 101-433, 104 Stat. 978 (1990); Title VII of the Civil Rights Act. of 1964, 42 U.S.C. § 2000e as amended; the Americans with Disabilities Act, as amended; the Civil Rights Acts of 1866, 1871, and 1991; the Family and Medical Leave Act, as amended, with respect to claims based upon past conduct; the Equal Pay Act of 1963; the Employee Retirement and Income Security Act; the Occupational Safety and Health Act; the Fair Credit Reporting Act; the Federal False Claims Act, 31 U.S.C. § 3729, et seq., as amended, including as amended by the Fraud Enforcement Recovery Act; the Colorado Medicaid False Claims Act, C.R.S. § 25.5-303.5,et seq.;and any other federal, state, or local employment statute, law,or ordinance, including any and all claims ofemployment discrimination based on race,color, creed, religion, national origin, sex, age, marital status, disability, sexual orientation, lawful offdutyconduct, or retaliation; (b) Any and alI common law claims such as wrongful discharge, violation of public policy, defamation, negligence, infliction of emotional distress, any intentional torts, outrageous conduct, interference with contract, fraud, misrepresentation, invasion of privacy, retaliation and other common law claims; (c) Any and alI claims for any of the following: money damages, including actual, compensatory, liquidated or punitive damages, equitable relief such as reinstatement or injunctive relief,front or back pay, wages,liquidated damages, costs, interest, expenses,attorneys' fees, or any other remedies; Page 3 of7 Agreement (d) It is expressly understood and agreed that Mr. Shapiro does not waive any rights or claims relating solely to vested retirement rights, accrued leave pay-outs, unemployment compensation benefits or workers' compensation bencfits to which he may be entitled. (e) Other than the Notice of Claim and Whistleblower Notice of Appeal filed with the City and County of Denver and the draft Federal Court Complaint delivered to the City ("Pending ~ Claims"), Mr. Shapiro agrees and affirms that as of the Effective Date of this Agreement,there is no s~therpending notice ofclaim,claim, complaint,charge or lawsuit with any person,court or administrative agency against the City or any ofthe Released Parties. Mr.Shapiro hereby agrees to withdraw and release the Pending Claims as of the Effective Date of this Agreement. 7. Release and Waiver of Rights under the Aye Discrimination in Employment Act.- Mr. Shapiro recognizes and agrees that under the terms and provisions ofthis Agreement, he is releasing and waiving rights he may have to pursue any claims against the City and/or the Released Entities arising under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"). In connection with his waiver of those rights, Mr. Shapiro specifically acknowledges the following: (a) Mr. Shapiro has been given a period oftwenty-one(21)days to review and consider the Agreement before signing it. Mr. Shapiro further understands he may use as much of the twenty-one (21) day period as he wishes prior to signing and is free to sign the Agreement before the expiration ofthe twenty-one (21) day period. He also understands that if he does not execute.the Agreement within the twenty-one(21) day period, none ofthe Parties shall have any rights or obligations under the Agreement; (b) Mr. Shapiro was advised in writing that he has the right to and may consult with an attorney before executing the Agreement. Mr. Shapiro has had the opportunity to consult with his attorneys about the Agreement and he has exercised his right to do so; (c} Mr. Shapiro understands that he must knowingly and voluntarily accept the terms ofthis Agreement before signing the Agreement; (d) Mr. Shapiro has seven (7) days following his execution of the Agreement to revoke the Agreement The Agreement will not become effective or enforceable until the expiration of the seven (7) day revocation period. To revoke the Agreement, Mr. Shapiro must advise the City in writing of his election to do so before the expiration of the seven (7) day revocation period and by addressing his notice of revocation to: David D. Powell, Jr., Ogletree Deakins Nash Smoak &Stewart,P.C., 1700 Lincoln Street, Suite 4650,Denver, CO 80203. The Effective Date ofthe Agreement shall be September 1, 2016, assuming the Agreement has been approved by City Council as of August 22, 2016 and provided Mr. Shapiro has not revoked the Agreement as described in this paragraph. Otherwise, the Effective Date shall be the eighth day after City Council approves the Agreement and provided Mr. Shapiro has not revoked the Agreement as described in this paragraph. (e) Mr. Shapiro is specifically releasing, among other potential causes of Page 4 of7 Agreement action, any claims he may have against the City under the AREA and all amendments thereto; (~ Mr. Shapiro is not waiving or relinquishing any rights or claims he may have against the City that arise after the Effective Date; '(g) The consideration given for this waiver and release is in addition to anything of value to which Mr. Shapiro was already entitled; and This Agreement is intended by the Parties to comply with the terms and (h) provisions ofthe Older Workers Benefit Protection Act of 1.990("OWBPA'~ and all amendments thereto. Inquiriies from Poteatial Employers.In the event the CAO receives inquiries from 8. .individuals or entities who ane considering Mr.Shapiro for potential employment,the CAO agrees only to provide the following information:(a)Copies ofMr.Shapiro's annual personnel evaluations (PEPRs)(b)Mr. Shapiro's date ofhire,(c)currerrt or last position held,.and(d)curnent or last s~~Iaty. Shapiro may also directthe potential employer #o contact persons Mr.Shapiro designates who are familiar with his performance. Agreement Not to Apply for Employment The Parties acknowledge that part 9. of the Settlement Payment compensates Mr. Shapiro for his economic damages including back and front pay. Accordingly and for this reason only, Mr. Shapiro has agreed not to seek or apply for employment with the CAO at any time after the Effective Date ofthe Agreement and not to seek or apply for employment in any other position with the City for three years following the Effective Date. Shapiro aclmowledges that ifhe does seek or apply for employment with the City in violation ofthis paragraph,the City is not obligated to consider the application or any inquiries regarding his future employment. Shapiro also hereby waives any claim or cause ofaction related to the failure or refusal by the City to consider his application or any inquiries regarding his future employment. 10. No Waiver of Breaches of A~rcement._ The failure of the Parties to insist upon strict compliance by another Party with any of the covenants or restrictions contained in this Agreement shall not be construed as a waiver, nor shall any course of action deprive either party ofthe right to require strict compliAnce with this Agreement. Complete Agreement and Modifications. This Agreement constitutes the entire 11.. agreement between the Parties with regard to the subject matter of this Agreement and, except as otherwise stated in #his Agreement, supersedes all prior and contemporaneous representations, contracts or agreements of any nature. Any modification or supplementation of any provision of this Agreement shall not be valid unless in writing and executed ~by the Parties or counsel for the Parties. The Parties further agree that the only representations made in order to obtain ,consent to the terms ofthis Agreement are stated herein and that they are signing this Agreement voluntarily and without coercion,intimidation or threat ofretaliation and after consultation with legal counsel. Knowing Eacecution. The Parties represent they each have read this Agreement, 12. discussed it with their attorneys or had an ample opportunity to do so, and understand each ofthe Page 5 of7 Agreement terms ofthis Agreement. The Parties further understand they each have entered into and executed this Agreement voluntarily and willingly. No Admission ofLiability This Agreement is not to be construed as an admission 13. of Liability on the part ofeither party, that a violation ofany federal, state, or local law or common Iaw duty, or any wrongdoing whatsoever has been committed by any party, nor does it constitute any factual or legal precedent or finding whatsoever; and may not be used as evidence in any subsequent proceeding of any kind, except in an action seeking to enforce its terms or alleging a breach ofthis Agreement. 14. Severability: If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions ofthis Agreement shall not be impaired thereby. Successors and Assigns. Except as otherwise provided herein, this Agreement I5. shall bind and inure to the benefit of and be enforceable by the City, Shapiro, each ofthe Parties' respective successors and assigns, and the Released Parties. Counterparts. This Agreement may be executed in separate counterparts, each of 16. which is deemed to be an original and all of which taken together constitute one and the same Agreement. 17. . Attorney's Fees and Costs.. Each party will bear his or its own attorney's fees and costs, except as otherwise provided in this Agreement. Aanlicable Law. Colorado law shall govern the validity, effect and interpretation 18. ofthis Agreement. WHEREFORE,the Parties voluntarily and willingly enter into this Agreement by affixing their signatures on the dates set forth below. ;~ ~ r~ By: ~ ~ /,~i ~ Stuart Shapiro Shaun Su livan Acting Denver City Attorney on behalf ofthe City Date ~ Date Page 6 of7 Agreement A.PP~OVED AS TO FO David D.Powell, Jr. Ogletree Deakins Nash Smoak & Stewart, P.C. 1700 Lincoln Street, Suite'4654 Denver, C4 80202 303.764.6800 Counsel for the City •~ Nathian D. Chambers Nathan D. Chambers.LLC 999 ~8th Street, Suite 2055 Denver,CO 80203 (303)825-2222 Brian T. Moore. Jcster, Gibson & Mooxe LLP 1999 Broadway, Suite 3225 benver, Colorado 80202 303.339-4779 Counsel for Mr. Shapiro k'age 7 of7 Agreement APPROVED AS TO FORM: David D.Powell, Jr. Ogletree Deakins Nash Smoak & Stewart,P.C. 1700 Lincoln Street, Suite 4650 Denver,CO 80202 33.764.6800 Counsel for the City Nathan D. Chambers Nathan D. Chambers LLC 999 18~ Street, Suite 2055 Denver, CO 80203 (303 2 r Jester, Gibson &Moore LLP 1999 Broadway, Suite 3225 Denver, Colorado 80202 303.339-4779 Counsel for Mr. Shapiro Page 7 of7 STATEMENT OF THE DENVER CITY ATTORNEY'S OFFICE Assistant City Attorney Stuart Shapiro returned to the Denver City Attorney's Office this year, after having been placed on paid leave in July of 214. On behalf of the City Attorney's Office, we apologize to Mr. Shapiro and his family for the manner in which the City Attorney's office publicly announced Mr. Shapiro's placement on "investigatory leave" in conjunction with the announcement of the settlement of the Hunter case. We further regret the length of time Mr. Shapiro was required to remain on leave before he was allowed to resume work in the City Attorney's Office. We acknowledge that the manner in which the leave was announced and the extended period of time in which the leave continued unfairly placed Mr. Shapiro's professional reputation under a cloud for over a year and a half. Since returning to work, he has faithfully performed his duties as assigned. During the period in which Mr. Shapiro was required to remain on leave, the City Attorney's Office determined that he did not engage in any conduct in regard to the Hunter litigation that warranted imposing discipline pursuant to Career Service Rules. Let this statement stand as a full and complete exoneration of Mr. Shapiro. Since Mr. Shapiro joined the City Attorney's Once in 2007, he has met and exceeded the performance expectations set by the City Attorney's Office for attorneys handling significant litigation matters on behalf of the City in state and federal courts. He also earned an excellent reputation among his peers, supervisors, clients and the judiciary. We want to acknowledge the contributions he made to our office and the City and County of Denver.