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HomeMy WebLinkAboutFLETCHER, JOSEPH W.A-2010-247 Severance Agreement and Mutual General Releases THIS SEVERANCE AGREEMENT AND MUTUAL GENERAL RELEASES (hereinafter referred to as "Agreement") is entered into between the City of Santa Ana ("City") and Joseph W. Fletcher ("Officer,"), Officer and the City may be referred to herein individually as "Party" or collectively as the "Parties". The purposes of this Agreement are to bring Officer's employment with the City to a conclusion in an agreeable manner and to settle any and all outstanding disputes relating to his employment, RECITALS WHEREAS, Officer is the City Attorney of the City, employed under City Resolutions Nos, 2002-065, 2004-101 and 96-063; WHEREAS, pursuant to Resolution No, 96-063, Officer is entitled to Severance Pay upon termination; WHEREAS, Officer is willing to resign his employment with the City upon the terms and . conditions in thus Agreement; and WHEREAS, the Parties would like to bring Officer's employment with the City to a conclusion in an agreed manner and settle any and all outstanding disputes relating to his employment. NOW, THEREFORE, in consideration of the premises and mutual promises herein contained, it is agreed as follows: 1. Resignation Date. Officer agrees that his employment with the City shall be severed on December 31, 2010 ("Severance Date"), 2. Severance Payment, In exchange for Officer's acceptance of the terms and conditions set forth herein, the City agrees to pay to Officer the suin of One Hundred Forty -Two Thousand and Eighty Dollars ($142,080.00) less applicable payroll tax withholdings and deductions, which is the cash equivalent to six (6) months salary and benefits at his current rate of pay, payable within two (2) business days following the later of 1) City Council approval of the Agreement; 2) execution of the Agreement by the City and Officer; and 3) expiration of the revocation period under section 10,f of the Agreement, 3. Payment For Earned Compensation. The City shall pay Officer for all earned and unused accrued vacation and sick leave less applicable payroll tax withholdings and deductions on the Severance Date, 4. Unemployment )Benefits. The City agrees not to oppose Officer's application for unemployment benefits. ^ Page 1 of 6 465490.1 5A370-001 5. _Report of Pending Matters. Officer represents and warrants that by the close of business on December 30, 2010, he will provide the City Manager with a report detailing all open and pending matters being handled by the City Attorney's office. 6. Return of Property. Officer represents and warrants that by the close of business on the Severance Date, he will. return to the City all property owned by the City including all Files, books, passwords, documents, and physical or personal property owned by the City. 7. Indemnification. The City agrees that Officer shall be entitled to the defense or indemnification protections that may be afforded to public employees in Government Code sections 825 through 825.6 and sections 995 through 996.6. Defense or indemnification, if any, will only be available for conduct arising out of Officer's course and scope of employment with the City up to and including the Severance Date. Notwithstanding the City's general obligation to defend or indemnify Officer if he is charged with acts that occurred in the course and scope of his employment, the City may refuse to provide Officer a defense or indemnity under any of the circumstances allowed for doing so set forth in Government Code sections 825 through 825.6 and sections 995 through 996.6. 8. Mutual General -Releases of Claims and Parties. Officer hereby irrevocably and unconditionally releases and discharges the City, its affiliates, officers, employees, City Council members, attorneys or agents (referred to herein individually as "Released Party" or collectively as the "Released Parties") :from any and all claims, charges, complaints, lawsuits, liabilities, claims for relief, obligations, promises, agreements, contracts, interests, controversies, injuries, damages, actions, causes of actions, suits, rights, demands, costs, losses, debts, liens, judgments, indebtedness, and expenses (including attorneys' fees and costs actually incurred), and all other claims and rights of action of all kinds and descriptions, whether KNOWN OR UNKNOWN, suspected or unsuspected, actual or potential, Which Officer now has, owns or holds, or claims to have, own or hold against the Released Parties, at common law or under any statute, rule, regulations, order or law, whether federal, state, or local, or on any grounds whatsoever, with respect to any act, omission, event, matter, claim, damage, loss, or injury arising out of and/or related in any way to the employment of and/or the termination of such employment between Officer and the City, and/or with respect to any other claims, matter, or event arising prior to the execution of this Agreement. Without Iimiting the foregoing, Officer understands and agrees that he is waiving any rights he has, may have had, or may have, to pursue any and all remedies available to him under any employment -related cause of action against the Released Parties, including without limitation, any claims for discrimination, harassment and/or retaliation, claims under the Ralph M. Brown Act (California Government Code §54950 et seq.),. the California Fair Employment and Housing Act (California Government Code § 12900 et seq.), the California Family Rights Act (California Government Code § 12945.2), the Unruh and George Civil Rights Acts (California Civil Code §51 et seq.), all provisions of the California Labor Code and any wage orders or similar directives or authorities issued by any federal or state authority having enforcement powers, the Constitution of the United States, the Constitution of the State of California, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000c et seq.), the Age Discrimination in Employment Act (29 U.S.C. §621, et. seq.), the Older Workers Benefit Protection Act (29 U.S.C. §626 et seq.)the Equal Pay Act (29 Page 2 of 6 465490.1 SA370-001 U.S.C. §206(d)), the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), the Family and Medical Leave Act (29 U.S.C. §2601 et seq.), the Employment Retirement Income Security Act of 1974 (29 U.S.C. §1001 et seq.), Sections 1981-88 of Title 42 of the United States Code (42 U.S.C. §1981 et seq.), the American with Disabilities Act (42 U.S.C. §12101 et seq.), claims of retaliation or whistle -blowing (including but not limited to California Labor Code § 1102.5 et seq. and Government Code § 12653), claims for breach of any type of contract, including written, oral or implied, breach of any covenant, promise or representation pertaining to Officer's employment, whether expressed or implied, and all other claims arising in contract, tort or equity or under any other statute or regulation, federal, state or local, up to the date of execution of this Agreement. City hereby irrevocably and unconditionally releases and discharges Officer, his employees, attorneys and agents (referred to herein individually as "City -Released Party" or collectively as the "City -Released Parties") from any and all claims, charges, complaints, lawsuits, liabilities, claims for relief, obligations, promises, agreements, contracts, interests, controversies, injuries, damages, actions, causes of actions, suits, rights, demands, costs, losses, debts, liens, judgments, indebtedness, and expenses (including attorneys' fees and costs actually incurred), and all other claims and rights of action of all kinds and descriptions, whether KNOWN OR UNKNOWN, suspected or unsuspected, actual or potential, which City now has, owns or holds, or claims to have, own or hold against Officer and the City -Released Parties, at common law or under any statute, rule, regulations, order or law, whether federal, state, or local, or on any grounds whatsoever, with respect to any act, omission, event, matter, claim, damage, loss, or injury arising prior to the execution of this Agreement. 9. Mutual Section 1542 Waivers. As a further consideration and inducement for this Agreement, to the extent permitted by law, Officer and the City each hereby waive and release any and all rights under section 1542 of the California Civil Code or any analogous state, local, or federal law, statute, rule, order or regulation, he or it has or may have with respect to any claims against each other, or against the Released Parties or the City -Released Parties. California Civil Code section 1542 reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Officer and the City each waive any right he or it might have to invoke section 1542 now or in the future with respect to .the releases set out in this Agreement. Officer and the. City each recognize and acknowledge that factors which have induced him or it to enter into this Agreement may turn out to be incorrect or different from what he had previously anticipated, and Officer and City each expressly assume all of the risks of this wavier of section 1542. 10. Specific Acknowledgment of Waiver of Claims Under ADEA and OWBPA. The Age Discrimination in Employment Act of 1967 ("ADEA"; 29 U.S.C. §§ 621-634) makes it illegal for an employer to discharge any individual or otherwise discriminate with respect to the Page 3 of 6 465490.1 SA370-001 nature and privileges of an individual's employment on the basis that the individual is age forty or older. The Older Workers Benefit Protection Act ("OWBPA"; 29 U.S.C. §§ 626 et seq) augments the ADEA and prohibits the waiver of any right or claim under the ADEA unless the waiver is knowing and voluntary. By entering into this Agreement, Officer acknowledges that, in exchange for consideration stated herein, he knowingly and voluntarily waives and releases any rights that he may have under the ADEA and/or OWBPA. Officer further acknowledges that he has been advised and understands, pursuant to the provisions of the ADEA and OWBPA that: a. This waiver/release is written in a manner Officer understands. b. Officer is aware of and has been advised by a representative or legal counsel of his own choosing of his rights under the ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he currently may have under the ADEA, OWBPA, or similar age discrimination laws. c. Officer is entitled to a reasonable time of at least twenty-one (21) days within which to review and consider this Agreement, and the waiver and release of any nights he may have under the ADEA, the OWBPA, or similar age discrimination laws, but he may, in the exercise of his own discretion, sign or reject this Agreement at any time before the expiration of the twenty-one (21) day period. To the extent that Officer takes less than 21 days to consider this Agreement prior to execution, Officer acknowledges that he had sufficient time to consider this Agreement with his legal counsel and that he expressly, voluntarily and knowingly waives any additional time. d. The waivers and releases set forth in this Agreement shall not apply to any rights or claims that may arise after the effective date of this Agreement. e. Officer has an opportunity to discuss this waiver and release with, and to be advised with respect thereto, by an attorney of his choice prior to executing this Agreement. f. Officer has seven (7) days following his execution of this Agreement to revoke this Agreement. If Officer desires to revoke the Agreement, he must give express and actual written notice of revocation to the City of Santa Ana within seven (7) days after he (Officer) executes this Agreement. Such notice of revocation shall be effective only if and when received in writing by the City of Santa Ana Human Resources Department before the close of business on the seventh calendar day after Officer signs this Agreement. Page 4 of 6 465490.1 SA370-001 OFFICER ACKNOWLEDGES BY HIS SIGNATURE ON THIS AGREEMENT THAT HE FULLY UNDERSTANDS HIS RIGHT TO DISCUSS THIS WAIVER WITH LEGAL COUNSEL, THAT HE HAS CAREFULLY READ AND FULLY UNDERSTANDS THE WAIVER, AND THAT HE IS VOLUNTARILY AGREEING TO WAIVE ANY CLAIMS THAT HE HAS OR MAY HAVE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE OLDER WORKERS BENEFIT PROTECTION ACT, AND ANY OTHER LAWS PROHIBITING AGE DISCRIMINATION IN EMPLOYMENT ARISING FROM OR RELATED OR ATTRIBUTABLE TO OFFICER'S EMPLOYMENT WITH THE CITY. 11. Employment Relinquished and No Reemplovment. Officer specifically and expressly waives any right which he has, or may have, to be employed, reemployed, rehired, and considered for employment or reinstatement by the City. 12. Representation by Counsel. Officer acknowledges that he is fully aware of his right to discuss any and all aspects of this matter with an attorney of his choice, that the City has advised him of that right, that he has carefully read and fully understands the provisions of this Agreement and that he is voluntarily entering into this Agreement. City acknowledges that at all times related to the negotiation, drafting and approval of this Agreement and its terms, Officer has played no role in his capacity as City Attorney, and that City and its officials have sought independent legal advice in such regards. 13. Entire Agreement and Admissibility. This Agreement constitutes the complete understanding between or among Officer on the one hand, and the City and any other Released Party on the other hand, and supersedes any and all prior agreements, promises, representations, or inducements, no matter their form, concerning the subject matter of this Agreement. The Parties desire that this Agreement represents a single integrated contract expressing the entire agreement of the Parties with respect to matters set forth herein. No promises, agreements, or modifications to this Agreement made subsequent to the execution of this Agreement by the Parties shall be binding unless reduced to a written instrument which specifically references this Agreement and is signed by authorized representatives of the Parties. The Parties to this Agreement represent that this Agreement may be used as evidence in any subsequent proceeding in which any of the Parties alleges a breach of this Agreement or seeks to enforce its terms, provisions or obligations. 14. Assignment of Rights. Officer represents that he has not assigned or transferred or purported to assign or transfer, to any person or entity, any claim or any portion of interest against the City. 15. Severability. Should any of the provisions or terms of this Agreement be determined illegal, invalid, or unenforceable by any court or governmental agency of competent jurisdiction, validity of the remaining parts, terms, or provisions, shall not be affected thereby and said illegal, invalid, or unenforceable part, term, or provision shall be deemed not to be a part of this Agreement. Page 5 of b 465490.1 SA370-001 16. Waiver. No waiver by any Party to this Agreement of any breach of any term or provision of this Agreement shall be construed to be, nor will be, a waiver of any preceding concurrent or succeeding breach of the same, or any other term or provision hereof. No waiver shall be binding unless in writing and signed by the Party to be charged or held bound. 17. ,Jurisdiction. The Parties hereby understand and agree that this Agreement, and the attachments hereto, have been negotiated and executed in the State of California and shall be governed by, and construed under, the laws of the State of California. In the event of a dispute the parties hereto specifically agree the judicial jurisdiction and venue shall be with and in the County of Orange, State of California. 18. This Agreement may be executed in any number of counterparts, each of which shall e deemed a duplicate original when all counterparts are executed, but all of which shall constitute a single instrument. PLEASE READ CAREFULLY. AND RELEASE INCLUDES CLAIMS. DATED: DATED: tius CONFIDENTIAL SEVE RANCE AGRZEEMENT A RELEASE OF ALL KNOWN AND UNKNOWN By CITY -OF SANTA ANA B Z�` y I PULI GU F, MAYOP, ATTEST: DATED: _L By----- MJ4 ARIA D. HUIZAR CLERK OF THE COUNCIL DATED: 1—k4 By AS To FO E Z ETH T. ACE, S �CrAl- COUNSEL, TO THE CITY OF EL ANA Page 6 of 6 465490,1 SA370-001