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HomeMy WebLinkAbout01a. Separation Agreement SEPARATION AGREEMENT AND GENERAL RELEASE This Separation Agreement and General Release (“Agreement”) is entered into between the City of Downey (“CITY”) and Kathleen L. Midstokke (“MIDSTOKKE”). WHEREAS, MIDSTOKKE is an employee of CITY serving as its City Clerk; and WHEREAS, MIDSTOKKE and CITY now wish to end their employment relationship; and WHEREAS, the parties intend for this Agreement to be a full and complete settlement of all issues and claims with reference to each other and said employment relationship. NOW THEREFORE, and in consideration for the promises contained herein, the parties hereto agree as follows: 1.The parties agree that this Agreement is a compromise of any claims that exist or may exist, and that the actions of the parties in accomplishing this Agreement shall not be construed as an admission or acknowledgment of liability for wrongdoing on the part of any party. 2. By or before the expiration of the seven-day revocation period described below in Section 8(f), MIDSTOKKE shall be placed on paid administrative leave, with all pay and benefits, through June 30, 2011. During said administrative leave, MIDSTOKKE shall not be required to perform any of her normal duties as City Clerk; provided, however, that MIDSTOKKE must be available to respond to calls, report to City Hall and perform her normal duties if requested in writing by the Personnel Director. MIDSTOKKE may be contacted regarding professional issues/procedures by the Personnel Director only when necessary for the efficient operation of the City Clerk’s Office. MIDSTOKKE’s attorney of record shall be notified in writing as soon as practicable of communications between the Personnel Director and MIDSTOKKE. MIDSTOKKE shall not return to City Hall, with the exception to retrieve any/all personal possessions she may have at the CITY, unless requested to return, in writing, by the Personnel Director. Effective on the first day of her paid administrative leave, MIDSTOKKE shall return all city property, including but not limited to keys, books, credit cards and electronics to the Personnel Director. On July 1, 2011, MIDSTOKKE shall retire from the City of 1 Downey. On the effective date of retirement, CITY shall, as soon as practicable but no later than 30 days, issue to MIDSTOKKE a lump-sump payment equal to one month pay in the amount of Nine Thousand Seven Hundred Ninety Two Dollars and 39/100 ($9,792.39) together with payment for all accrued benefits pursuant to current CITY policy. CITY shall be entitled to deduct all applicable payroll taxes from said amount. 3. CITY shall cooperate in all ways necessary for MIDSTOKKE to apply and be approved for a CalPERS retirement at that time. 4. CITY agrees that if any prospective employer contacts the CITY, they shall be directed to the Human Resources Office who shall only provide the following information: (1) MIDSTOKKE’s dates of employment; (2) last position held; and (3) MIDSTOKKE left after giving proper notice of her retirement, unless MIDSTOKKE has provided an express written waiver authorizing the disclosure of further information. If MIDSTOKKE obtains outside employment during her paid administrative leave, MIDSTOKKE shall first comply with Article IX, Section 4 of CITY’s Personnel Rules and Regulations prior to accepting such outside employment. 5. MIDSTOKKE and CITY (including City’s employees, attorneys, agents, representatives, elected and/or appointed officials) agree that the parties will not at any time make comments, whether oral or written, that would tend to disparage, discredit, defame or injure the other party. This provision does not apply to truthful testimony given in compliance with a lawful subpoena or court order or in exercise of one’s Constitutional rights. Effective the first day of her paid administrative leave, MIDSTOKKE shall refrain from having any professional contact with any employee of the City unless requested, in writing, to have such contact by the Personnel Director. MIDSTOKKE may continue any social contact she has with employees of the City. 6. For and in consideration for the mutual promises and consideration set forth in this Agreement the sufficiency which is hereby acknowledged, MIDSTOKKE, on behalf of herself and her heirs, successors, assigns, attorneys and agents, hereby knowingly and voluntarily releases and forever discharges CITY, including its officials, employees, representatives, agents or designees, from any and all liabilities, claims, demands, damages, charges, debts, duties obligations, promises, payments, liens and/or causes of action either in law or in equity, of any 2 kind or any nature, with the exception of claims under California Workers Compensation laws, which MIDSTOKKE has had or may have had against them, whether known or unknown, which are directly or indirectly related to, based upon or arising from MIDSTOKKE’s employment with CITY; or her administrative leave and separation from employment with CITY; or her retirement pursuant to this Agreement, or related to or arising from any act or omission by CITY. Such release includes, without limitation, any claim or right to initiate a complaint, lawsuit, claim or proceeding against CITY and any of its officials, employees, representatives, agents or designees relating to the terms or conditions of MIDSTOKKE’s employment with CITY; or her administrative leave and separation from employment with CITY; or her retirement pursuant to this Agreement; or related to or arising from any act or omission by CITY. However, nothing in this Agreement shall be construed to be a waiver or release of any rights to enforce the terms of this Agreement. 7. Without limiting the foregoing, MIDSTOKKE understands and agrees that she is waiving any rights she had, may have had, has or may have to pursue any and all remedies available to her under any employment-related causes of action against CITY, including but not limited to any claims for discrimination, harassment or retaliation, or any rights arising from any law or other source such as the U.S. or California Constitutions, CITY’s Charter, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§2000e, et seq.), 42 U.S.C. sections 1981 and/or 1983, the Americans with Disabilities Act (42 U.S.C. §§12101, et seq.), the Age Discrimination in Employment Act (42 U.S.C. § 1983), Section 504 of the Rehabilitation Act of 1973, the Equal Pay Act of 1963, the Family Medical Leave Act (29 U.S.C. §§2614, et seq.), the California Family Rights Act (Gov. Code §12945.1), the Fair Labor Standards Act (29 U.S.C. §§201 et seq.), the Fair Credit Reporting Act (15 U.S.C. §§1681, et seq.), the California Fair Employment and Housing Act, California Civil Code Sections 45, 46, 51, 52 and 52.1, or the Investigative Consumer Reporting Agencies Act (CA Civ. Code §§1786, et seq.), any regulations implementing these statutes, or CITY’s internal policies and procedures, as well as any common law actions such as wrongful discharge, infliction of emotional distress, defamation, breach of 3 contract, or breach of the covenant of good faith and fair dealing. The parties acknowledge that the waiver MIDSTOKKE has made and the terms she has agreed to in this Section are knowing with full appreciation that she is forever foreclosed from pursuing any of the rights so waived. 8. MIDSTOKKE specifically acknowledges that pursuant to Title 29 of the U.S. Code, entitled "Age Discrimination In Employment Act," 1) it shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual's age; 2) to limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee, because of such individual's age; or 3) to reduce the wage rate of any employee in order to comply with said Chapter. MIDSTOKKE hereby acknowledges and agrees that this Agreement constitutes a knowing and voluntary waiver of any and all rights or claims that exist or that MIDSTOKKE has or may claim to have under the Age Discrimination in Employment Act (ADEA) for acts or omissions up to the date this Agreement is executed by MIDSTOKKE. This waiver does not extend to any ADEA claim that may arise after execution of this Agreement. MIDSTOKKE acknowledges that: a. the consideration provided through this Agreement is the sole consideration she will receive from CITY; b. she has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement; c. she has been provided a full and ample opportunity to study this Agreement, including a period of at least 21 days within which to consider entering into this Agreement; d. to the extent that MIDSTOKKE takes less than 21 days to consider this Agreement prior to execution, MIDSTOKKE acknowledges that she had sufficient time to consider this Agreement with legal counsel, and that she expressly, voluntarily and knowingly waives any additional time; e. she is aware of her right to revoke this Agreement at any time within the seven-day period following the date she signs the Agreement, and that this Agreement shall not become enforceable until the seven-day revocation period expires. Notice of revocation must be made in writing and be received by CITY through City Manager, Gerald M. Caton, 11111 Brookshire Avenue, CA 90241, no later than the seventh day after MIDSTOKKE executes this Agreement; 4 f. the effective date of this Agreement is the first date in which all of the following are true: this Agreement has been executed by CITY and MIDSTOKKE and the seven-day revocation period has expired without receipt of any revocation; and g. if MIDSTOKKE timely revokes this Agreement by or before the expiration of the seven- day revocation period, CITY’s obligations herein shall be terminated. 9. MIDSTOKKE and CITY acknowledge that she/it/they may hereafter discover facts different from or in addition to those known or believed to be true regarding the subject matter of this Agreement, but agrees that this Agreement shall remain in full force and effect notwithstanding the existence or discovery of such new or different facts. To that end, MIDSTOKKE and CITY agree that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past or present, arising from or attributable to MIDSTOKKE’s employment with CITY, her separation from her employment with CITY, and her retirement as required under this Agreement, and MIDSTOKKE and CITY expressly waive any and all rights granted to her/it/them under Section 1542 of the California Civil Code or any analogous state or federal law or regulation. Section 1542 of the Civil Code of the State of California which 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.” MIDSTOKKE and CITY acknowledge that this waiver is an essential term of this Agreement without which MIDSTOKKE and CITY would not have entered into this Agreement. 10. MIDSTOKKE and CITY agrees that if she/it/they, or anyone acting on her/its/their behalf, files or initiates a claim that has been released under this Agreement, then the party(s) defending such claim or application shall be entitled to the dismissal of such claim or application on the basis of this Agreement, and in addition, the party(s) defending such claim or application shall be entitled to an award of its actual costs and attorneys’ fees incurred in the defense of such released claim. 11. CITY and MIDSTOKKE agree that disputes arising from this Agreement are subject to arbitration pursuant to California Code of Civil Procedure Sections 1280, et seq. and 5 will be conducted by a mutually agreed upon neutral arbitrator or one selected in accordance with American Arbitration Association (“AAA”) rules. The arbitration will be conducted in accordance with AAA rules, except that the arbitration will be expedited, to wit: it will be conducted, argued (with oral instead of written closing arguments) and decided within 90 days of notice to arbitration by a party. Arbitration proceeding arising from this Agreement shall be heard in Los Angeles County. The prevailing party in the arbitration proceeding will be entitled to recover reasonable costs, including attorneys’ fees, as determined by the arbitrator. 12. This Agreement shall be interpreted in accordance with the laws of the State of California. 13. Should any provisions of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provision shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be part of this Agreement. 14. This Agreement may be executed as one or more counterparts, and each such counterpart shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy or facsimile transmission of the Agreement, including signatures, shall be deemed to constitute evidence of the Agreement having been executed. 15 This Agreement is a full, complete, and final settlement of any and all claims, issues, and demands based on, arising out of, or connected in any way with the employment of MIDSTOKKE by CITY. This Agreement supersedes all prior negotiations, commitments, representations, promises, understandings, statements, or stipulations, oral or written, between MIDSTOKKE and CITY, its officers, employees, agents, representatives and attorneys, and constitutes the entire agreement of the parties. 16. This Agreement shall be binding upon the parties, and upon their respective heirs, representatives, executors, administrators, successors and assigns and shall inure to the benefit of each of them, and to their respective heirs, representatives, executors, administrators, successors, and assigns as though they were parties hereto. 17. No provisions of this Agreement may be waived or modified, unless in writing and signed by all the parties. 18. Each of the parties agrees to bear her or its own expenses, costs and attorney’s fees in the negotiation and implementation of this Agreement. 6 19. Any notices required under this Agreement shall be given to the respective parties as follows: (a) Notices to CITY shall be addressed to City of Downey, ATTN: City Manager, 11111 Brookshire Avenue, Downey, CA 90241. (b) Notices to MIDSTOKKE shall be addressed to MIDSTOKKE c/o her attorney of record and at her home address as reflected in the personnel records of CITY or other such address as MIDSTOKKE may, from time to time, provide to CITY. Such notice shall be deemed made when personally delivered or when mailed, two business days after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 20. By executing this Agreement, each party represents that they do so freely and voluntarily and that each is fully aware of the contents and effects thereto and that this Agreement is entered into without duress or undue influence on the part of or on behalf of either of the parties, or of any other person, firm or other entity. Each party further warrants that they have the authority to execute and to enter into this Agreement. MIDSTOKKE warrants that she has not assigned any interest in any claim against CITY to any individual or entity. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth below. Dated: _____________________ Kathleen L. Midstokke Employee of City of Downey Dated: ______________________ ___________________________________ Luis H. Marquez, Mayor City of Downey 7 Attest: __________________________________ Deputy City Clerk Approve as to form: __________________________________ Yvette M. Abich Garcia Downey City Attorney _______________________________ Corey W. Glave Attorney for Kathleen Midstokke 8