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HomeMy WebLinkAboutA6963 - EDWARD Z. KOTKIN - EMPLOYMENT AGREEMENTSEPARATION AGREEMENT 1. Parties. This Separation Agreement ("Agreement") is made and entered into, by and between Edward Z. Kotkin ("Mr. Kotkin") and the City of Palm Springs, a California charter city and municipal corporation, as a complete, final and binding agreement and release of all claims and potential claims with respect to their employment relationship. In this Agreement, Mr. Kotkin and the City may also be referred to collectively as the "Parties" or individually as "Party." 2. Recitals. This Agreement is made with reference to the following recitals: a. Mr. Kotkin was employed by the City as its City Attorney pursuant to an Employment Agreement between the Parties entered into on April 12,2017 ("Employment Agreement"). b. Mr. Kotkin has notified the City that he is resigning his employment with the City, effective February 28,2019. c. The City and Mr. Kotkin desire to amicably end his employment relationship with the City, ajnd allow a smooth transition to his successor. As considejation for this Agreement and the conditions set forth herein, the City and Mr. Kotkin agree to the following: 3. Separation of Employment. The Parties agree that Mr. Kotkin resigned his employment, and that the City has accepted his resignation. Mr. Kotkin's employment with the City will end on February 28, 2019 ("Separation Date"). The City will continue to pay all salary and benefits under the Employment Agreement through the Separation Date. On the Separation Date, Mr. Kotkin will receive his paycheck, inclusive of ail benefits to which he is entitled under the Employment Agreement. In addition, this Separation Date paycheck will include payment to Mr. Kotkin at his base salary rate for services rendered commencing on February 25,2019 through and including February 28, 2019. The City provides this Separation Date paycheck, with direct deposit to Mr. Kotkin's bank account on March 1,2019, in exchange for services rendered through the Separation Date. The Employment Agreement will terminate as of Februaty 28, 2019, and thereafter, apart from Mr. Kotkin's right to "cash-out" his accrued time concurrent with the Separation Date, and to receive funds on deposit in his Health Savings Account, Mr. Kotkin will not be entitled to any further compensation or benefits pursuant to the Employment Agreement. 4. Transition Services. The Parties agree that after the Separation Date, Mr. Kotkin will provide transition services, including but not limited to, remaining available to City staff, contract attorneys, and Council Members for information inquiries relative to knowledge of issues during his time as City Attorney for a finite period of three (3) months after the Separation Date, through May 31,2019. 8795113 2 PA026-00I 2.20.19 5. Consideration. As valuable consideration for Mr. Kotkin entering into this Agreement and providing transition services subject to the conditions set forth herein, the City and Mr. Kotkin agree that the City shall pay Mr. Kotkin three separate and equal monthly retainer payments for March, April and May 2019 in the amount of $18,000 (Eighteen Thousand Dollars), to be reported on Form 1099 ("Retainer Payments"). The City shall make these Retainer Payments by three (3) separate monthly checks payable to "Edward Z. Kotkin." The City shall disburse each Retainer Payment to Mr. Kotkin on the first business day of the month. The Parties also agree that the City will maintain Mr. Kotkin's current health insurance for the month of March 2019. 6. No Other Compensation or Benefits. Except as provided in this Agreement or pursuant to the terms of a City agreement with a law firm by which Mr. Kotkin is employed, Mr. Kotkin shall not be entitled to receive any other compensation or benefits of any sort from the City. Under no circumstances shall Mr. Kotkin bill or invoice the City for time spent providing Transition Services. 7. Payment of Taxes. Mr. Kotkin understands and agrees that the City is providing no tax or legal advice, and makes no representations regarding tax obligations or other consequences, if any, related to this Agreement or payments made hereunder. Mr. Kotkin further agrees to assuijie any such tax obligations or consequences that may aris<^ from this Agreement and agrees not to seek any indemnification from the City for any tax consequences or obligations related to this Agreement. 8. Return of Propert)'. Except as authorized by the City Manager, by the Separation Date, Mr. Kotkin shall return all of the City's property in his possession, including, but not limited to passwords, office keys and keys to all buildings. 9. Non-Disparagement. Each of the Parties agrees that they shall not make disparaging remarks about the other. Each of the Parties further agrees that they shall not encourage anyone to make any disparaging remarks about the other. In the case of Mr. Kotkin's agreement to this Paragraph 9, this includes remarks about the City's current or former employees, officers, directors or agents. 10. Liquidated Damages. The Parties acknowledge and agree that damages arising from a breach of Paragraph 9 would be difficult to ascertain. Therefore, the Parties agree that, if a Part>' breaches Paragraph 9 of this Agreement, upon proof in a court of competent jurisdiction, that breaching Party shall pay to the other liquidated damages in the amount of $500.00 per violation, which is a reasonable estimate of the damages from each violation. 11. Mutual Release of Claims C^Release"). As consideration for the payments and agreements described above, each of the Parties hereby irrevocably and unconditionally releases and discharges the other, and its officers employees, directors, and other representatives or agents, if any, ("Releasees") from any and all claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever, including those arising out of or related to Mr. Kotkin's employment or separation from employment with the City, including but not limited to any such claims based on contract, tort, anti-discrimination laws, including, without limitation, 2 8795113 2 PA026-00! 2.20.19 Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the California Fair Employment and Housing Act, claims arising under the California Labor Code, the Fair Labor Standards Act, all as amended, and any other state or federal law, whether such claim is based upon an action filed by a Party or by another governmental agency. 12. This Release shall be interpreted to the greatest extent permitted by law. It shall include any claims that either of the Parties could bring before any administrative body or court, whether or not known, suspected or claimed, which that Party ever had, now has, or in the future may have, by reason of, on account of, or arising out of any act or failure to act by any person, or any course of conduct, policy, or practice, condition or state of events. Including the drafting and contents of this Agreement. The Parties acknowledge and agree that this Agreement does not release any claims that may not be released as a matter of law. 13. Mr. Kotkin understands and expressly agrees that he is not providing this Release in exchange for a raise or bonus, or as a condition of employment or continued employment. Mr. Kotkin understands and expressly agrees that the Retainer Payments do not constitute a raise or bonus and that his employment has been resigned effective on the Separation Date and, therefore, he is not entitled to any continued employment in exchange for the Release, and the pjelease shall have no bearing or impact on the conditions o|f his resigned employment. 14. Section 1542 Waiver. As a further consideration and inducement for this Agreement, to the fullest extent pemiitted by law, each of the Parties hereby waives and releases 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, which they have or may have with respect to any claims against the other Party. California Civil Code section 1542 reads as follows: "A GENERAL I^ILEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 15. Each of the Parties hereby expressly agrees that this Agreement shall extend and apply to all unknown, unsuspected, and unanticipated claims, injuries, losses and damages as well as those that are now known or disclosed. 16. 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 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, Mr. Kotkin acknowledges that, in exchange for consideration stated herein, he knowingly and voluntarily waives and 3 8795I13 2PA026.00I 2.20.19 releases any rights that he may have under the ADEA and/or OWBPA. Mr. Kotkin 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 in which Mr. Kotkin understands. b. Mr. Kotkin is aware of and has been advised by (or has been provided time to seek advice from) legal counsel of his own choosing regarding 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. Mr. Kotkin 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 rights 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 lime before the expiration of the twenty-one (21) day period, in which case Mr. Kotkin expressly waives this 21-day review period. d. The waivers and release|s set forth in this Agreement shall not apply to any rights or claims that may arise that may arise under the ADEA and/or OWBPA after the effective date of this Agreement. e. Mr. Kotkin has had an opportunity to discuss this waiver and release with, and to be advised with respect thereto, by an attorney of his choice, and he agrees that he docs not need any additional time within which to review and consider this Agreement. f. Mr. Kotkin has seven (7) days following his execution of this Agreement to revoke it. If Mr. Kotkin desires to revoke the Agreement, he must give express and actual written notice of revocation to the City within seven (7) days after he executes this Agreement. Such notice of revocation shall be effective only if and when received in writing by the City Manager's Office before the close of business on the seventh calendar day after Mr. Kotkin signs this Agreement. 17. No Prevention of Filing Charge/Complaint with or Participating in Investigation with Federal, State or Local Agencies. Nothing in this Agreement, including but not limited to the Non-Disparagement clause and Mutual Release of Claims prevents Mr. Kotkin from filing a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission, Department of Fair Housing and Employment or any other federal, state or local agency charged with the enforcement of any laws, although by signing this Agreement Mr. Kotkin is waiving rights to individual relief based on claims asserted in such a charge or complaint, except where such a waiver of individual relief is prohibited. 8795113.2 PA026-00I 2.20.19 18. Disclosure of Unlnwfiii Acts in the Workplace. No provision of this Agreement, including but not limited to the Non-Disparagement clause and Mutual Release of Claims, prevents Mr. Kolkin from disclosing information about unlawful acts in the workplace, including but not limited to. sexual harassment. Additionally, nothing in this Agreement prevents Mr. Kotkin from testifying in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment relating to or involving the City, or an agent or employee of the City, if Mr. Kotkin is required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature. 19. No Claims or Lawsuits. Each of the Parties represents to the other that they have not filed any lawsuits, complaints, claims, applications or charges against Releasees (defined in Paragraph 11 above) with any stale or federal court, or local, state or federal agency, or administrative or quasi-adrninislrative tribunal or person, based on any events occurring on or prior to the date of e.xecution of this Agreement. 20. No Ailmission. Nothing in this Agreement constitutes or is intended to constitute an) finding of fact, admi.ssion of liability, or assessment of liability of the Parties with respect to I any claim that has been asserted or could be asserted. i I ' I 21. Entire Agrccnient. This Agreement 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 these Parties shall be binding unless reduced to a written instrument that specifically references this Agreement and is signed by authorized representatives of the Parties. 22. Scverabilit)'. 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. 23. Construction of Agreement. This Agreement shall not be construed against any one Party, but shall be construed as if jointly prepared by the Parties hereto. Any uncertainty or ambiguity shall not be interpreted against any one Party. 24. Governing Law. This Agreement is made and entered into in the State of California, and shall be governed, interpreted, and enforced under the laws of the State of California. The Parties agree that jurisdiction and/or venue of any action involving the validity, interpretation, or enforcement of this Agreement or any of its terms, provisions or obligations, or claimed breach tliereof, shall exist exclusively in a court or government agency located witliin, the County of Riverside, State of California. The Parties further agree that this Agreement may be used as evidence in any subsequent proceeding in which any of the Parties allege a breach of this Agreement or seeks to enforce its terms, conditions, provisions, or obligations. 5 87931132 PA026.00I 2.20.19 25. Waiver. No \vai\'er by any Parly lo this Agreeineiil of any breach of an)' term or provision of this Agreement shall be construed lo be, nor will be. a waiver of any preceding conciiiTenl 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. 26. Execiitinii of Counterparts. This Agicemcnl may be e.xeciiled in any number of counterparts, each of which shall be deemed a duplicate original when all couiUerparls arc executed, but all of which shall constitute a single instrument, and signatures submitted by electronic means or fax. shall be deemed the equivalent of original inked signatures. NOTICE: BY SIGNING THIS AGREEMENT. YOU ARE WAIVING AND RELEASING IMPORTANT AND POTENTIALLY VALUABLE LEGAL RIGHTS. PLEASE BE SURE TO RE.AD THIS AGREEMENT COMPLETELY AND CAREFULLY. Date: Edward Z. Kblkin ■f 1-1 In David 11. Ready. Esq., Ph. City Manager Dale; ity Clerk 87951I3 2PA026.001 2.20.19