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HomeMy WebLinkAbout11/17/2004 - STAFF REPORTS (5) SETTLEMENT AGREEMENT TO BE PROVIDED AGREEMENT OF SETTLEMENT AND GENERAL RELEASE 1. PARTIES This Settlement Agreement and General Release (hereinafter referred to as the "AGREEMENT") is entered into by and between MICHAEL C. MCCRACKEN (hereinafter referred to as "MCCRACKEN") and the CITY OF PALM SPRINGS (hereinafter referred to as the "CITY"). 2. RECITALS 2.1. MCCRACKEN was hired by the CITY on or about September 24, 1980 and currently holds the position of Conunander in the Police Department. Pursuant to the terms of this AGREEMENT, MCCRACKEN intends to retire from CITY service effective December 1, 2004. 2.2. MCCRACKEN and the CITY desire to resolve any and all disputes that MCCRACKEN may have against the CITY, its employees, agents, and/or representatives, including but not limited to, disputes arising out of or related to MCCRACKEN's employment with the CITY and voluntary retirement therefiom. Accordingly, the parties hereby seek release, discharge and termination of any and all claims, demands, controversies, causes of action, damages, rights, liabilities, and obligations owed to MCCRACKEN by the CITY and/or its employees, agents, and representatives existing at the time of the EFFECTIVE DATE of this AGREEMENT, save and except as may be expressly set forth herein. 2.4 MCCRACKEN acknowledges that CITY's payment at the time of MCCRACKEN's December 1, 2004 retirement shall represent the total monetary compensation owed to MCCRACKEN by the CITY as of MCCRACKEN's retirement, and that upon delivery of this sum MCCRACKEN will be paid all earned salary, accrued but unused annual leave and/or all other termination compensation/benefits as required by law or any other agreement with the CITY except for any sums entitled MCCRACKEN in connection with any present or future workers' compensation proceedings, including entitlements pursuant to Labor Code Section 4850. Accordingly, MCCRACKEN knowingly and voluntarily waives and relinquishes any and all claims and rights to any further or additional compensatory obligations except as expressly provided herein. Wy ra0- Agreement of Settlement and General Release—McCracken 3. CONSIDERATION 3.1. In exchange for the early retirement and releases set forth herein, the CITY agrees: (a) To pay the full premium for MCCRACKEN and all eligible dependents under the health insurance plan maintained by the CITY in accordance with Section 8 of the July 1, 2000 — June 30, 2004 Memorandum of Understanding covering the Police Management Unit as if he had successfully completed 25 years of CITY service so as to be entitled to a one hundred percent (100%) contribution from the CITY, with the payments beginning upon MCCRACKEN's retirement. 3.2 In exchange for the payments and representations made herein, . MCCRACKEN agrees: (a) To retire from his employment with the CITY, with said retirement to be effective December 2, 2004; last date of employment being December 1, 2004; (b) To not apply for or seek to again be employed by the City of Palm Springs after the EFFECTIVE DATE of this AGREEMENT and thus waives any recall or return to work rights provided by any rule, ordinance, code, policy and/or collective bargaining agreement; and (c) To release, acquit, and forever discharge the CITY, and all of the CITY's agents, officers, employees, representatives, insurers, attorneys, and all persons acting by, through, under, or in concert with any of them, and each of them, from any and all claims, charges, complaints, liabilities, obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, darnages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which MCCRACKEN, and his heirs, representatives, successors, and assigns, now has, or may acquire in the future, which relate to or arise out of any act, omission, occurrence, condition, event, transaction, or thing which was done, omitted to be done, occurred or was in effect at anytime from the beginning of time up to and including the EFFECTIVE DATE ("CLAIMS"), without regard to whether such CLAIMS arise under the federal, state or local constitutions, statutes, rules or regulations, or the common law. MCCRACKEN expressly version 1 Page 2 of 8 MCCRACKEN's Initials Agreement of Settlement and General Release—McCracken acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, claims related to his employment with the CITY, any claims for wages, overtime or benefits, Labor Code section 132a claims, Labor Code section 4553 claims, any alleged breach of any duty, any alleged employment discrimination, harassment, retaliation or unlawful discriminatory act, or any claim or cause of action including, but not limited to, any and all claims whether arising under any federal, state or local law prohibiting breach of employment contract, wrongful termination, or employment discrimination based upon age, race, color, sex, religion, handicap or disability, national origin or any other protected category or characteristic, including but not limited to the Fair Employment and Housing Act, the Federal Fair Labor Standards Act, the Americans With Disabilities Act, and Title VII of the Civil Rights Act of 1964. Claims shall not include and this AGREEMENT shall not affect any workers' compensation claim which is presently being, or hereafter may be, asserted on behalf of MCCRACKEN except for any Labor Code section 132a claim related to MCCRACKEN's retirement and voluntary separation from employment. 4. Specific Acknowledgment of Waiver of Claims under ADEA and OWBPA The Age Discrimination in Employment Act of 1967 (hereinafter referred to as the "ADEA") 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 (40) or older. The Older Workers Benefit Protection Act (hereinafter referred to as the "OWBPA," 29 U.S.C. § 626, et. seq., Pub L 101-433, 104 Stat. 978 (1990)) further 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, MCCRACKEN acknowledges that he knowingly and voluntarily, for just compensation in addition to anything of value to which MC CRAKEN was already entitled, waives and releases any rights he may have under the ADEA and/or OWBPA. MCCRACKEN 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 understood by MCCRACKEN; (b) MCCRACKEN is aware of, and/or has been advised 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 and/or similar age discrimination laws; version I Page 3 of 8 MCCRACKEN's Initials Agreement of Settlement and General Release—McCracken (c) MCCRACKEN 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 and similar age discrimination laws; but may, in the exercise of his own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty-one (21) days; (d) The waivers and releases set forth in this AGREEMENT shall not apply to any rights or claims that may arise under the ADEA and/or OWBPA after the EFFECTIVE DATE of this AGREEMENT; (e) MCCRACKEN has been advised by this writing that he should consult with an attorney prior,to executing this AGREEMENT; (f) MCCRACKEN has discussed this waiver and release with, and been advised with respect thereto by, his counsel of choice, and that he does not need any additional time within which to review and consider this AGREEMENT; (g) MCCRACKEN shall have seven (7) days following his execution of this AGREEMENT to revoke this AGREEMENT; (h) Notice of revocation must be provided, in writing, to the CITY pursuant to Paragraph 8.9 herein, and must state, "I hereby revoke my acceptance of our Agreement of Settlement and General Release;" and (i) This AGREEMENT shall not be effective until all parties have signed and ten(10) days have passed since MCCRACKEN's execution("EFFECTIVE DATE"). 5. UNKNOWN CLAIMS In relation to the release provisions of Paragraphs 3 and 4 above, MCCRACKEN understands that California Civil Code section 1542 reads as follows: "General Release--Claims Extinguished" shed" "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Except as expressly provided above in Paragraphs 3(c) and 7.6, MCCRACKEN hereby waives the protection of California Civil Code section 1542. Version I Page 4 of 8 MCCRACKEN's Initials V jff�\ Agreement of Settlement and General Release—McCracken 6. WAIVER OF ADDITIONAL CLAIMS MCCRACKEN hereby waives any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and 5 above. 7. REPRESENTATIONS AND WARRANTIES Each of the parties to this AGREEMENT represents and warrants to, and agrees with, each other party as follows: 7.1. Advice of Counsel: Each party has received independent legal advice from its attorney(s) with respect to the advisability of making the settlement provided for herein and with respect to the advisability of executing this AGREEMENT. The parties acknowledge that they have been represented in the negotiations for and in the performance of this AGREEMENT by counsel of their own choice or that they have been given the opportunity to do so; that they have read this AGREEMENT; that they have had this AGREEMENT fully explained to them by such counsel or have had such opportunity; and that they are fully aware of the contents of this AGREEMENT and of its legal effect. . 7.2. No Fraud in Inducement: No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this AGREEMENT, and neither party relies upon any statement, representation, omission or promise of any other party (or of any officer, agent, employee, representative, or attorney of or for any party) in executing this AGREEMENT, or in making the settlement provided for herein, except as expressly stated in this AGREEMENT. Each term of this AGREEMENT is contractual and not merely a recital. 7.3. Independent lnvesti ation: Each party to this AGREEMENT has made such investigation of the facts pertaining to this settlement and this AGREEMENT and all the matters pertaining thereto, as it deems necessary. 7.4 Authori . Each party represents to the other that the party has the right to enter into this AGREEMENT, and that it is not violating the terms or conditions of any other AGREEMENT to which they are a party or by which they are bound by entering into this AGREEMENT. The parties represent that they will obtain all necessary approvals to execute this AGREEMENT. It is further represented and agreed that the individuals signing this AGREEMENT on behalf of the respective parties have actual authority to execute this AGREEMENT and, by doing so, bind the party on whose behalf this AGREEMENT has been signed. Version 1 Page 5 of 8 MCCRACKEN's Initials 1%0 Agreement of Settlement and General Release—McCracken 7.5. Ownership of Claims: MCCRACKEN represents and warrants as a material tern of this AGREEMENT that MCCRACKEN has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of the CLAIMS disposed of by this AGREEMENT. In executing this AGREEMENT, MCCRACKEN further warrants and represents that none of the CLAIMS released by MCCRACKEN thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity. 7.6. Indemnification: Nothing in this agreement shall be regarded as a waiver or release of any right of MCCRACKEN to be defended or indemnified by the CITY in accordance with Section 825 of the California Government Code with respect to any subsequent action brought against him regarding an act or omission alleged to have occurred within the scope of his employment with the City. 7.7. Future Cooperation: The parties will execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this AGREEMENT. 8. MISCELLANEOUS 8.1. No Admission: Nothing contained herein shall be construed as an admission by the CITY or its employees of any liability of any kind. The CITY and its employees deny any liability in connection with any claim and intend hereby solely to avoid further litigation and buy their peace. 8.2. Governing Law: This AGREEMENT has been executed and delivered within the State of California, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 8.3. Full Integration: This AGREEMENT is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This AGREEMENT may be amended only by a further agreement in writing, signed by the parties hereto. 8.4. Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, employees, representatives, officers, directors, divisions, subsidiaries, affiliates, assigns,heirs, successors in interest and shareholders. 8.5. Joint Draftine: Each party has cooperated in the drafting and preparation of this AGREEMENT. Hence, in any construction to be made of this AGREEMENT, the same shall not be construed against any party. 8.6. Severability: hi the event that any tern, covenant, condition, provision or Version 1 Page 6 of 8 MCCRACKEN's Initials iR Agreement of Settlement and General Release—McCracken agreement contained in this AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement and the remainder of this AGREEMENT shall still be in full force and effect. 8.7. Titles: The titles included in this AGREEMENT are for reference only and are not part of the terms of this AGREEMENT, nor do they in any way modify the tenus of this AGREEMENT. 8.8. Counterparts: This AGREEMENT may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one AGREEMENT,which shall be binding upon and effective as to all parties. 8.9. Notice: Any and all notices given to any party under this AGREEMENT shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to have been given on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail. version r Page 7 of 8 MCCRACKEN's Initials hy',9 Agreement of Settlement and General Release—McCracken As to MCCRACKEN: Michael C. MCCRACKEN address on file with City As to the CITY: City of Palm Springs And To David J. Aleshire, Esq. Post Office Box 2743 Aleshire & Wynder, LLP Palm Springs, California 92263 18881 Von Kalman, Suite 400 Attn: Sue Mills Irvine, Californa 92612 WHEREFORE, the Parties hereto have read all of the foregoing, understand the same, and agree to all of the provisions contained herein. DATED: MICHAEL C. MCCRACKEN By: (�• M1�( Michael C. Me racken City Clerk City Manager Approved As To Form And Content: CITY ATTORNEY'S OFFICE Colin J. Tanner, Esq. Stephen H. Silver Deputy City Attorney Attorney for Michael McCracken version 1 Page 8 of 8 MCCRACKEN's Initials Agreement of Settlement and General Release—McCracken As to MCCRACKEN: Michael C. MCCRACKEN address on file with City As to the CITY: City of Palm Springs And To David J. Aleshire, Esq. Post Office Box 2743 Aleshire & Wynder, LLP Palm Springs, California 92263 18881 Von Karman, Suite 400 Attn: Sue Mills Irvine, California 92612 WHEREFORE, the Parties hereto have read all of the foregoing, understand the same, and agree to all of the provisions contained herein. DATED: MICHAEL C. MCCRACKEN By: Michael C.Mc Cracken City Clerk City Manager Approved As To Form And Content: CITY ATTORNEY'S OFFICE AStephColin J.Tamier, Esq. H. Silver Deputy City Attorney Attorney for Michael McCracken Version 1 Page 8 of 8 MCCRACKEN's Initials MINUTE ORDER NO. RATIFYING CLOSED SESSION APPROVAL OF NOVEMBER 10, 2004, TO APPROVE A SETTLEMENT AGREEMENT WITH MICHAEL C. MCCRACKEN. ; -------------- I HEREBY CERTIFY that this Minute Order, ratifying closed session approval of November 10, 2004, to approve a settlement agreement with Michael C. McCracken, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 17th day of November 2004. KATHIE HART Acting City Clerk