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HomeMy WebLinkAbout11/26/2002 - STAFF REPORTS (19) AGRF,FMFNT OF SFT-U F.MFNT AND GFNI+'.RAL.RELEASE 1. PARTTFS This Settlement Agreement and General Release (hereinafter referred to as the "AGREEMENT") is entered into by and between MICHAEL T. KEW (hereinafter referred to as "KEMP")and the CITY OF PALM SPRINGS(hereinafter referred to as the"CITY"). 2. RECITALS 2.1. KEMP was hired by the CITY on or about October 15, 1980 and currently holds the position of Fleet Operations Supervisor in the Department of Parks, Recreation & Facilities. KEW intends to retire from CITY service effective December 27,2002. 2.2. KEW and the CITY mutually desire to resolve any and all disputes that KEMP may have against the CITY, its employees, agents, and/or representatives, including but not limited to, disputes arising out of or related to KEMP's employment and voluntary termination thereof with the CITY. 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 KEW by the CITY and/or its employees, agents, and representatives existing at this time, save and except as may be expressly set forth herein. 2.4 KEMP acknowledges that CITY's payment at the time of KEMP's December 27, 2002 retirement of the (gross minus cost of health insurance) sum of seventeen thousand nine hundred forty five dollars and 73 cents ($17,945.73)represents the total monetary compensation owed to KEW by the CITY as of KEW's retirement date (including the reduction in annual leave hours set forth in Paragraph 3.2(c) below), and that upon delivery of this sum KEMP will be paid all earned salary, accrued but unused annual leave and/or all other termination compensation/benefits as required by law or any agreement with the CITY. Accordingly, KEMP knowingly and voluntarily waives and relinquishes any and all claims and rights to any further or additional compensatory obligations except as expressly provided herein. 3. CONSLDFRATtON 3.E In exchange for the releases set forth herein,the CITY agrees: (a)to pay the full premium for KEMP's Personal & Two Party Medical Plan, which as a twenty year employee he would normally be eligible for a seventy-five percent (75%), contribution from the CITY, with the payments beginning upon KEMP's retirement except as otherwise provided in Paragraph 3.2(c)below. Page I of 9 In,S26691v1 KEMP's Initials 3.2 In exchange for the payments and representations made herein,KEMP: (a) shall retire from his employment with the CITY, with said retirement to be effective December 27,2002; (b)shall be relived of his responsibility to report to work and of his work duties in the interim and shall use his accrued annual leave to cover his work absence dining the period November 1,2002 up through December 27,2002; (c) shall pay the entire twenty-five percent (25%) Personal & Two Party Medical Plan premium differential referenced in Paragraph 3.1 above for the period December 27,2002 through October 15, 2005 by means of a reduction in his annual leave hours paid upon retirement and/or separation in the estimated amount of $5,810.00 with any overpayment refunded to him witbout interest by October 31, 2005; (d) shall not apply for or seek to again be employed by the City of Palm Springs after the EFFECTIVE DATE of this AGREMENT and thus waives any recall or return to work rights provided by any rule,ordinance,code,policy and/or collective bargaining agreement; and (e) shall 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, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which KEMP 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. KEMP expressly 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 Page 2 of 9 urv#26691vl KEMP's Initials iL limited to the Fair Employment and Housing Act, the Federal Fair Labor Standards Act, the Americans With Disabilities Act, and Title VE of the Civil Rights Act of 1964. 4. Specific Acknowledgment of Waiver of Claims under ADFA and QWBPA 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 Star. 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, KEMP acknowledges that he knowingly and voluntarily, for just compensation in addition to anything of value to which KEMP was already entitled, waives and releases any rights he may have under the ADEA and/or OWBPA. KEMP 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 KEMP; (b) KEMP 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; (c) KEMP 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) KEMP has been advised by this writing that he should consult with an attorney prior to executing this AGREEMENT; (f) KEMP 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) KEMP shall have seven (7) days following his execution of this AGREEMENT to revoke this AGREEMENT; Page 3 of 9 1".#2669Ivi KEMP's Initials j� (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 the AGREEMENT and ten(10) days have passed since KEMP's execution ("EFFECTIVE DATE"). 5. UNKNOWN CLAIMS In relation to the release provisions of Paragraphs 3 and 4 above, KEMP understands that California Civil Code section 1542 reads as follows: "General Release--Claims Extinguished" "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." KEMP hereby waives the protection of California Civil Code section 1542. G. WAIVER OF ADDITIONAL CLAIMS KEMP 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 attomey(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. Page 4 of 9 Irv.#26691vl KEMP's Initials 7.2. No Fraud in Tndncement: 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 Investigation: 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 Auto. 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. 7.5. Mistake Waived: In entering into this AGREEMENT, each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this AGREEMENT was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this AGREEMENT. This AGREEMENT is intended to be, and is, final and binding between the parties, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever. 7.6. Later_ Dim: The parties are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties that KEMP fully, finally and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against the CITY. In furtherance of such intention, the releases given here shall be, and remain, in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. Page 5 of 9 Irv.#26691vl KEMP's Initials �2y/✓!� 7.7. nvmershin of Claims: KEMP represents and warrants as a material term of this AGREEMENT that KEMP 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, KEMP further warrants and represents that none of the CLAIMS released by KEMP thereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity. 7.8. Indemnification: KEMP agrees to indemnify and hold harmless the CITY and its employees and agents, from, and against, any and all claims, damages, or liabilities sustained by them as a direct result of the violation or breach of the covenants,warranties, and representations undertaken pursuant to the provisions of this AGREEMENT. 7.9. Future Cooperation: The parties will execute all such fiirther 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 I.aw: 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. Jointer: 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. Page 6 of 9 Im92669M KEMP's Initials� % 8.6. S .vex rahili : In the event that any term, covenant, condition, provision or agreement contained in this AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such tern, 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 terns of this AGREEMENT, nor do they in any way modify the terms of this AGREEMENT. 8.8. Counterpart 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. As to KEMP: Michael T. Kemp [Add Street Address] [Add City, State, Zip] As to the CITY: City of Palm Springs And To David J. Aleshire, Esq. Post Office Box 2743 Burke, Williams & Sorensen LLP Palm Springs, California 92263 18301 Von Karman, Suite 1050 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 T. KEMP By: � '✓mLsr / ��/ Michael T. Kemp Page 7 of 9 Im42669M KEMP's Initials CITY OF PALM SPRINGS, CALIFORNIA City Clerk City Manager CITY ATTORNEY'S OFFICE Coffin J. T er,Esq. Deputy City Attorney Page 8 of 9 Irv.#2669IvI KEMP's Initials Approved As To Form And Content: MANAGEMENT ASSOCIATION OF PALM SPRINGS Dated: Mike Powell Labor Representative for Michael T.Kemp Page 9 of 9 irv.#26691v1 KEMP's Initials 1�i1 i Approved As To Form And Content: MANAGEMENT ASSOCIATION OF PALM SPRINGS Mike Powell Labor Representative for Michael T. Kemp Page 9 of 9 Imo.#26691vl KEMP's Initials MINUTE ORDER NO. RATIFYING CLOSED SESSION APPROVAL OF OCTOBER 30, 2002, TO APPROVE A SETTLEMENT AGREEMENT WITH MIKE KEMP. I HEREBY CERTIFY that this Minute Order, ratifying dosed session approval of October 30, 2002, to approve a settlement agreement with Mike Kemp,was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 20th day of November 2002. PATRICIA A. SANDERS City Clerk A !