HomeMy WebLinkAbout04460 - GARY ELLERS SETTLEMENT AGR MO7032 Gary Ellers
• Settlement Agreement
AGREEMENT #4460
M07032, 3-20-02
AGREEMENT OF SETTLEMENT
AND GENE,RAT.RET,F,ASE
1. PARTIES
This Settlement Agreement and General Release ("AGREEMENT") is entered into by and
between GARY W. ELLERS ("ELLERS") and the CITY OF PALM SPRINGS ("CITY").
2. RFCTTALS
2.1. ELLERS has been employed as an electrician by the CITY since 1983.
2.2. Since November 12, 2001, ELLERS has not attended work due to his
incarceration on felony criminal charges and as a result of a criminal felony plea. After depletion of
ELLERS's general leave bank, ELLERS was deemed by the CITY to have been absent without
authorized leave. When ELLERS's absence without authorized leave exceeded three (3) days, he
was deemed to have automatically resigned from his employment with the CITY pursuant to
Personnel Rule 6.3.2. On or about January 15, 2002, the CITY, through its City Manager David
Ready,notified ELLERS of the automatic resignation.
2.3 On or about January 15, 2002, ELLERS, through his power of attorney and
sister Gaile Harms, filed a Grievance with the CITY regarding the January 15, 2002 resignation
("GRIEVANCE"). On or about March 1, 2002, the CITY conducted an informal hearing with
ELLERS to address his GRIEVANCE. The GRIEVANCE was denied.
2.4 ELLERS and the CITY mutually desire to resolve any and all disputes that
ELLERS may have against the CITY and its employees, including but not limited to, disputes
arising out of or related to ELLERS's employment with the CITY, and the GRIEVANCE.
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
ELLERS by the CITY and/or its employees, agents, and representatives existing at this time,
save and except as may be expressly set forth herein.
3. CONSMERATTON
3.1. In exchange for the releases set forth herein, the CITY shall provide
ELLERS with retirees health insurance benefits consistent with retirees health insurance benefits
provided to retirees who had been employed with the CITY for twenty (20) years. The retirees
health insurance benefits provided to ELLERS shall be in accordance with Article 4.LA of the
Memorandum of Understanding Between the Municipal Employee Relations Representative and the
Service Employees International Union Local 700.
Page 1 of 7[rv.N198690 y(�
' 6(eK
ELLERS's Initials, ,
oNICaINAL 1811)
14NDIOR AGREEMIEW
3.2. In exchange for the payment and representations made herein, ELLERS
hereby, and for his heirs, representatives, successors, and assigns, releases, acquits, and forever
discharges 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 ELLERS 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. ELLERS
expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically
include, but are not limited to, claims set forth or related to the allegations of the GRIEVANCE,
and any claims for wages, overtime or benefits, or Labor Code section 132a claims, Labor Code
section 4553 claims, any alleged breach of any duty, any alleged employment discrimination 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, and any and all rights or claims arising under California state labor and/or
employment codes, the Federal Fair Labor Standards Act, the Americans With Disabilities Act,
Title VII of the Civil Rights Act of 1964, and any other federal, state, or local human rights, civil
rights, or employment discrimination or employee rights statute, rule, or regulation.
4. Specific Acknowledgment of Waiver of Claims under AREA and QWBPA
The Age Discrimination in Employment Act of 1967 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 ("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,
ELLERS acknowledges that he knowingly and voluntarily, for just compensation in addition to
anything of value to which ELLERS was already entitled, waives and releases any rights he may
have under the ADEA and/or OWBPA. ELLERS 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 ELLERS;
1
Page 2 of 7
L M'' S
Irv.#198690 ELLERS's Initials (/
(b) ELLERS is aware of, and/or has been advised of, his rights under the
AREA 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) ELLERS 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) ELLERS has been advised by this writing that he should consult with an
attorney prior to executing this AGREEMENT;
(f) ELLERS 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) ELLERS has seven (7) days following his execution of this
AGREEMENT to revoke the AGREEMENT;
(h) Notice of revocation within the seven (7) day revocation period must be
provided, in writing, to the CITY pursuant to Paragraph 8.10 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 ELLERS's execution ("EFFECTIVE
DATE").
5. UNKNOWN CLAIMS
In relation to the release provisions of Paragraphs 3 and 4 above, ELLERS understands
that California Civil Code section 1542 reads as follows:
"Cieneral 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 laiown by hhn must have materially affected his
settlement with the debtor."
Page 3 of 7
Irv.#198690 ELLERS's Initials���
ELLERS hereby waives the protection of California Civil Code section 1542.
6. WAIVER OF ADDITIONAL CLAIMS
ELLERS hereby waives any provisions of state or federal law that aright require a more
detailed specification of the claims being released pursuant to the provisions of Paragraphs 3, 4, and
5 above.
7. REPRESENTATIONS AND WARRANTIFS
Each of the parties to this AGREEMENT represents and warrants to, and agrees with each
other party as follows:
7.1. Advice of Conn: Each party has received independent legal advice from
its attorney(s) with respect to the advisability of malting 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; 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 parry regarding any fact relied upon in entering
into this AGREEMENT, and neither party relies upon any statement, representation, oinission 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 Auhhoritu. Each party represents to the other that the party has the right to
enter into this AGREEMENT, and that it is not violating the tenns 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
Page 4 of 7
Irv.#19869v3 + 111 YG'
ELLERS s Initials ,, /��-�
so,bind the party on whose behalf this AGREEMENT has been signed.
7.5. Mistake Way: 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 r Discover : 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 ELLERS
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.
7.7. Ownership of Claims: ELLERS represents and warrants as a material term
of this AGREEMENT that he 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, ELLERS further warrants and represents that
none of the CLAIMS released by him thereunder will in the future be assigned, conveyed, or
transferred in any fashion to any other person and/or entity.
7.8. Tndemnff .ac tion: ELLERS 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 finther 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
Irv.#19869 Page 5 of 7
v3 e
ELLERS s Initials
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 Taw: 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. Fill Nte ation: 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. kint Drafting: 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. S .v ,rability: 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 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 terns 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
Page 6 of 7
Irv.#19869v3 ELLERS's Initials,,;��f
deposit of the same in the United States mail.
As to ELLERS:
Gary W. Ellers And to Gaile Harms
As on file in Human Resources As on file in Human Resources
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: City Manager 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: GARY W. LLERS
By-
Gary Ellers
CITY OF PALM SPRINGS, CALIFORNIA
City Manager`®
City Clerk
DATED: '4j Zzm O -z-, DATED:
1-0 FoRivi
rney
,Date
Page 7 of 7
n s ELLERS' Iitials�`r'/'r
Irv.#19869v3 ��