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CONTRACT PERM - 6294 Other CLOSEDAgreement No. 6294 SEPARATION AND RELEASE AGREEMENT 1. PARTIES This Separation, Severance and General Release Agreement ("AGREEMENT") is made and executed as of the last date set forth on the execution page of this Agreement, by and between Scott Mitnick ("EMPLOYEE") and the CITY OF El Segundo ("CITY"). 2. RECITALS 2.1 EMPLOYEE commenced employment with the CITY as City EMPLOYEE on or about July 1, 2019, pursuant to that EMPLOYMENT AGREEMENT entered into between the parties on or about June 18, 2019. 2.2 This AGREEMENT is made to amicably resolve all matters between EMPLOYEE and the CITY regarding EMPLOYEE's employment and the cessation of said employment. 2.3 The parties understand and agree that a material purpose of this AGREEMENT is to resolve any disputes and CLAIMS arising from or relating to EMPLOYEE's employment with CITY, if any, and provide for a separation payment for EMPLOYEE. 3. CONSIDERATION 3.1 In exchange for EMPLOYEE's execution, faithful performance and compliance with this AGREEMENT, including without limitation the granting of the releases set forth herein, and in full satisfaction and settlement of EMPLOYEE's CLAIMS, if any, the CITY shall pay EMPLOYEE the sum of $130,000 and to pay for City health, dental, vision and other group insurance to the extent permitted by the applicable insurance plans and benefit programs for a period of six-month following the EFFECTIVE DATE of this AGREEMENT("SEVERANCE PAYMENT"). 3.2 EMPLOYEE shall be allowed to keep the cell phone that he used while employed by the City. CITY copied the information from the cell phone subsequent to EMPLOYEE's separation from the City. EMPLOYEE has returned the laptop that he used while employed by the CITY to the CITY and the CITY is providing EMPLOYEE with a payment in the amount of $1,500. The CITY shall provide a written, and if possible, an electronic version of the EMPLOYEE's contact list information to EMPLOYEE from the above referenced cell phone within 5 days of execution of the Agreement by all parties. EMPLOYEE represents and warrants that EMPLOYEE did not intentionally: delete any documents that would Agreement No. 6294 be considered Public Records of the CITY under Government Code Section 6250 et seq.: copy or retain or cause or allow others to copy and/or retain documents that are considered confidential records of the CITY, including without limitation confidential personnel records of the City or attorney -client privileged records for which the CITY was considered the holder of the privilege; from these electronic devices or any other devices or means. 3.3 CITY shall pay EMPLOYEE for unused vacation and sick leave (353.27 hours) and vacation time (79.17 hours) in accordance with the provisions of the EMPLOYMENT AGREEMENT. 3.4 Respecting the SEVERANCE PAYMENT referenced in paragraph 3.1 above, laptop payment referenced in paragraph 3.2 above, and the sick leave time payment referenced in Section 3.3 above, EMPLOYEE understands and agrees that the EMPLOYEE's portion of any federal, state or local taxes, if any, that may be owed or payable on the sums caused to be paid hereunder by the CITY are the sole and exclusive responsibility of EMPLOYEE and will be deducted from such payments to the extent required by law. The CITY shall make these three payments within 15 days of the Effective Date to EMPLOYEE which shall be in the form of a check or checks made payable to Scott Mitnick. 3.5 EMPLOYEE and the CITY shall otherwise each bear their own attorney fees and costs incurred in connection with any disputes and this AGREEMENT. 3.6 CITY and EMPLOYEE agree that as of the EFFECTIVE DATE EMPLOYEE shall be deemed to have resigned on February 2, 2022. 3.7 Except as set forth in this Paragraph 3, the parties agree that no other monies or benefits are due, owing or unpaid by reason of EMPLOYEE's employment or association with CITY and that no other monies or benefits will be paid or maintained by CITY to/for EMPLOYEE, in EMPLOYEE's name, or on EMPLOYEE's behalf. EMPLOYEE expressly agrees that the SEVERANCE PAYMENT and other payments described in Paragraph 3 supersedes and is in substitution for any payments or benefits under any employment agreement(s), business agreement(s) or arrangement(s), oral or written promises, or severance policy or plan respecting or regarding his employment or association with CITY. 4. SPECIFIC ACKNOWLEDGEMENT OF WAIVER OF CLAIMS UNDER ADEA AND OWBPA The Age Discrimination in Employment Act of 1967, (29 U.S.C. Section 626 et. seq;" ADEX) 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. sections 626, et. seq., Pub. L. 101- 433, 104 Stat. Agreement No. 6294 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, EMPLOYEE acknowledges that he knowingly and voluntarily, for just compensation, waives and releases any rights he may have under the ADEA and/ or OWBPA. EMPLOYEE further acknowledges that he has been advised and understands, pursuant to the provisions of the ADEA and/or OWBPA, that: 4.1 This waiver/ release is written in a manner understood by EMPLOYEE; 4.2 EMPLOYEE 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; 4.3 EMPLOYEE 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; 4.4 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, 4.5 EMPLOYEE has been advised by this writing that he should consult with an attorney prior to executing this AGREEMENT, 4.6 EMPLOYEE has discussed, or had the opportunity to discuss, 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; 4.7 EMPLOYEE has seven (7) days following his execution of this AGREEMENT to revoke the AGREEMENT; 4.8 Notice of revocation within the seven ( 7) day revocation period must be provided, in writing, to the CITY pursuant to this paragraph and must state, "I hereby revoke my acceptance of our' Separation and Release Agreement," and 4.9 This AGREEMENT shall not be effective until all parties have signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution of the AGREEMENT (the "EFFECTIVE DATE"). Agreement No. 6294 5. RELEASE 5.1 In exchange for the SEVERANCE PAYMENT, representations and covenants made herein, and except only as to such rights or claims as may be created by this AGREEMENT, EMPLOYEE hereby, and for his heirs, representatives, successors, and assigns, releases, acquits, and forever discharges the CITY, and all of its agents, officers, current and former elected and appointed officials, current and former 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 EMPLOYEE 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 ( including without limitation any circumstance(s) giving rise to liability for workers compensation benefits) or was in effect at any time from the beginning of time up to and including the EFFECTIVE DATE of this AGREEMENT ("CLAIMS"), without regard to whether such CLAIMS arise under the federal, state or local constitutions, statutes, rules, ordinances or regulations, workers compensation statutes or the common law. EMPLOYEE expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically include, but are not limited to, claims related to the DISPUTES, his employment with the CITY and its cessation, any claims for wages, overtime or benefits, any alleged breach of any duty, any alleged employment discrimination, harassment, retaliation or unlawful discriminatory act, any alleged breach of any express or implied employment contract, breach of any duty arising out of contract, statute, regulation, ordinance or tort, constructive discharge, wrongful termination or constructive discharge in violation of public policy, 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 or respecting wrongful termination, breach of employment contract, or employment discrimination, employee injury, death, wrongful hiring, harassment or retaliation based upon sex, race, age, color, religion, handicap or disability, national origin or any other protected category or characteristic, including but not limited to the Federal Fair Labor Standards Act, the California Fair Employment and Housing 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, regulation, ordinance or decisional law. 5.2 Additionally, the CITY hereby agrees not to initiate, or proceed with any actions, causes of action, or claims, etc., that could be or that have been asserted against EMPLOYEE arising out of EMPLOYEE's employment with the CITY, in any forum, whatsoever. To the extent that any such actions, causes of action, or claims, etc., are, or become pending in any forum whatsoever, the CITY agrees Agreement No. 6294 to execute all documents necessary for the withdrawal of such actions, causes of action, claims, with prejudice, forthwith. 6. UNKNOWN CLAIMS 6.1 EMPLOYEE on the one hand, and the CITY, on the other hand, each hereby waive and release any rights which the other and its successors, heirs, executives, administrators, may have directly or indirectly, if any, jointly or severally, directly or indirectly, under the provisions of California Civil Code section 1542, and any similar state or federal statute, which reads in sum, substance or substantial part as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY 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 WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. A general release 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 parry. 6.2 EMPLOYEE and the CITY acknowledge that the facts with respect to which each gives this GENERAL RELEASE may turn out to be different from the facts they now believe to be true. EMPLOYEE and the CITY hereby assume the risk of the facts turning out to be different, and agree that this AGREEMENT shall in all respects be effective and not subject to termination or rescission because of any such difference in facts. 7. WAIVER OF ADDITIONAL CLAIMS EMPLOYEE and the CITY hereby waive any provisions of state or federal law that might require a more detailed specification of the claims being released pursuant hereto. 8. REPRESENTATIONS AND WARRANTIES Each of the parties to this AGREEMENT represent and warrant and agree with each other party as follows: 8.1 No Other Claims: EMPLOYEE and the CITY hereby represent and warrant that neither EMPLOYEE nor the CITY has filed, nor will they file in the future, any complaint, charge, claim, legal action, or proceeding arising out of EMPLOYEE's employment with the CITY, the DISPUTES or the CLAIMS released hereby or in Agreement No. 6294 any way related to his employment with the CITY or separation therefrom with any court, agency, board, hearing officer or tribunal against the CITY or any of its agents, officers, current and former elected or appointed officials, current and former employees, representatives, insurers, attorneys, and all persons acting by, through, under, or in concert with any of them. EMPLOYEE retains his right to request indemnification from the City pursuant to California Government Code Section 825 et seq. with respect to any action brought against EMPLOYEE in his capacity as an employee. 8.2 Advice of Counsel: Each party has received, or has had the opportunity to receive, independent legal advice from their respective attorney(s) with respect to the advisability of making the settlement and releases provided herein, with respect to the advisability of executing this AGREEMENT, and with respect to the meaning of California Civil Code section 1542. 8.3 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. 8.4 Independent Investigation: Each party to this AGREEMENT has made such investigation of the facts pertaining to this severance and settlement and this AGREEMENT and all the mailers pertaining hereto as it deems necessary. 8.5 Comprehension and Authority: Each party or responsible officer thereof has read this AGREEMENT and understands the contents hereof. Any of the officers executing this AGREEMENT on behalf of the CITY are empowered to do so and thereby bind the entity. 8.6 Mistake Waived: In entering into this AGREEMENT and the severance and settlement provided for herein, 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 rescind or set aside the 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. 8.7 Later Discovery: EMPLOYEE and the CITY are aware that they may hereafter discover claims or facts in addition to or different from those they now know or Agreement No. 6294 believe to be true with respect to the matters related herein. Nevertheless, it is both parties intention to fully, finally and forever settle and release all such matters, and all claims relative hereto, which do now exist, may exist or have previously existed between both parties. 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. 8.8 Ownership of Claims: EMPLOYEE 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, EMPLOYEE further represents and warrants that none of the CLAIMS released by his hereunder will in the future be assigned, conveyed, or transferred in any fashion to any other person and/ or entity. 8.9 Future Cooperation: The parties will execute all such further and additional documents as shall be reasonable or necessary to carry out the provisions of this AGREEMENT. 9. MISCELLANEOUS 9.1 No Admission: Nothing contained herein shall be construed as an admission by the parties of any liability of any kind. The parties each deny any liability in connection with any claim or wrongdoing. Each party also intends hereby solely to amicably resolve all matters between the parties. 9.2 Governing Law: This AGREEMENT 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. The venue for any dispute arising out of or relating to this AGREEMENT shall be the Los Angeles Superior Court. 9.3 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. 9.4 Continuing Benefit: This AGREEMENT is binding upon and shall inure to the benefit of the parties hereto, their respective agents, employees, representatives, officers, and officials. 9.5 Joint 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. Agreement No. 6294 9.6 Severability: 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. 9.7 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 terms of this AGREEMENT. 9.8 Counterparts: This AGREEMENT may be executed in counterparts, and by facsimile 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. 9.9 Executed Copy: All parties shall receive a fully executed copy of this AGREEMENT. 9. 10 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, overnight delivery by Fed Ex, UPS or other reliable overnight service, 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, on the date that delivery was made by overnight mail, or three consecutive calendar days following deposit of the same in the United States mail. As to EMPLOYEE: Scot Mitnick 2772 Westham Circle Thousand Oaks, California 91362 Agreement No. 6294 As to the CITY: Attn: City Clerk City of El Segundo 350 Main Street El Segundo, California 90245 WHEREFORE, the parties hereto have read all of the foregoing, understand the same, and agree to all of the provisions contained herein. DATED: 6 -Z CITY OF El SEGUNDO By: Drew Boyl ayor EMPLOYEE dull � d Scott Mitnick ATTEST: Tracy aver, City Clerk APP D AS T FO _.... ram/ Mark H nsley, City Attorney