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CONTRACT PERM - 6297 Other CLOSEDAgreement No. 6297 VOLUNTARY EARLY RETIREMENT AGREEMENT AND GENERAL RELEASE AND WAIVER This Voluntary Early Retirement Agreement and General Release and Waiver ("Agreement") is made and ent . into by an between the City of El Segundo (the "City" or "Employer"), and ,, �t ("Employee"). Employee and the City may be referred to in this Agreement individually as "Party" or collectively as "the Parties." This Agreement relates to the following: A. Following direction of the City Council on November 3, 2020, the City has implemented a Voluntary Early Retirement Incentive Program (VERIP) to certain eligible City employees as part of the City's efforts to address potential budgetary constraints caused by the COVID-19 public health crisis. B. VERIP provides a way for the City to maintain its commitment to its employees' health and financial security by incentivizing early retirement of eligible employees through the provision of certain benefits. I C. Employee began employment with rl e City on � 1 13 r , .............. and works in the position of tr 5emoS _- as of the date this Agreement is signed by Employee and submitted to the Human Resources Department. Notwithstanding the foregoing, this Agreement is not effective until the Effective Date set forth in Section 1 below. D. Employee has reviewed the terms of the VERIP set forth in this Agreement, and desires to participate in the VERIP and voluntarily separate from employment with the City. Now, therefore, the Parties agree as follows: TERMS AND CONDITIONS 1. Effective Date. This Agreement shall be effective on the eighth day after the Agreement is executed by the employee, (the "Effective Date") and if the employee does not exercise his/her right to revoke this agreement pursuant to Section 8. i. . 2. VERIP. 2.1 Eligibility. Employee meets the eligibility criteria for participation in VERIP as follows: (1) full-time employeesnot employed in any of the following job classifications: Fire Engineer; Battalion Chief; Fire Captain, Firefighter - Paramedic; Firefighter; Director of Public Works; Director of Community Services; City Manager; Director of Finance; Director of Development Services; Fire Chief; Police Chief; Director of Human Resources; Deputy City Manager; Director of Information Systems; Police Captain; Police Lieutenant; Police Officer; and Police Sergeant; (2) have been employed by the City of El Segundo continuously for a minimum of three years prior to November 10, 2020; and eligible for service retirement with Ca1PERS. Page 1 of 9 Agreement No. 6297 2.2 Employee Election. Employee made a timely election to participate in VERIP by submitting this signed Agreement no later than December 25, 2020. 3. Consideration. As consideration for this Agreement and subject to the conditions set forth in this Agreement, the City will provide and Employee agrees to the following: 3.1 Employee agrees to voluntarily and irrevocably resign Employee's employment with the City no later than December 31, 2020. Employee agrees to waive any right to appeal. litigate or otherwise challenge, in any forum whatsoever, the Employee's separation from employment. Employee further agrees to retire with Ca1PERS with an effective retirement date no later than January 1, 2021. 3.2 The City agrees to provide Employee a lump sum payment in the gross amount of $25,000, less applicable withholdins. This one-time payment is not considered compensation earnable, special compensation, or pensionable compensationfor purposes of CalPERS. The payment will be included in the final paycheck issued to Employee by the City. 3.3 Employee acknowledges and agrees that the City has made no representations to Employee regarding the tax consequences of any amounts received by Employee pursuant to this Agreement. Employee agrees to pay federal, State, or local taxes, if any, which are required by law to be paid. Employee is solely responsible for all taxes, associated penalties or interest, if any, that Employee may owe for the lump sum payment described herein, and shall, jointly and severally, indemnify and hold harmless the City from any claims, fines, penalties, demands, deficiencies, levies, assessments, executions, judgements, or recoveries against the City for any amounts claimed due related to the monies paid pursuant to this Agreement, and for any costs, interest, expenses, fines, penalties, attorneys' fees or damages incurred or sustained by the City by reason of Employee's failure to pay such taxes. 3.5 Employee agrees that the consideration described in this section constitutes the entire consideration provided to Employee under this Agreement and that Employee will not seek, nor is Employee in any way entitled to, any further consideration for any claimed damages, costs, or attorneys' fees in connection with the matters encompassed in this Agreement, Employee's employment with the City, or Employee's resignation from the City. 4. Separation Terms; Reemployment. Until the Separation Date, Employee will maintain employment with the City and agrees to diligently perform Employee's regular job duties and assist with the orderly transition of Employee's job duties as directed by Employee's Department Head or designee. Page 2of9 Agreement No. 6297 5. Return of City Property. On or before separation, Employee shall return to the City all City property that Employee has in Employee's possession or control, including but not limited to computer equipment, mobile devices, identification badge, credit cards, keys, and files. Receipt by the City of all such City property prior to separation, is an express condition precedent to the City's obligations to provide Employee all VERIP benefits described in section 3 above. 6. Employee Representation Regarding Claims. Employee represents that, with the exception of any workers' compensation claims, Employee has not filed any complaint, grievance, or action against the City or any of its Councilmembers, Board or Commission members, officers, agents, directors, employees, volunteers, or representatives with any federal, State, or local agency, board, arbitrator, or court based on any matters arising out of Employee's hiring, retention, or compensation by the City, or based on any act or failure to act by the City affecting, involving, or relating to Employee and his/her employment with the City. Employee agrees that if Employee has any such pending claims with the City, then, with the exception of any workers' compensation claims, Employee's knowing and voluntary execution of this Agreement acts as an automatic withdrawal of such claims with prejudice. Nothing in this Agreement limits the Employee's ability to bring an administrative charge with the Equal Employment Opportunity Commission ("EEOC") or Department of Fair Employment and Housing ("DFEH"), but the Employee expressly waives and releases any right to recover any type of personal relief from the City, including monetary damages, in any administrative action or proceeding, whether state or federal, and whether brought by Employee or on Employee's behalf by an administrative agency, related in any way to the matters released herein. Furthermore, nothing in this Agreement prohibits the Employee from reporting possible violations of law or regulation to any government agency or entity, including but not limited to the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, the Department of Labor and/or the Department of Justice, or making other disclosures that are protected under the whistleblower provisions of law. The Employee does not need prior authorization of the City to make any such reports or disclosures and is not required to notify the City that he has made such reports or disclosures. 8. Release and Disposition of Claims. 8.1 Employee does hereby, and for Employee's heirs, legal representatives, agents, successors in interest and assigns, irrevocably and unconditionally release, acquit and forever discharge the City or any of its members of the City Council, officers, agents, deputies, representatives, servants, employees, successors, assigns, predecessors, divisions, branches or attorneys ("the Releasees")from any and all claims, actions, causes of action, rights, demands, Page 3 of 9 Agreement No. 6297 debts, obligations, damages or accountings of whatever nature (except workers' compensation claims), whether known or unknown, suspected or unsuspected, actual or potential, which Employee now has, owns or holds, or claims to have, own or hold in any way against the Releasees, at common law or under any statute, rule, regulation, order or law, whether federal, State, or local, or on any grounds whatsoever, with respect to any act, omission, event, matter, claim, damage, loss or injury arising out of Employee's employment with the City. Additionally, Employee expressly waives and relinquishes all claims (except workers' compensation claims) which Employee does not know of or suspect to exist in Employee's favor at the time of executing this release, even if knowledge of such claims would have materially affected Employee's decision to enter into this Agreement. 8.2 Employee understands and agrees that Employee is waiving any rights that Employee has, may have had, or may have to all grievances, disputes or claims (except workers' compensation claims) of every nature and kind, known or unknown, actual or potential, anticipated or not anticipated, suspected or unsuspected, existing and/or potentially existing against the Releaseees, as of the Effective Date, to pursue any and all remedies available to Employee under any employment -related cause of action against the City, including, without limitation, any claims for discrimination, harassment, or retaliation, claims under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), the California Family Rights Act (Gov. Code, § 12945.2), the Unruh and George Civil Rights Acts (Civ. Code, § 51 et seq.), all provisions of the California Labor Code and any wage orders or similar directives or authorities issued by any federal or state authority having enforcement powers, the Constitution of the United States, the Constitution of the State of California, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), the Equal Pay Act (29 U.S.C. § 206(d)), the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), the Family and Medical Leave Act (29 U.S.C. § 2601 et seq.), the Employment Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.), Sections 1981-88 of Title 42 of the United States Code (42 U.S.C. § 1981 et seq.), the American with Disabilities Act (42 U.S.C. § 12101 et seq.), claims of retaliation or whistle -blowing (including but not limited to California Labor Code section 1102.5 et seq. and Government Code section 12653), claims for breach of any type of contract, including written, oral or implied, breach of any covenant, promise or representation pertaining to Employee's employment or separation from employment, whether express or implied, and all other claims arising in contract, tort or equity or under any other statute, federal, state or local, up to the date of Employee's execution of this Agreement. 8.3 WAIVER OF RIGHTS OR CLAIMS PURSUANT TO TITLE 29 OF THE CODE OF THE LAWS OF THE UNITED STATES OF AMERICA AND CHAPTER 14, ENTITLED "AGE DISCRIMINATION IN Page 4of9 Agreement No. 6297 EMPLOYMENT." Employee specifically acknowledges that pursuant to 29 U.S.C. section 621 et seq., entitled "Age Discrimination in Employment," 1) it shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual's age; 2) to limit, segregate, or classify employees in anyway which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee, because of such individual's age; or 3) to reduce the wage rate of any employee in order to comply with said Chapter. Employee hereby acknowledges and agrees that this Agreement constitutes a knowing and voluntary waiver of any and all rights or claims that exist or that Employee has or may claim to have under the Age Discrimination in Employment Act ("ADEA") for acts or omissions up to the date s/he executes this Agreement. The Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C, section 626 et seq., 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, in exchange for the consideration stated in this Agreement, s/he is knowingly and voluntarily waiving and releasing any rights s/he may have under the ADEA and/or OWBPA. Employee further acknowledges that s/he has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: a. This Agreement is written in a manner understood by Employee; b. The consideration provided through this Agreement is the sole consideration s/he will receive from the Releasees; c. By entering into this Agreement, Employee will receive consideration s/he would not otherwise have received if s/he were not to enter into this Agreement; d. S/he has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement; e. Employee is aware of and has been advised by a representative or legal counsel of his/her own choosing of his/her rights under the ADEA and OWBPA, and the legal significance of his/her waiver of any possible claims s/he currently may have under the ADEA, OWBPA, or similar age discrimination laws; f. Employee has been provided a full and ample opportunity to study this Agreement, including a period of up to 45 calendar days within which to consider whether to sign this Agreement; Page 5 of 9 Agreement No. 6297 g. To the extent that Employee takes less than 45 calendar days to consider this Agreement prior to signing it, Employee acknowledges that s/he had sufficient time to consider this Agreement with legal counsel and that s/he expressly, voluntarily, and knowingly waives any additional time; h. 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; and, Employee is aware of his/her right to revoke this Agreement at any time within the seven (7) calendar day period following the date s/he signs the Agreement, and that the Agreement shall not become effective or enforceable until the seven calendar day revocation period expires. Employee must give written notice of revocation, which must be received by the City Human Resources Department, specifically Donna Peter, Lauren Daniels or Dana Hang, no later than the close of business on the seventh calendar day after Employee signs this Agreement. EMPLOYEE ACKNOWLEDGES BY HIS/HER SIGNATURE THAT S/HE FULLY UNDERSTANDS HIS/HER RIGHT TO DISCUSS THIS WAIVER WITH LEGAL COUNSEL, THAT S/HE HAS CAREFULLY READ AND FULLY UNDERSTANDS THE WAIVER, AND THAT S/HE IS VOLUNTARILY AGREEING TO WAIVE ANY CLAIMS S/HE HAS OR MAY HAVE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE OLDER WORKERS BENEFIT PROTECTION ACT, AND ANY OTHER LAWS PROHIBITING AGE DISCRIMINATION IN EMPLOYMENT ARISING FROM OR IN ANY WAY OR ATTRIBUTABLE TO HIS/HER EMPLOYMENT WITH THE CITY OR SEPARATION FROM EMPLOYMENT WITH THE CITY. 9. Waiver of Civil Code Section 1542. Employee further acknowledges that any and all rights granted to Employee under California Civil Code section 1542, or any other analogous federal or state law or regulation, are hereby expressly waived. Section 1542 of the California Civil Code reads as follows: SECTION 1542. CERTAIN CLAIMS AFFECTED BY GENERAL RELEASE. 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, Page 6 of 9 Agreement No. 6297 WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. Employee understands and acknowledges that the significance of this waiver of Civil Code section 1542 is that, even if Employee eventually suffers or discovers damages arising out of Employee's employment with the City, Employee is not permitted to snake any claim for those damages. Employee further acknowledges that Employee intends these consequences even as to claims that may exist as of the date of separation, but which Employee does not know exist, and which, if known, would materially affect Employee's decision to execute this release, regardless of whether Employee's lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. 10. No Assignment of Claims. Employee expressly warrants that Employee has not transferred to any other person or entity any of the rights or causes of action released in this Agreement. 11. No Admission of Liability. This Agreement and compliance with it does not and shall not in any way be construed as an admission of any wrongdoing, omission or liability on the part of either party. The City and Employee specifically disclaim any liability to, or wrongful acts against, each other. 12. Specific Performance. Each Party agrees to do all things and execute and deliver all instruments and documents necessary to fulfill and effect the provisions of this Agreement and to protect the respective rights of the Parties. 13. Waiver of Breach. No waiver by any Party of any breach of any term or provision of this Agreement shall be construed to be, nor be, a waiver of any preceding, concurrent or succeeding breach of the same, or any other term or provision hereof. No waiver will be binding unless in writing and signed by the Party to be charged or held bound. 14. Voluntary Act. Employee represents and agrees that Employee has carefully read and fully understands all the provisions of this Agreement. Employee represents that Employee has had the opportunity to receive independent legal advice from attorney(s) of Employee's choice with respect to review and advisability of executing this Agreement. Employee further represents and acknowledges that Employee has freely and voluntarily executed this Agreement after independent investigation and without any fraud, coercion, duress or undue influence, with a full understanding of the legal and binding effect of this Agreement. 15. Entire Agreement and Admissibility. The parties understand and agree that this Agreement constitutes the complete understanding between Employee and the City, and supersedes any and all prior agreements, promises, representations, or inducements, no matter their form, concerning the subject matter of this Agreement. No agreements, promises, representations, or inducements made subsequent to this Agreement will be binding unless recorded in a written Page 7 of 9 Agreement No. 6297 document, which specifically references this Agreement and is signed by the authorized representatives of the Parties. The Parties acknowledge that this Agreement may be used as evidence in any subsequent proceeding in which either Party alleges a breach of this Agreement or seeks to enforce its terms, provisions, or obligations, or as compelled by law. 16. Each Party to Bear Own Costs and Fees. Each Party shall bear its own costs, expenses, and attorney's fees incurred in connection with this Agreement. 17. Severability. If 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 will not be affected thereby, and any illegal, invalid, or unenforceable part, term, or provision will be deemed to not be a part of this Agreement. 18. Governing Law, Jurisdiction, and Venue. This Agreement is entered into and will be construed in accordance with the law of the State of California. Any action or motion to enforce the terms or conditions of this Agreement must be brought only in the County of Los Angeles Superior Court. The Parties irrevocably submit to the jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue. Nothing in this section prevents the Parties from mutually agreeing to alternative dispute resolution proceedings. 19. Interpretation. This Agreement has been jointly negotiated and drafted by the Parties. The language in this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties. Page 8 of 9 Agreement No. 6297 20. Counterparts. The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart's signature page of this Agreement, by email in portable document format (pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement. PLEASE READ THIS DOCUMENT CAREFULLY. THIS VOLUNTARY EARLY RETIREMENT AGREEMENT AND GENERAL RELEASE AND WAIVER INCLUDES A RELEASE BY EMPLOYEE OF ALL KNOWN AND UNKNOWN CLAIMS AS REGARDS THE SPECIFIC MATTERS AS SET FORTH HEREIN. Dated: Signed: Print Name: u Dated:.'` Signed: a w „ 1... ._ .. Scott Mitnick, City Manager City of El Segundo .:I g Dated: �+...._.._. ��.+"' Attest: Trac Weav, „ City' i Clerk City of El Segundo APPROVED AS TO FORM: Dated: �._..._. .._ Signed: ..,. Jjar—_. Mark Hensley, City A. o ey City of El Segundo Page 9 of 9