CONTRACT 6590 Settlement AgreementAgreement No. 6590
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT ("Agreement") is made and entered into as
of this day of January, 2023 (the "Effective Date") by and among William Whalen, an
individual ("Employee"), and the CITY OF El Segundo, a California municipal corporation
("City"). The above parties will be referred to collectively as the "Settling Parties" and
each is referred to as a "Party" hereinafter.
RECITALS
This Agreement is made with reference to the following facts:
A. The City has offered an Exceptional Pay Program ("Program") through its
administrative code for its Executive Staff. The City had for numerous years reported
payments made under this Program to the California Public Employees Retirement System
("PERS") and PERS would include this calculation in the retirement payments/benefit
made to former employees of the City. PERS declined to include payments under the
Program to Employee in Employee's retirement benefit.
B. Employee received payments under the Program and Employee and City
made payments to PERS for purposes of covering some of the costs of including Program
payments in the Employee's retirement benefit.
C. Employee asserts that the City has an obligation to make Employee whole
with regard to the amount of retirement benefit the Employee would have received as if
PERS had continued to include payments made under the Program in the retirement benefit
received by the Employee. The City rejects this claim by the Employee. The Employee's
assertion and the City's rejection will hereinafter be referred to as the "Dispute."
NOW, THEREFORE, in consideration of the mutual covenants and agreements
described below, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Settling Parties hereby agree:
1. Obligations of City. Within 15 business days of the execution of this
Agreement, City will pay Employee City the sum of eighty thousand dollars ($80,000) (the
"Payment").
2. Obli ations of Employee. wee. Employee shall not further pursue the Dispute
with PERS or the City and assigns the City the right, if any, to receive a refund of any
payments that Employee made to PERS for purposes of enhancing Employee's retirement
benefit for payments Employee received under the Programs. Employee shall be
responsible for all federal, state and local tax obligations associated with receiving the
Payment. The City will issue Employee an IRS Form 1099 reflecting the amount of the
Payment.
3. Mutual Releases,.
Agreement No. 6590
A. Employee forever releases and discharges the City, and its
respective officers, elected or appointed officials, attorneys, agents,
representatives, directors, members, shareholders, employees, successors, and
assigns, and each of them (collectively the "City Parties"), who are each express
third party beneficiaries of this Agreement, from any and all past, present or
future claims, actions, losses, liabilities, causes of action, liens, demands, rights,
damages, costs, attorney's fees, interest, expenses, reimbursement and
compensation of any nature whatsoever (collectively, "Claims"), whether known
or unknown, disclosed or undisclosed, and whether or not anticipated, in any way
related to the Dispute.
B. City forever releases and discharges Employee and his
successors, and assigns, and each of them (collectively the "Employee Parties"),
who are each express third party beneficiaries of this Agreement, from the
Claims, whether known or unknown, disclosed or undisclosed, and whether or not
anticipated, in any way related to the Dispute.
C. Each of the Parties also waives any and all claims for the recovery
of any damages, costs, expenses or fees, including attorney fees associated with
the matters and Claims released herein.
D. In connection with the release of the Claims described in this
Agreement, each Party to this Agreement, and anyone acting by or through them:
(i) Acknowledges that he, she or it has been advised by legal
counsel and is familiar with the provisions of California Civil Code
section 1542, which provides:
"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
party.
and
(ii) Waives any and all rights that he, she or it may have under
the provisions of California Civil Code section 1542 as well as under any
other statute or common law principle of similar effect.
In the event that any waiver of the provisions of section 1542 of
the Civil Code provided for in this Agreement shall be judicially
determined to be invalid, voidable or unenforceable, for any reason, such
waiver to that extent shall be severable from the remaining provisions of
this Agreement, and the invalidity, voidability or unenforceability of the
Agreement No. 6590
waiver shall not affect the validity, effect, enforceability or interpretation
of the remaining provisions of this Agreement.
4. Covenant Not to Sue. The Settling Parties agree not to sue each other, or
in any way assist any other person or entity in suing one another, with respect to any
claim released under this Agreement. This Agreement may be pleaded as a full and
complete defense to, and may be used as the basis for an injunction against any dispute,
suit, or other proceeding that may be instituted, prosecuted, or attempted in breach of the
released contained herein. The Settling Parties hereby agree not sue each other over the
Dispute or the Claims.
5. Representations and Warranties, Each Party represents and warrants that
it has not heretofore assigned or transferred, or purported to assign or transfer, any of the
claims released pursuant to this Agreement to any other person not a party hereto, and
that it is fully entitled to compromise and settle same. Each Party agrees to inderrinify the
other against all costs, expenses, and judgments, including all attorneys' fees incurred, in
the event any third party asserts any of the claims released pursuant to this Agreement
based upon the assignment or transfer thereof to such third party.
6. Own Counsel. Each Party acknowledges that it has been represented by,
or had the opportunity to be represented by counsel of its own choice prior to executing
this Agreement.
7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which together will
constitute one and the same instrument. In addition, a facsimile or photocopy signed
copy of the Agreement or electronically signed copies of this Agreement utilizing
technology which conforms to the requirements in both Government Code Section 16.5
and 2 California Code of Regulations Section 22003 shall legally bind the parties to the
same extent as original documents.
8. Captions. The captions of paragraphs contained in this Agreement are for
reference only and are not to be construed in any way as a part of this Agreement.
9. Own Costs. As between themselves, the Settling Parties shall each bear
their own costs, expenses, and attorney's fees that have heretofore incurred in connection
with or arising out of the Dispute and/or the Claims.
10. Entire Agreement No Oral Modification. This Agreement represents the
entire agreement between the Settling Parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral and written agreements and
discussions. Each of the parties hereto covenants that it has not entered into this
Agreement as a result of any representation, agreement, inducement or coercion, except
to the extent of representations and/or agreements specifically set forth herein. Each
party hereto further covenants that the consideration recited herein is the only
consideration for entering into this Agreement, and that no promises or representations of
other or further consideration have been made by any person. Each party hereto further
Agreement No. 6590
represents and covenants that in executing this Agreement each party does so with
knowledge of any and all rights which it may have with respect to the provisions of this
Agreement; that it has carefully read and considered this Agreement and fully
understands its contents and the significance of its contents; that it is entering into this
Agreement of its own informed and free will and based upon its own judgment and that it
has obtained independent legal advice with respect to this Agreement. This Agreement
may be amended only by an agreement in writing and duly executed by all the Parties
hereto.
11. iatat�t. This Agreement is binding upon and inure to the benefit
of the parties hereto and to their respective employees, agents, heirs, representatives, and
related -party successors and related -party assigns.
12. Authority. Each of the Settling Parties warrants, represents, and agrees
that this Agreement has been duly approved, executed, and delivered and constitutes the
valid and binding obligation of each such party, and that the individual executing this
Agreement on behalf of such party has the authority to do so.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
CITY OF El Segundo,
a California Municipal Corporation
By: _ ....:.
Darrell George, City Maa�atea~
ATTEST:
By: ( - �&
Tracy 'e" �r, City Clerk
Approved as to form:
WILLIAM WHALEN, an individual
44 By: ..........
Name: _..��.... G f
Date: 3
By: ��oa um Vazquez, Asst. City Attorney for:
J. �u.
Ml.�rk D. Hensley, City Attorney Feb. 10, 2023