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CONTRACT 6645 Settlement AgreementAgreement No. 6645 N This SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafter referred to as "AGREE NT") is made and entered into by and among the City of El Segundo and its past and present officers, directors, governing body, employees, agents, predecessors, attorneys, divisions, affiliates, representatives, successors in interest and assigns and all persons acting by, through, under, or in concert with any of them (hereinafter collectively referred to as "City'l on the one hand, and Deena Lee (hereinafter "Lee" or "Employee") on the other, for the following purposes and with reference to the following facts. The City and Lee are also referred to herein as the "Parties:' RECITALS WHEREAS, Lee is the Fire Chief of the El Segundo Fire Department, WHEREAS, Lee is not currently the subject in any personnel investigation by the City or on its behalf; WHEREAS, the Parties wish to folly and finally settle and compromise all disputes and controversies existing between them arising out of Lee's employment with the City, whether known or unknown. NOW THEREFORE, in consideration of the foregoing recitals and of the mutual covenants set forth below, the Parties agree as follows: AGREEMENT 1. Recitals. The recitals set forth above are true and correct and are hereby incorporated by reference into this AGREEMENT. 2. No Precedent. This AGREEMENT is in no way intended, and shall in no way be construed, to restrict rights guaranteed to the City under local, state or federal law, rule, policy or agreement or to establish a precedent in this or any other matter, now or in the future. 3. No Admission of Liability. This AGREEMENT shall not in any way be construed to be an admission by the City or Lee of any unlawful or wrongful acts or other liability whatsoever against each other or against any other person. The City and Lee specifically disclaim any liability to, or wrongful acts against, each other or against any other person on the part of themselves, any related person or any related predecessor employer or its or their agents, representatives or successors in interest and assigns. 4. Settlement Terms. The Parties agree that, in consideration of Lee's promises as set forth in this AGREEMENT, the City and Lee will perform the following acts on or after the effective date of this AGREEMENT: 1 EL140\001110428001v3 Agreement No. 6645 a. The City will pay Lee a retroactive salary adjustment for compensation earned in the amount of $1,200.00 (one thousand two hundred dollars) per month for one (1) calendar year, for a total of $14,400.00. The entirety of the retroactive salary adjustment, $14,400.00, will be set forth on a personnel action form (PAF). The payment will be made through the City's payroll, with all applicable withholdings withheld, within 15 days of the Effective Date. The retroactive salary adjustment is for a period of time where Lee continuously worked in the position of Fire Chief and performed the duties for the position of Fire Chief. b. If the Council authorizes execution of this Agreement, it will be fully executed by both parties on or before April 18, 2023, and so long as Lee does not rescind this Agreement as set forth in Section 6.g., it will become effective on April 26, 2023, The PAF will be reported to Ca1PERS on the same day, which be the Effective Date. Chief Lee will retire from the City on April 27, 2023. Lee's separation and retirement shall not be contingent upon any determination by CalPERS and/or any federal or state tax authority. If Lee does not retire from the City by April 27, 2023, the PAF shall be rescinded and the City shall have no obligation to pay the $14,400 salary adjustment or the $100,000 payment referenced in Section 4.b.but the remainder of the Agreement shall remain in effect, including without limitation the waivers and releases set forth in Sections 5, 6 and 7. b. The City will also pay Lee an additional sum of $100,000.00 (one hundred thousand dollars). The additional sum will also be paid through the City's payroll, with all applicable withholdings withheld, within 30 days of the Effective Date. Z. Within three (3) working days of the Effective Date, the Parties shall submit this AGREEMENT to CalPERS and in good faith take all necessary steps to obtain a deten dnation as to whether the retroactive payments described in Paragraph 4.a., are reportable to CAPERS as compensation earnable for the purposes of inclusion in pension benefits. In the event CalPERS finds that the payments do not meet the definition of compensation earnable, excludes any portion of the payments, now or in the fixture, Lee's only remedy will be to challenge Ca1PERS' action through available administrative and judicial procedures against CalPERS alone. The City will have no obligation or duty to reimburse or indemnify Lee for lost retirement benefits or any other damages she may have or will suffer as a result of or in any way related to her not obtaining or receiving any or all CalPERS benefits she may claim she was entitled to as a result of, or in any way related to, this AGREEMENT. The City will have no obligation to reimburse or indemnify Lee for any costs associated with pursuing administrative and judicial remedies against CalPERS, if any. It is agreed and acknowledged by the Parties that in 2 Agreement No. 6645 making this AGREEMENT, Lee will hold the City, its elected officials, officers, employees, agents, attorneys and assigns harmless in the event CAPERS or any other person or entity in any way challenges this AGREEMENT, including but not limited to, challenges to Lee's entitlement to Ca1PERS' benefits and/or recovery of retirement benefits already paid pursuant to or related to this AGREEMENT. Lee shall indemnify and defend the City for the payment of any employee and employer contributions to Ca1PERS or any payments related to Lee's retirement benefits pursuant to or related to this AGREEMENT, as well as for the payment of any administrative or other penalties and interest on such contributions, which would otherwise be the responsibility of the City. d. Lee acknowledges and agrees that the City has made no representations about the tax consequences of any amounts received by her under this AGREEMENT. Lee agrees to pay federal, state, or local taxes, if any, required by law to be paid with respect to this settlement exclusive of the employer's share of payroll taxes. Lee further agrees to indemnify, and hold the City harmless from any claims, demands, deficiencies, levies, assessments, executions, judgments, or recoveries by any governmental entity against the City for any amounts claimed due from Lee related to the monies paid on account of this AGREEMENT and for any costs, interest, expenses, fines, penalties, attorneys' fees, or damages incurred or sustained by the City by reason of Lee's failure to pay such taxes. e. Upon retirement from the City, Lee will receive all benefits she is entitled to receive under her service retirement which include, but are not limited to, all benefits stated in the City's Resolution No. 5350, including contributions to Lee's health care benefit premium, City's Administrative Code, Lee's Offer Letter dated October 11, 2021, a cash out of all Lee's accrued sick leave at an amount equal to One Hundred Percent (100%) of the value of such sick leave or, in Chief Lee's discretion and to the extent permitted by Ca1PERS used to purchase service credit time from Ca1PERS; and a cash out of all Lee's accrued vacation time at an amount equal to One Hundred Percent (100%) of the value of such vacation time, less the amount that Lee can legally contribute to her Internal Revenue Service 457 :retirement plan administered by the City. 5. Scope of Release of Claims and Potential Claims. Lee represents that she has not filed any lawsuits, complaints, claims, applications, or charges against City or any related person or employer or against any of its or their past or present officers, directors, governing bodies, employees, agents, predecessors, attorneys, divisions, affiliates, representatives, successors in interest and assigns and/or all persons acting by, through, under, or in concert with any of them, with any state or federal court, or local, state or federal agency; or administrative or quasi -administrative tribunal or person, based on or related to Lee's employment with the City, 3 Agreement No. 6645 with the exception of any claims Lee may have under the California Workers' Compensation Act. Lee specifically agrees that, in exchange for the consideration provided herein, she shall not in the future file, participate in, instigate, or encourage the filing of any lawsuits, complaints, charges, or any other proceedings in any state or federal court or before any local, state or federal agency, administrative tribunal, quasi -administrative tribunal or person, claims that City has violated any local, state or federal laws, statutes, ordinances, or regulations, or claiming the City has engaged in any tortious, other State, or other Federal violations in connection with her employment with the City up through the effective date of this AGREEMENT. Lee warrants that she has no lawsuits, complaints, charges, or claims pending against City, but in the event she does she agrees that, immediately upon executing this AGREEMENT, she will withdraw in writing and cause to be dismissed with prejudice (with the exception of any claims she may have under the California Workers' Compensation Act), and any and all lawsuits, complaints, charges, or claims against City regardless of whether they are specifically referred to herein. In addition to the various general releases of liability and agreements to dismiss and/or forego any lawsuits, complaints, charges, or claims against the City, Lee understands and agrees that she is wing any rights she has, may have had, or may have, to pursue any and all remedies available to her under any employment -dated cause of action based on or related to Lee's employment with the City, with the exception of any claims Lee may have under the California Workers' Compensation Act, up through the effective date of this AGREEMENT. The employment -based claims Lee is releasing include, but are not limited to, any claims for discrimination, harassment, and/or retaliation, claims under the Ralph M. Brown Act (Gov. Code, §§ 54950, et seq.), the 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 Public Safety Officers Procedural Bill of Rights Act (Gov. Code §§ 3300 et seq.), the Age Discrimination in Employment Act (29 U.S.C. § 621, 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 (48 U.S.C. § 1981, et seq.), the Americans with Disabilities Act (42 U.S.C. § 12101, et seq.), claims of retaliation or whistle - blowing (including but not limited to California Labor Code § 1102.5, et seq. and Government Code § 12653), claims for breach of any type of contract (including any Memorandum of Understanding between a labor organization and the City), including written, oral, or implied, breach of any covenant, whether expressed or implied, and all other claims arising in contract, tort, or equity or under any other statute, federal, state, or local statute arising prior to the date of 4 Agreement No. 6645 execution of this AGREEMENT, all of which are waived. It is specifically acknowledged by the Parties to this AGREEMENT that the provisions of this AGREEMENT are confined to the Parties only and are intended to definitely resolve all disputes between the City and Lee and between Lee and any and all present or former City employees based on or related to the Lee's employment up through the effective date of this AGREEMENT, with the exception of any claims Lee may have under the California Workers' Compensation Act, and has no evidentiary impact on administrative/civil. proceedings that may be brought by the City against present or former City employees. This AGREEMENT does not limit Lee's ability to bring an administrative charge with an administrative agency, but Lee expressly waives and releases any right to recover any type of personal relief from the City, including monetary damages or reinstatement, in any administrative action or proceeding, whether state or federal, and whether brought by Lee or on Lee's behalf by an administrative agency, related in any way to the matters released herein. Furthermore, nothing in this AGREEMENT prohibits Lee 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 CaliforniaDepartment of Fair Employment and Housing, the Department of Labor and/or the Department of Justice, or maldng other disclosures that are protected under the whistleblower provisions of law. Lee does not need prior authorization of the City to make any such reports or disclosures and is not required to notify the City that she has made such reports or disclosures. Nothing in this AGREEMENT is intended to waive, determine, or affect the rights of either party in relation to matters within the jurisdiction of the Workers Compensation Appeals Board. 6. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER AREA AND OWBPA. The Age Discrimination in Employment Act of 1967 C ADEA"; 29 U.S.C. §§ 621-634) 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 ("O PA"; 29 U.S.C. §§ 626, et seq.) 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, Lee acknowledges that, in exchange for consideration stated herein, she knowingly and voluntarily waives and releases any rights that she may have under the ADEA and/or OWBPA based on or related to Lee's employment with the City through the effective date of this AGREEMENT, with the exception of any claims Lee may have under the California Workers' Compensation Act. Lee further acknowledges that she has been advised and understands, pursuant to the provisions of the ADEA and OWBPA, that: a. This waiver/release is written in a manner that is understood by Lee; Agreement No. 6645 b. Lee is aware of, and has been advised by a representative or legal counsel of her own choosing, of her rights under the ADEA and OWBPA and the legal significance of her waiver of any possible claims she may have under the ADEA, OWBPA, or similar age discrimination laws. C. Lee 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 she may have under the ADEA, the OWBPA, or similar age discrimination laws, but she may, in the exercise of her own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty-one (21) day period, in which case Lee expressly waives this twenty-one (21) day review period. d. The waivers and releases set forth in this AGREEMENT shall not apply to any rights or claims that may arise after the effective date of this AGREEMENT. e. Lee has had an opportunity to discuss this waiver and release with, and to be advised with respect thereto, by an attorney of her choice, and she does not need any additional time within which to review and consider this AGREEMENT. f. Lee acknowledges and agreed that this AGREEMENT provides her with consideration she would not receive were she not to sign this AGREEMENT and allow it to become binding on him. g. Lee will have seven (7) non-waivable calendar days following the date of her execution of this AGREEMENT to revoke it. If Lee determines to revoke the AGREEMENT, she must give express and actual written notice of revocation to the City not later than seven (7) calendar days after the date she executes this AGREEMENT. Such notice of revocation shall be effective only if and when received via electronic mail by the City Attorney before 5:00p.m. Pacific Standard Time on the seventh (7') calendar day after Lee signs this AGREEMENT, LEE ACKNOWLEDGES BY HER SIGNATURE THAT SHE FULLY UNDERSTANDS HER RIGHT TO DISCUSS THIS WAIVER WITH LEGAL COUNSEL, THAT SHE HAS CAREFULLY READ AND FULLY UNDERSTANDS THE WAIVER, AND THAT SHE IS VOLUNTARILY AGREEING TO WAIVE ANY CLAIMS THAT SHE 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 RELATED OR ATTRIBUTABLE TO THE PARTIES' ALLEGATIONS OR CLAIMS. Agreement No. 6645 7. Release of UnImown Claims. For the purpose of implementing a full and complete release and discharge of the City, Lee expressly acknowledges that this AGREEMENT is also intended to include in its effect, without limitation, all claims which Lee does not know of or expect to exist in her favor at the time of the execution hereof based on or related to her employment with the City through the effective date of this AGREEMENT with the exception of any claims Lee may have under the California Workers' Compensation Act and Lee agrees that this AGREEMENT contemplates the extinguishment of any such claim or claims. For and in consideration of the commitments and representations contained herein, and without waiving its rights against Lee for such, the City for itself and on behalf of its legal and other representatives, agents, claimants, beneficiaries, successors, and assigns, hereby fully and expressly irrevocably and absolutely releases and forever discharges Lee, and as applicable, her respective legal and other representatives, agents, claimants, beneficiaries, successors and assigns of and from any and all claims, charges, demands, actions at law or in equity, suits, grievances, or other proceedings, judicial, administrative or otherwise, debts, attorney's fees, expert witness fees, costs, damages, expenses, rights to contribution, and remedies of any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, which may exist at the time of execution of this Agreement, and waives any claim to monetary damages that may arise therefrom,. In addition, Lee and the City expressly waive and relinquish all rights and benefits afforded by California Civil Code section 1542, with the exception of any claims Lee may have under the California Workers' Compensation Act, and do so understand and acknowledge the significance and consequences of such specific waiver of said provisions of law. Civil Code section 1542 states as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT TBE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TEVIE OF EXECUTING THE RELEASE AND THAT,, IF KNOWN BY 111M OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. 8. Each Party to Bear Own Fees and Costs. Each party shall bear its/her own costs, expenses and attorneys' fees incurred in connection with the administrative: and/or legal proceedings resulting in this AGREEMENT, or in connection with any other claims made or investigated by either party against the other in any forum (civil, criminal, administrative or quasi -administrative), and each of the parties hereto expressly waives any claim for recovery of any such costs, expenses or attorneys' fees from the other party. Attorneys for all parties to this AGREEMENT do likewise expressly waive any claim for recovery of costs, expenses and/or attorney's fees from the party(ies) and/or from any source whatsoever. 7 Agreement No. 6645 9. Covenant to Effectuate Agreement. Each party hereto agrees to execute and deliver all instruments and documents necessary to fulfill and effect the provisions of this AGREEMENT. 10. No Other Terms. This AGREEMENT contains all of the terms and conditions agreed upon by the parties hereto regarding the subject matter of this AGREEMENT. Any prior agreements, promises, negotiations, or representations, either oral or written, relating to the subject matter of this AGREEMENT, not expressly set forth in this AGREEMENT, are of no force or effect. 11. Waiver of Terms of Agreement. 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 shall be binding unless in writing and signed by the party to be charged or held bound. 12. Interpretation. This AGREEMENT has been jointly negotiated and drafted by counsel for 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. The Parties also agree and understand that should any provision of this AGREEMENT be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms and provisions shall not be affected thereby and said illegal or invalid part, terms or provisions shall be deemed not to be part of this AGREEMENT. The Parties further agree that this AGREEMENT was negotiated and executed in the State of California and shall be interpreted under the procedural and substantive laws of California as existing as of the date of execution, without regard to principles of conflict of laws. 13. Consultation with Counsel Each party hereto represents and agrees that she or it has carefully read and fully understands all of the provisions of this AGREEMENT, and that she or .it is voluntarily, without any duress or undue influence on the part of or on behalf of any party, entering into this AGREEMENT. The Parties affirm that, prior to execution of this AGREEMENT, they have consulted with counsel of their choice concerning the terms and conditions set forth herein, and that they agree to the terms and conditions. 14. Execution of Agreement. This AGREEMENT may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy or facsimile transmission of the AGREEMENT, including signatures, shall be deemed to constitute sufficient evidence of the AGREEMENT having been executed. 15. Effective Date of Agreement. The date of the last signature placed hereon shall hereinafter be known as the "date of execution" of this AGREEMENT. The "effective date" of 8 Agreement No. 6645 this AGREEMENT shall be April 26, 2023, after all parties have signed the AGREEMENT and the seven (7) day revocation period specified in Paragraph 6-g, above, has expired. 16. Enforcement. The Parties agree that any and all disputes regarding this AGREEMENT shall be brought in the Superior Court of the State of California, Los Angeles County. In any action brought to enforce any provision of this AGREEMENT, each side shall bear their own costs and attorney's fees. PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE BY LEE OF ALL KNOWN OR KNOWN CLAIMS. IN WITNESS WHEREOF, the parties hereto have executed the SETTLEMENT AGREEMENT AND GENERAL RELEASE. Dated: '' Dated: .. _..._.. .. ............... _.... Darrell George, City Manager for City of El Segundo