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CONTRACT 6724 Settlement AgreementAgreement No. 6724 SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafter referred to as "AGREEMENT") 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") on the one hand, and Charles Mallory (hereinafter "Mallory" or "Employee") on the other, for the following purposes and with reference to the following facts. The City and Mallory are also referred to herein as the "Parties." RECITALS WHEREAS, Mallory was employed as the Director of Information Technology of the City of El Segundo; WHEREAS, Mallory sent a pre -litigation demand to the City; WHEREAS, the Parties wish to fully and finally settle and compromise all disputes and controversies existing between them arising out of Mallory'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 Admission of Liability. This AGREEMENT shall not in any way be construed to be an admission by the City or Mallory of any unlawful or wrongful acts or other liability whatsoever against each other or against any other person. The City and Mallory 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 Mallory's promises as set forth in this AGREEMENT, the City and Mallory will perform the following acts on or after the effective date of this AGREEMENT: a. The City will pay Mallory a sum of $100,000.00 (one hundred thousand dollars) via wire transfer to the "The Bloom Firm client trust account for Charles Mallory" as damages for alleged personal injuries ("Settlement Proceeds"), and all attorney's fees and costs incurred on Mallory's behalf. This $100,000.00 sum shall be reported to the IRS on an IRS Form 1099 as required by law, and Mallory shall submit a Form W-9 to the City and wire information, through his counsel of 12116476.1 EL140-146 �1,I,0 .or�V C, PI! . tJnr, rlVz .0'A, W I!1L 11NCB .". Agreement No. 6724 record, as a condition precedent to receiving the Settlement Proceeds. The payment of the Settlement Proceeds shall be made within 5 business days of the effective date. b. Mallory acknowledges and agrees that the City has made no representations about the tax consequences of any amounts received by him under this AGREEMENT. Mallory 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. Mallory 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 Mallory 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 Mallory's failure to pay such taxes. 5. Scope of Release of Claims and Potential Claims. Mallory represents that he 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 Mallory's employment with the City, with the exception of any claims Mallory may have under the California Workers' Compensation Act. The Parties specifically agree that, in exchange for the consideration provided herein, they shall not in the future file 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, claiming that either Party has violated any local, state or federal laws, statutes, ordinances, or regulations, or claiming either Parry has engaged in any tortious, other State, or other Federal violations in connection with Mallory's employment with the City up through the effective date of this AGREEMENT. Mallory warrants that he has no lawsuits, complaints, charges, or claims pending against City, but in the event he does he agrees that, immediately upon executing this AGREEMENT, he will withdraw in writing and cause to be dismissed with prejudice (with the exception of any claims he 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, Mallory understands and agrees that he is waiving any rights he has, may have had, or may have, to pursue any and all remedies available to him under any employment -related cause of action based on or related to Mallory's employment with the City, with the exception of any claims Mallory may have under the California Workers' Compensation Act, up through the effective date of this AGREEMENT. 12116476.1 EL140-146 Agreement No. 6724 The employment -based claims Mallory 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 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 Mallory and between Mallory and any and all present or former City employees based on or related to the Mallory's employment up through the effective date of this AGREEMENT, with the exception of any claims Mallory 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 Mallory's ability to bring an administrative charge with an administrative agency, but Mallory 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 Mallory or on Mallory's behalf by an administrative agency, related in any way to the matters released herein. Furthermore, nothing in this AGREEMENT prohibits Mallory 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. Mallory 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. 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. 12116476.1 EL140-146 Agreement No. 6724 6. SPECIFIC ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA AND OWBPA. The Age Discrimination in Employment Act of 1967 ("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 ("OWBPA"; 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, Mallory acknowledges that, in exchange for consideration stated herein, he knowingly and voluntarily waives and releases any rights that he may have under the ADEA and/or OWBPA based on or related to Mallory's employment with the City through the effective date of this AGREEMENT, with the exception of any claims Mallory may have under the California Workers' Compensation Act. Mallory 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 that is understood by Mallory; b. Mallory is aware of, and has been advised by a representative or legal counsel of his own choosing, of his rights under the ADEA and OWBPA and the legal significance of his waiver of any possible claims he may have under the ADEA, OWBPA, or similar age discrimination laws. Mallory 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, or similar age discrimination laws, but he may, in the exercise of his own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty-one (21) day period, in which case Mallory 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. Mallory has had an opportunity to discuss this waiver and release with, and to be advised with respect thereto, by an attorney of his choice, and he does not need any additional time within which to review and consider this AGREEMENT. f. Mallory acknowledges and agreed that this AGREEMENT provides him with consideration he would not receive were he not to sign this AGREEMENT and allow it to become binding on him. g. Mallory will have seven (7) non-waivable calendar days following the date of his execution of this AGREEMENT to revoke it. If Mallory determines to revoke the AGREEMENT, he must give express and actual written notice of revocation to the City not later than seven (7) calendar days after the date he executes this AGREEMENT. Such notice of revocation shall be effective only if and when received via electronic mail by the City Attorney 12116476.1 EL140-146 iuSill . 11 Gir. ^J ` f ", i ., i ,,' IY, "'k ., Agreement No. 6724 (mlie11si t),hensle laws irot1).col before 5:00 p.m. Pacific Standard Time on the seventh (71h) calendar day after Mallory signs this AGREEMENT. MALLORY ACKNOWLEDGES BY HIS SIGNATURE THAT HE FULLY UNDERSTANDS HIS RIGHT TO DISCUSS THIS WAIVER WITH LEGAL COUNSEL, THAT HE HAS CAREFULLY READ AND FULLY UNDERSTANDS THE WAIVER, AND THAT HE IS VOLUNTARILY AGREEING TO WAIVE ANY CLAIMS THAT 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 RELATED OR ATTRIBUTABLE TO THE PARTIES' ALLEGATIONS OR CLAIMS. 7. Release of Unknown Claims. For the purpose of implementing a full and complete release and discharge, the Parties expressly acknowledge that this AGREEMENT is also intended to include in its effect, without limitation, all claims which the Parties do not know of or expect to exist at the time of the execution hereof based on or related to Mallory's employment with the City through the effective date of this AGREEMENT with the exception of any claims Mallory may have under the California Workers' Compensation Act and Mallory agrees that this AGREEMENT contemplates the extinguishment of any such claim or claims. In addition, the Parties expressly waive and relinquish all rights and benefits afforded by California Civil Code section 1542, with the exception of any claims Mallory may have under the California Workers' Compensation Act, and does 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 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. 8. Each Party to Bear Own Fees and Costs. Each party shall bear its/his 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. 12116476.1 EL140-146 Agreement No. 6724 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 he or it has carefully read and fully understands all of the provisions of this AGREEMENT, and that he or it is voluntarily, without any duress or undue influence on the part of or on behalf of any parry, 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 12116476.1 EL140-146 Agreement No. 6724 this AGREEMENT shall be when 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 MALLORY OF ALL KNOWN OR KNOWN CLAIMS. IN WITNESS WHEREOF, the parties hereto have executed the SETTLEMENT AGREEMENT AND GENERAL RELEASE. Dated: August 11, 2023 Q'11� Charles Mallory, Employee Dated: I H ®2 3 Darrell George, City Manager or City of El Segundo APPROVED AS TO FORM: Dated: 08-11-2023 B S8� v jjMa Y.......... ............................. ...... SERINEH TERZYAN THE BLOOM FIRM Attorneys for CHARLES MALLORY Dated: ` B !� Y� Mark Hensley, City Attorney 7 12116476.1 EL140-146 Id^`;llii f 1, ✓v VIIIM'311Cf, "(, 'I FJ.fk:,a, N1}JM�14W'I,