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CONTRACT 3448 OtherGENERAL RELEASE AGREEMENT 1. PARTIES 344e•. This Separation, Severance and General Release Agreement ( "AGREEMENT ") is made and executed as of January L , 2005, by and between Gala Burkholder ( "EMPLOYEE ") and the CITY OF EL SEGUNDO ( "CITY "). 2. RECITALS 2.1 EMPLOYEE commenced employment with the CITY on January 23, 1984. EMPLOYEE is presently a full -time CITY employee in the position of Recreation Supervisor. 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 FINALLY, FULLY and COMPLETELY dissolve and terminate EMPLOYEE's employment with the CITY, to amicably settle and resolve all DISPUTES and DISAGREEMENTS and to release fully and completely ALL CLAIMS, if any, related to EMPLOYEE's employment with the CITY, the cessation of her CITY employment, and otherwise, that EMPLOYEE now has, has ever had, or will have in the future, individually or collectively, against the CITY, any of its agents, officers, 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, so as to allow EMPLOYEE and the CITY to continue their pursuits having fully, finally, comprehensively and conclusively resolved EMPLOYEE's employment with the CITY and all DISPUTES, contentions and allegations arising therefrom. 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 EMPLOYEE executing concurrently and delivering to the City with this AGREEMENT EMPLOYEE's resignation in the form attached hereto as Exhibit "A" and in full satisfaction and settlement of EMPLOYEE's claims, if any, the CITY shall place EMPLOYEE on paid administrative leave beginning on the effective date of this Agreement and ending thirty (30) days thereafter. In addition, the CITY agrees to hold and maintain all of EMPLOYEE's performance evaluations and reprimands from 2003 through 2004 including, without limitation, the December 11, 2003, and March 16, 2004 written reprimands issued to EMPLOYEE by Stacia Mancini, in confidence in a file maintained as the "Employee Confidential file." CITY further agrees that it shall not release copies of EMPLOYEE's 2003 to 2004 performance evaluations or reprimands without written authorization from EMPLOYEE to specifically review the "Employee Confidential file" or pursuant to a court order. LA #122891 v1 -1- 3.2 EMPLOYEE agrees that she shall not apply for or seek to again be employed by the CITY after the EFFECTIVE DATE of this AGREEMENT and thus waives any recall or return to work rights provided by any rule, ordinance, code, policy and/or collective bargaining agreement. 3.3 Upon execution of this Agreement, the City agrees to process EMPLOYEE's application for retirement. 3.4 EMPLOYEE and the CITY shall otherwise each bear their own attorney fees and costs incurred in connection with any DISPUTES and this AGREEMENT. However, in the event of a claim by one party of non - compliance with this Agreement, the prevailing party shall be entitled to recovery of attorneys' fees and costs. 3.5 EMPLOYEE "Last Day of Employment" with the CITY is thirty (30) days after this Agreement becomes effective. EMPLOYEE shall be entitled to payment for all unused sick and vacation time as of the date of her resignation in accordance with CITY rules and policies. 3.6 All written or verbal inquiries regarding the reason for EMPLOYEE's leaving the CITY's employ shall be answered by stating that EMPLOYEE "retired." No other information regarding EMPLOYEE's retirement, other than the position she held at the time of retirement and salary, shall be released by the CITY and its employees with respect to a written or verbal inquiry. CITY agrees to instruct the Human Resources Department, Recreation and Parks Department, and City Manager's office to respond to all other inquiries by stating that EMPLOYEE "retired." Further, with respect to all other inquiries, the CITY will instruct the Human Resources Department not to reveal any other information regarding EMPLOYEE's employment, other than the position she held at the time of retirement and salary. 4. Specific Acknowled ement of Waiver of Claims under ADEA and OWBPA The Age Discrimination in Employment Act of 1967 ( "ADEA ") 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. sea., Pub. L. 101 -433, 104 Stat. 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 she knowingly and voluntarily, for just compensation, waives and releases any rights she may have under the ADEA and/or OWBPA. EMPLOYEE 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 understood by EMPLOYEE; (b) EMPLOYEE is aware of, and/or has been advised of, her rights under the ADEA and OWBPA, and of the legal significance of her waiver of any possible claims she currently may have under the ADEA, OWBPA and/or similar age discrimination laws; LA #122891 v1 -2- 3448 -. (c) 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 she may have under the ADEA, the OWBPA and similar age discrimination laws; but may, in the exercise of her own discretion, sign or reject this AGREEMENT at any time before the expiration of the twenty -one (21) days; (d) 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; (e) EMPLOYEE has been advised by this writing that she should consult with an attorney rp for to executing this AGREEMENT; (f) EMPLOYEE has discussed this waiver and release with, and been advised with respect thereto by, her counsel of choice, and that she does not need any additional time within which to review and consider this AGREEMENT; (g) EMPLOYEE has seven (7) calendar days following her execution of this AGREEMENT to revoke the AGREEMENT; (h) Notice of revocation within the seven (7) calendar 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, Severance and General Release Agreement; "' and (i) This AGREEMENT shall not be effective until all parties have signed the AGREEMENT and ten (10) days have passed since EMPLOYEE's execution (the `EFFECTIVE DATE "). 5. RELEASE In exchange for the 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 her 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 (excluding claims for workers compensation benefits, if any), 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 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 LA #122891 v1 -3- DISPUTES, her 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. Additionally, the CITY hereby agrees not to initiate, or proceed with any actions, causes of action, 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, claims, etc., are, or become pending in any forum whatsoever, the CITY agrees 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 DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 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. LA #122891 v1 -4- 3448 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 EMPLOYEE nor the CITY has not 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 any way related to her 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 her 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 her capacity as an employee. 8.2 Advice of Counsel: Each party has received independent legal advice from its 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. EMPLOYEE acknowledges she had been advised by competent union representation with respect to this AGREEMENT. 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 Investi ag tion: Each party to this AGREEMENT has made such investigation of the facts pertaining to this severance and settlement and this AGREEMENT and all the matters pertaining thereto 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 LA #122891 v1 -5- 344 8 . t 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 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 thereto, 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 she 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 her 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 intend 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. 9.3 Full Integration: tion: 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. LA #122891 v -6- 3448 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. 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 Cony: 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, 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 or three (3) consecutive calendar days following deposit of the same in the United States mail. As to EMPLOYEE: �a1G, t3�ckho�,e� aO a. (3 J a C, �Ptdof & Qeoch L C q02- -7� As to the CITY: Attn: City Clerk City of El Segundo 250 Main Street El Segundo, California WHEREFORE, the parties hereto have read all of the foregoing, understand the same, and agree to all of the provisions contained herein. LA #122891 v1 -7- 4 4 8 • �a 1 DATED: 7,�- a DATED: �. J�-j j O& APPROVED AS TO FORM: MARK D. Karl H. Assista 0241 , City Attorney Attorney CITY OF EL SEGUNDO By: 0k EMPLOYEE By:QoAk ��UQ1/�` Gala Burkholder LA #122891 v1 _g_ Exhibit A January a'�, 2005 Bret Plumlee Administrative Services Director City of El Segundo 350 Main Street El Segundo, California Re: Resignation Dear Mr. Plumlee: I hereby submit my resignation to the City such that the last day I will be employed by the City is thirty (30) days from the date of this letter. Sincerely, q* �� Gala Burkholder LA #122891 vl -9-