3199y9.
SEPARATION SEVERANCE AND GENERAL RELEASE AGREEMENT
1. PARTIES
This Separation, Severance and General Release Agreement ( "AGREEMENT ") is
made and executed as of May _, 2003, by and between CHRIS KETZ ( "KETZ ") and the
CITY OF EL SEGUNDO ( "CITY ").
2. RECITALS
2.1 KETZ commenced employment with the CITY on January 10, 2000.
KETZ is presently a full -time CITY employee in the position of Planning Manager.
2.2 This AGREEMENT is made to amicably resolve all matters between
KETZ and the CITY regarding KETZ'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 KETZ'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
KETZ's employment with the CITY, the cessation of her CITY employment, and otherwise, that
KETZ 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 KETZ and the CITY to continue their pursuits
having fully, finally, comprehensively and conclusively resolved KETZ's employment with the
CITY and all DISPUTES, contentions and allegations arising therefrom.
3. CONSIDERATION
3.1 In exchange for KETZ's execution, faithful performance and compliance
with this AGREEMENT, including without limitation the granting of the releases set forth
herein, and in full satisfaction and settlement of KETZ's claims, if any, the CITY shall pay
KETZ the sum of $30,000.00 ( "severance payment ") in the form of a check made payable to
CHRIS KETZ, to be delivered to KETZ's counsel, Silver Hadden & Silver on the EFFECTIVE
DATE of this AGREEMENT. Required tax withholdings and deductions will be made from the
severance payment. In addition, the CITY agrees to hold and maintain KETZ's last performance
evaluation as well as the September 24, 2002 Written Reprimand issued to Ketz by Jim Hansen
in confidence in a file maintained as the "Ketz 2002 file" and further agrees that it shall not
release a copy of KETZ's last performance evaluation or the September 24, 2002 Written
Reprimand without written authorization from KETZ to specifically review the "Ketz 2002 file"
or pursuant to a court order.
3.2 In exchange for the severance payment and the sealing of KETZ's last
performance evaluation and the September 24, 2002 Written Reprimand, KETZ agrees that she
shall not apply for or seek to again be employed by the CITY after the EFFECTIVE DATE of
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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 KETZ'
application for retirement.
3.4 Respecting the severance payment referenced in paragraphs 3.1 above,
KETZ understands and agrees that the employees portion of any federal, state or local taxes, if
any, that may be owed or payable on the sums caused to be paid hereunder by the CITY are the
sole and exclusive responsibility of KETZ.
3.5 KETZ 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.
3.6 KETZ "Last Day of Employment" with the CITY shall be June 14, 2003.
3.7 All written inquiries regarding the reason for KETZ' leaving the CITY's
employ shall be answered by stating that KETZ "retired." No other information regarding
KETZ' 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 inquiry. The City will instruct
the Human Resources Department to respond to all other inquiries by stating that KETZ
"retired." Further, with respect to all other inquiries, the CITY will instruct the Human
Resources Department not to reveal any other information regarding KETZ' retirement, other
than the position she held at the time of retirement and salary.
3.8 Except as set forth in this Paragraph 3 and including KETZ's
compensation due through her Last Day of Employment, the Parties agree that no other monies
or benefits are due, owing or unpaid by reason of KETZ's employment or association with CITY
and that no other monies or benefits will be paid or maintained by CITY to /for KETZ, in
KETZ's name, or on KETZ's behalf. KETZ expressly agrees that the payments and benefits
described in Paragraph 3 supersede and are in substitution for any payments or benefits under
any employment agreement(s), business agreement(s) or arrangement(s), oral or written
promises, or severance policy or plan respecting or regarding her employment or association
with CITY.
4. Specific Acknowledgement 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. seq.,
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, KETZ acknowledges that she knowingly and voluntarily, for just
compensation, waives and releases any rights she may have under the ADEA and /or OWBPA.
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KETZ 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 KETZ;
(b) KETZ 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;
(c) KETZ 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 (2 1) 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) KETZ has been advised by this writing that she should consult with an
attorney prior to executing this AGREEMENT;
(f) KETZ 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) KETZ has seven (7) days following her execution of this AGREEMENT
to revoke the AGREEMENT;
(h) Notice of revocation within the seven (7) 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 KETZ'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, KETZ 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 (including without limitation all 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
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3199..,;
nature whatsoever, known or unknown, suspected or unsuspected, which KETZ 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 (including without
limitation any circumstance(s) giving rise to liability for workers compensation benefits) 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. KETZ expressly acknowledges that the CLAIMS
forever barred by this AGREEMENT specifically include, but are not limited to, claims related
to the DISPUTES, her employment with the CITY and its cessation, any claims for wages,
overtime or benefits (including without limitation workers compensation 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, workers compensation,
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 KETZ arising out
of KETZ' 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 KETZ' 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.
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6.2 KETZ 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. KETZ 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
KETZ 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.
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: KETZ and the CITY hereby represent and warrant that
KETZ nor the CITY has not filed, nor will they file in the future, any complaint, charge, claim,
legal action, or proceeding arising out of KETZ' 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. KETZ 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 Ketz 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.
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 Investigation: 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.
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3199 .
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
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: KETZ 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: KETZ 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, KETZ 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: 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.
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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.
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 Copy: 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 KETZ:
Chris Ketz
335 31s' Street
Hermosa Beach, California 90254
As to the CITY:
Attn: City Clerk
City of El Segundo
250 Main Street
El Segundo, California 90245
LA #122891 v1 -7-
9.11 Confidentiality: Ketz agrees to keep the terms of this Agreement
confidential except to the extent that it is required bylaw to disclose the terms hereof.
WHEREFORE, the parties hereto have read all of the foregoing, understand the
same, and agree to all of the provisions contained herein.
DATED: / CITY OF EL SEGUNDO
DATED:
By:
CHRIS KETZ
am
CHRIS KETZ
APPROVED AS TO FORM:
BURKE, WILLIAMS & SORENSEN, LLP
By:
MARK D. ENSLEY
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APPROVED AS TO FORM.:
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