CONTRACT 4243 - PERM Other CLOSEDAgreement # 4243
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ( "AGREEMENT ") is entered into this 20th
day of March, 2012, between the City of El Segundo ( "CITY ") and Greg Carpenter
( "EMPLOYEE ").
SECTION 1. TERM
EMPLOYEE shall commence employment as city manager for CITY on March
21, 2012. Except as otherwise provided for in this AGREEMENT, EMPLOYEE's
employment with CITY shall be on an at -will basis and will continue until terminated as
provided in this AGREEMENT
SECTION 2. DUTIES
EMPLOYEE shall perform to EMPLOYEE's best ability the duties and functions
of the City Manager of the CITY, as defined by California state law and CITY
Ordinances, Resolutions and Personnel Rules and Regulations, including without
limitation acting as the CITY's highest ranking administrative officer and management
employee, and shall perform such other legally permissible duties and acts as the CITY
Council may direct from time to time.
SECTION 3. TERMINATION OF EMPLOYMENT
(A) Through and including March 31, 2015, CITY may only terminate this
AGREEMENT based upon (i) EMPLOYEE's willful misconduct, including without
limitation, intentionally failing to fulfill EMPLOYEE's duties set forth in SECTION 2 of the
AGREEMENT; or (ii) EMPLOYEE's conviction or commission of a crime involving moral
turpitude; or (iii) without cause at any time. However, if CITY elects to terminate the
AGREEMENT without cause such that the termination date would occur before March
31, 2015, and the EMPLOYEE delivers to the City an executed copy of the Separation
and Release Agreement in the form attached hereto as Exhibit A within 30 days of his
termination, the City must pay EMPLOYEE a lump sum amount equal to the lesser of (i)
the amount of base pay that EMPLOYEE would have earned through March 31, 2015 or
(ii) six months of EMPLOYEE's base salary.
(B) EMPLOYEE may terminate this AGREEMENT at any time upon thirty -
days written notice to the Mayor of CITY or the City Attorney. EMPLOYEE's resignation
shall be deemed accepted upon delivery of resignation to the Mayor or the City
Attorney. EMPLOYEE shall not be entitled to any compensation upon such a
termination except as set forth in Section 3 (C);
(C) Upon any termination of this EMPLOYEE's employment, CITY shall pay
EMPLOYEE upon the effective date of such termination, an amount equal to the value
of the employee's accumulated, but unpaid and unused vacation and sick time in
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accordance with the vacation and sick time cash out policies applicable to the Executive
employees of the City.
SECTION 4. COMPENSATION AND BENEFITS
(A) EMPLOYEE's annual base salary is $ 210,000 which shall be paid in
equal bi- weekly payments. Employee's salary and performance shall be reviewed
annually and Council shall have the right, but not the obligation to increase
EMPLOYEE's salary pursuant to a written amendment to this AGREEMENT;
(B) CITY shall pay EMPLOYEE for professional membership dues and fees
and attendance at conferences as such may be budgeted by the CITY. EMPLOYEE
shall also be reimbursed upon presentation to CITY of verified receipts for sums
necessarily incurred by EMPLOYEE in the performance of EMPLOYEE's duties or as
otherwise budgeted for by CITY, so long as the expenses are in accordance with the
CITY's policies and state laws;
(C) EMPLOYEE shall be entitled to all other benefits of employment now in
effect or as hereafter approved by the CITY Council, which are provided to other
Executive employees of the CITY. EMPLOYEE shall pay the employee share (currently
7% of the employee's salary) of the PERS retirement benefit cost.
SECTION 5. ENTIRE AGREEMENT AND AMENDMENTS
CITY and EMPLOYEE acknowledge that no representation, inducement, promise
or agreement, oral or written, has been made or is being relied upon which is not set
forth in this AGREEMENT. This AGREEMENT supercedes all prior agreements with
respect to the subject matter hereof and, to the extent permitted by law, any and all
CITY Ordinances, Resolutions or Personnel Rules and Regulations of CITY that have
been or may be adopted. No amendment or modification to this AGREEMENT shall be
effective unless such is in writing and signed by the parties.
SECTION 6. EFFECT OF WAIVE R/S EVE RABILITY
Failure by either party to insist on strict compliance with any term or condition of
this AGREEMENT shall not be deemed a waiver of such term or condition, nor shall any
such failure be deemed a waiver of that right at any other time. If any provision of this
AGREEMENT is held by a court of competent jurisdiction to be unenforceable, the
remaining provisions shall remain in full force and effect.
SECTION 7. EMPLOYEE REPRESENTATION
EMPLOYEE represents that he has reviewed this AGREEMENT and has had the
opportunity to consult with legal counsel of EMPLOYEE's own choosing with respect to
this AGREEMENT. This AGREEMENT shall be deemed to have been drafted by both
parties and it shall not be interpreted against either party hereto based upon the drafting
hereof.
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SECTION 8. GOVERNING LAW
This AGREEMENT shall be governed by and construed in accordance with the
laws of the State of California and the venue for any legal action relating to this
AGREEMENT shall be the Superior Court of the State of California, County of Los
Angeles.
SECTION 9. COUNTERPARTS
This AGREEMENT may be executed in counterparts, which counterparts shall
constitute the AGREEMENT.
SECTION 10. ASSEMBLY BILL 1344 COMPLIANCE
To the extent CITY provides: (i) paid leave to EMPLOYEE pending an
investigation; (ii) funds for the legal criminal defense of the EMPLOYEE; and /or (iii) a
cash settlement to EMPLOYEE related to the termination of the EMPLOYEE, pursuant
to this AGREEMENT and Government Code Section 53243 et seq., EMPLOYEE shall
fully reimburse the City for any and all amounts paid by the City which fall within
subsections (i) through (iii) in the event that the EMPLOYEE is convicted of a crime
involving the abuse of his office or position.
IN WITNESS WHEREOF, CITY has caused this AGREEMENT to be executed
on its behalf by its Mayor and duly attested by its City Clerk; and EMPLOYEE has
executed this AGREEMENT on the date first written above.
CITY: EMPLOYEE:
By: B
Eh, 4 or Gre arp rater
ATTEST-
cry Mf6s'n, City rk)
ate.
APPROVED AS TO FORM:
By;
Mark ensley, City Attorney
Agreement #4243
EXHIBIT A
SEPARATION AND RELEASE AGREEMENT
1. PARTIES
This Separation, Severance and General Release Agreement ( "AGREEMENT ") is
made and executed as of 2012, by and between GREG CARPENTER
( "CARPENTER ") and the CITY OF EL SEGUNDO ("CITY"),
2. RECITALS
2.1 CARPENTER commenced employment with the CITY as city manager
on or about March 21, 2012 pursuant to that EMPLOYMENT AGREEMENT entered into
between the parties on or about March 20, 2012.
2.2 This AGREEMENT is made to amicably resolve all matters between
CARPENTER and the CITY regarding CARPENTER's employment and the cessation of
said employment.
2.3 The parties understand and agree that a material purpose of this
AGREEMENT is to resolve any disputes and CLAIMS arising from or relating to
CARPENTER's employment with CITY, if any, and provide for a separation payment for
CARPENTER.
3. CONSIDERATION
3.1 In exchange for CARPENTER'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 CARPENTER's CLAIMS, if any,
the CITY shall pay CARPENTER the sum of $ [amount equivalent to six
month base pay] ( "SEVERANCE PAYMENT ") in the form of a check made payable to
DOUG CARPENTER, to be delivered within 10 days of the EFFECTIVE DATE of this
AGREEMENT. Required tax withholdings and deductions will be made from the
SEVERANCE PAYMENT.
3.2 .Respecting the SEVERANCE PAYMENT referenced in paragraphs 3.1
above, CARPENTER 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 CARPENTER.
3.3 CARPENTER and the CITY shall otherwise each bear their own attorney
fees and costs incurred in connection with any disputes and this AGREEMENT.
3.4 Except as set forth in this Paragraph 3, the parties agree that no other
monies or benefits are due, owing or unpaid by reason of CARPENTER's employment or
association with CITY and that no other monies or benefits will be paid or maintained by
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CITY to /for CARPENTER, in CARPENTER's name, or on CARPENTER's behalf.
CARPENTER expressly agrees that the SEVRANCE PAYMENT 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 his 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, CARPENTER acknowledges that he knowingly and voluntarily, for
just compensation, waives and releases any rights he may have under the ADEA and/or
OWBPA. CARPENTER 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 understood by CARPENTER;
(b) CARPENTER is aware of, and /or has been advised of, his rights under the
ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he
currently may have under the ADEA, OWBPA and /or similar age discrimination laws;
(c) CARPENTER 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 and similar age discrimination laws; but may,
in the exercise of his 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) CARPENTER has been advised by this writing that he should consult with
an attorney prior to executing this AGREEMENT;
(f) CARPENTER has discussed, or had the opportunity to discuss, this waiver
and release with, and been advised with respect thereto by, his counsel of choice, and that he
does not need any additional time within which to review and consider this AGREEMENT;
(g) CARPENTER has seven (7) days following his 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 and Release Agreement;` and
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(i) This AGREEMENT shall not be effective until all parties have signed the
AGREEMENT and ten (10) days have passed since CARPENTER's execution of the
AGREEMENT (the "EFFECTIVE DATE ").
5. RELEASE
In exchange for the SEVERANCE PAYMENT, representations and covenants
made herein, and except only as to such rights or claims as may be created by this
AGREEMENT, CARPENTER hereby, and for his 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 nature whatsoever, known or unknown, suspected or unsuspected, which
CARPENTER 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. CARPENTER
expressly acknowledges that the CLAIMS forever barred by this AGREEMENT specifically
include, but are not limited to, claims related to the DISPUTES, his 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 CARPENTER
arising out of CARPENTER' 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.
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6. UNKNOWN CLAIMS
6.1 CARPENTER' 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 CARPENTER 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. CARPENTER 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
CARPENTER 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: CARPENTER and the CITY hereby represent and
warrant that CARPENTER nor the CITY has not filed, nor will they file in the future, any
complaint, charge, claim, legal action, or proceeding arising out of CARPENTER'
employment with the CITY, the DISPUTES or the CLAIMS released hereby or in any way
related to his 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.
CARPENTER retains his right to request indemnification from the City pursuant to
California Government Code Section 825 et seq. with respect to any action brought against
CARPENTER in his capacity as an employee.
8.2 Advice of Counsel: Each party has received, or has had the opportunity to
receive, independent legal advice from their respective 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.
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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 hereto 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 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: CARPENTER 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 hereto, 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: CARPENTER represents and warrants as a
material term of this AGREEMENT that he 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, CARPENTER further represents
and warrants that none of the CLAIMS released by his hereunder will in the future be
assigned, conveyed, or transferred in any fashion to any other person and /or entity.
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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 intends 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. The venue for any dispute arising out of or relating to this
AGREEMENT shall be the Los Angeles Superior Court.
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.
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 Cam: All parties shall receive a fully executed copy of this
AGREEMENT.
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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 CARPENTER:
GREG CARPENTER
As to the CITY:
Attn: City Clerk
City of El Segundo
350 Main Street
El Segundo, California 90245 .
WHEREFORE, the parties hereto have read all of the foregoing,
understand the same, and agree to all of the provisions contained herein,
CITY OF EL SEGUNDO GREG CARPENTER
DATED:
In
APPROVED AS TO FORM:
DATED:
By:
Mayor Greg Carpenter
By:
Mark Hensley, City Attorney
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