CONTRACT PERM - 5720 Other CLOSEDAgreement No. 5720
EMPLOYMENT AGREEMENT BETWEEN
CITY OF EL SEGUNDO
AND
CITY MANAGER
This Employment Agreement ("Agreement") is entered into on this day of June,
2019 ("effective Date") between City of EI Segundo ("City") and Scott Mitnick ("City
Manager").
RECITALS
A. City desires to employ services of Scott Mitnick to serve as its City Manager,
B. City desires to establish certain conditions and of employment, provide certain
compensation and benefits, and set working conditions for such employment, as
authorized by EI Segundo City Council.
C. Scott Mitnick desires to accept such employment on terms, as set forth herein.
AGREEMENT
The parties agree as follows:
Section 1. Duties — Exclusive Employment
City agrees to employ Scott Mitnick (hereinafter referred to as "City Manager") to
serve as the City's chief executive officer and to perform the duties and functions
specified in: A) California state law; B) EI Segundo Municipal Code (including having
the authority to interview, hire, and dismiss employees, and to direct City work force in
accordance with applicable state laws, the EI Segundo Municipal Code and applicable
personnel rules and bargaining unit agreements); C) Applicable City ordinances,
resolutions, rules, and policies; D) Current City job specification; and, E) Other legally
permissible duties and functions as City Council may direct from time to time.
City Manager agrees that he will, at all times, be employed exclusively by City to
perform all duties and obligations required either expressly or implicitly by this
Agreement and may not be employed in any other capacity while employed by City
without prior consent of City Council. City Manager shall focus his professional time,
ability, and attention to City business during time in which this Agreement is in force.
City Manager shall not engage in any other business duties or pursuits whatsoever
or, directly or indirectly, render any services of a business, commercial, or professional
nature to any other person or organization, whether provided compensation or
otherwise, without prior consent of City Council. Notwithstanding the foregoing, the
expenditure of reasonable amounts of time not in conflict with City's needs and interests
for educational, charitable, community, and/or professional activities shall not be
deemed a breach of this Agreement and shall not require prior consent.
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Section 2. Term and At -Will City Manager Status
The term of this Agreement shall be for a period of four (4) years, from July 1 , 2019
to June 30, 2023 and may only be extended by a written amendment to this Agreement.
In the event that the Agreement is not renewed but the City Manager continues to be
employed by the City, all terms of the Agreement shall remain in effect until terminated
as provided under this Agreement except City Manager shall not be entitled to any
Severance Payment pursuant to Section 31. of this Agreement.
City Manager serves as an "at will" employee (as defined in California Labor Code
Section 2922 while this agreement has a potential term of four years there is no
specified or guaranteed term of employment for the City Manager pursuant to this
Agreement), serving at the pleasure of City Council, and nothing in this Agreement shall
require cause for removal, or prevent, limit, or otherwise interfere with the right of City
Council to terminate the services of City Manager at any time, subject only to the
provisions set forth in Section 3 of this Agreement. In addition, nothing in this
Agreement shall prevent, limit, or otherwise interfere with the right of City Manager to
resign at any time from his position with City, subject only to the provisions set forth in
Section 3 of this Agreement.
Section 3. Termination of Agreement
This Agreement shall become effective on the Effective Date and may thereafter be
terminated in any of the following ways:
A. By mutual written agreement of the parties.
B. The City may terminate this Agreement for Cause or without Cause. For
purposes of this Agreement, "Cause" shall mean: (1) City Manager's
commission of an act of fraud, embezzlement or misappropriation or a crime
of moral turpitude; (2) City Manager's continuing or willful misconduct or
failure, refusal or neglect to perform his job functions, adhere to the lawful
direction of the City consistent with his position, or adhere to the lawful
policies and practices of the City, or (3) Conviction of a crime involving an
"Abuse of office or position" as defined in Government Code Section
53243.4. Notwithstanding the foregoing, if the occurrence of an event of
"neglect" described in clause (2) above is capable of being cured, such
occurrence shall constitute Cause only if written notice specifying in
reasonable detail the nature thereof, and the manner in which the City
requires cure to be effected, is provided to City Manager within thirty (30)
days of the City becoming aware of the alleged event or conduct and City
Manager shall have substantially failed to cure such event as soon as
reasonably possible but in no event later than fourteen (14) days after
receiving such notice. The written notice shall: 1) Specify the particular
cause(s) for termination and the facts supporting the decision to terminate for
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cause; 2) Provide notice of City Manager's right to legal representation; and,
3) Provide notice of City Manager's right to request a hearing before City
Council to address the basis for the termination.
C. Termination by City Manager. City Manager may terminate this Agreement
for any reason upon thirty (30) days' notice.
D. Death/Disability of City Manager. This Agreement shall terminate
automatically upon City Manager's death. The City may terminate This
Agreement upon City Manager's Disability. For purposes of this Agreement,
"Disability" means that City Manager has become "disabled" within the
meaning of Section 409A of the Internal Revenue Code of 1986, as
amended. If the City Manager becomes disabled within the meaning of
Government Code Section 20027, then the City will place the City Manager
on an unpaid leave of absence and apply for a disability retirement.
E. In the event City terminates the Agreement without cause, City shall pay City
Manager an amount equal to the lessor of the base salary for the unexpired
term of this Agreement or fifty percent (six months) of the City Manager's
then Base Salary ("Severance Payment"), less applicable taxes and
withholdings and City health, dental vision and other group insurance
benefits for the same period of time after the date of termination, to the
extent permitted by the then applicable insurance plans and benefit
programs. Upon receipt of an executed copy of the applicable Settlement
Agreement and Release ("Release") (attached as Exhibit B), City shall make
the Severance Payment , at the option of City Manager, in any of the
following manner: (1) A lump sum upon date of termination; (2) A lump sum
on January 1 of the following year; (3) On the same schedule as the City's
normal payroll cycle but not as an employee of the City; or, (4) Any
combination of previous three options, as directed by City Manager. If the
City Manager elects Severance Payment option (1), City shall make the
Severance Payment within 15 days of the date of receipt of the fully
executed Release.
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F. In the event that City, and any time during the period in which this
Agreement is in force, reduces the salary and/or other benefits of City
Manager in a greater percentage than applicable to an across-the-board
reduction for executive management employees of the City, City Manager
may, at his option, deem the salary reduction a termination without cause,
entitling City Manager to the Severance Payment and Insurance Payment (if
applicable) as set forth in section 3(F) above.
Section 4: Salary
City agrees to pay City Manager for his services rendered an initial base annual
salary of $245,000.00 ("Base Salary"), effective July 1 , 2019, payable in the normal
payroll installments at the same time as other executive management employees of City
are paid. City Council shall review City Manager's salary annually as part of his
performance evaluation, as set forth in Section 6, and may provide adjustments as it
determines appropriate. City Council may take into consideration annual cost of living
and/or merit salary adjustments provided to other executive management employees.
Section 5: Annual Performance Bonus
City Manager shall be eligible to receive an "Annual Performance Bonus" of up to
15% of the City Manager's Base Salary per year based on City Council's annual
performance review. Such bonus, if provided, may be received by the City Manager as
regular pay, converted to deferred compensation (401a Plan, 457 Plan, HSA, or other
allowed City plan to the extent allowed by law), and/or some other mechanism mutually
agreed to by City Council and City Manager.
Section 6: Performance Evaluation
City Council shall conduct its first initial performance review of City Manager after
the completion of his first six months. City Council shall provide input with respect to
City Manager's initial performance and alignment with City Council goals and objectives.
An adjustment to compensation at this time will be at City Council's discretion.
Commencing with the completion of the City Manager's first full year with the City,
City Council shall annually review and evaluate his performance and compensation in
closed session. If possible, this annual review should take place in July of each year to
allow for timely evaluation and payment of the annual salary adjustment and/or one-time
performance bonus, if City Council determines in its discretion that City Manager is
eligible for either. Said review and evaluation shall be in accordance with specific
performance measures and rating criteria mutually agreed to by City Council and City
Manager.
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Section 7: Hours of Work & Designation of "Acting City Manager"
It is recognized that City Manager must devote the time necessary even outside
City's normal operating hours, and to that end, City Manager may take leave as he
deems appropriate. During any such leave, City Manager may designate an "Acting
City Manager" to oversee operation of the City in his absence, in compliance with EI
Segundo Municipal Code.
Section 8: Benefits
Benefits provided to City Manager are addressed in Exhibit A.
Section 9: Professional Development & General Business Expenses
A. City agrees to budget and pay for professional dues, fees, subscriptions, and
related expenditures on behalf of City Manager which are necessary for continuation
and full participation in international, national, state, regional, and local associations
and organizations necessary and desirable for City Manager's continued professional
growth and development, and for the good of the City.
B. Subject to approval of a budget by the City Council, City agrees to pay for travel
and City's normal per diem or expenses of City Manager for professional and official
travel, meetings, and occasions necessary to continue the professional development of
City Manager and to adequately pursue official and other functions of the City,
including but not limited to the International City/County Management Association
(ICMA), National League of Cities, League of California Cities, and other such
international national, state, regional, and local governmental and professional groups
and committees which City and/or City Manager serves as a member.
C. Subject to approval of a budget by the City Council, City agrees to pay for the
travel and City's normal per diem or expenses of City Manager for multi -day courses,
institutes, training, and seminars that are necessary for professional development and
for the good of the City, as determined by City Manager. City Manager shall not be
entitled to receive reimbursement for mileage so long as the City Manager receives a
car allowance pursuant to this Agreement.
D. Subject to approval of a budget the City Council, City agrees to pay for one-
time and recurring costs of office furniture, equipment, supplies, etc. as City Manager
deems necessary to carry out his duties for the City. The City must provide City
Manager with the necessary office space, furniture, equipment and supplies necessary
and customarily provided to perform the duties of a City Manger
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Section 10: Moving and Relocation Expenses
If City Manager moves his principal residence into or near EI Segundo, City shall
reimburse City Manager for actual and reasonable moving and relocation expenses
incurred and approved by the City Council.
Section 11: Other Terms and Conditions of Employment
City Manager shall be entitled to receive all employee benefits provided to executive
management employees not specifically addressed herein, including any future benefits
provided to executive management employees during the term of this Agreement.
Section 12: Notices
Any notice required by this Agreement shall be in writing and delivered either
personally, via overnight courier, or U.S. First Class Mail. The notice address for the
City is: EI Segundo City Council, c/o City Attorney, 350 Main Street, EI Segundo, CA
90245. The notice address for the City Manager is the address supplied by City
Manager and on file with the City. Either part may specify an alternate address in
accordance with this notice section. Notice shall be effective upon receipt.
Section 13. Mediation/Arbitration
Any and all disputes of whatever kind or nature arising out of or related to this
Agreement or City Manger's employment or separation from the City shall be resolved
through mediation and then binding arbitration, if necessary, utilizing Judicial Arbitration
and Mediation Services ("JAMS") and shall be conducted in JAMS Century City or
downtown Los Angeles offices or such other location mutually agreed upon by the
parties. JAMS mediation and arbitration procedures and rules shall be utilized for
purposes of conducting the mediation and arbitration. JAMS shall randomly provide the
parties with a list of three mediators or arbitrators, depending on which process is being
utilized, and each party shall have the right to reject one of the mediators or arbitrators.
In the event that more than one mediator or arbitrator is left after the parties have each
had the opportunity to reject one of the mediators or arbitrators, JAMS shall randomly
select the mediator or arbitrator to mediate or arbitrate the dispute(s). The City will pay
the arbitrator's fees and arbitration expenses and any other costs unique to the
arbitration, recognizing that each side bears its own deposition, witness, expert and
attorney's fees and expenses to the same extent as if the matter were being heard in
court. If, however, any party prevails on a statutory claim, which affords the prevailing
party attorney's fees and costs, then arbitrator may award reasonable fees and costs to
the prevailing party. Any dispute as to who is the prevailing party and/or the
reasonableness of any fee or cost shall be resolved by the arbitrator.
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Section 14. 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.
Section 15: General Provisions
A. All of City Manager's writings, reports, and other documentation generated as
part of his day-to-day duties during his employment with the City are the
property of the City.
B. This Agreement is for professional services that are personal to the City, and the
Agreement is not assignable by City Manager.
C. The provisions of this Agreement shall be construed as a whole according to its
common meaning or purpose of providing a public benefit and not strictly for or
against any party. It shall be construed consistent with the provisions hereof, in
order to achieve the objectives and purposes of the parties. Wherever required
by the context, the singular shall include the plural and vice versa, and the
masculine gender shall include the feminine or neutral genders or vice versa.
D. This Agreement and the rights and obligations of the parties shall be governed
and interpreted in accordance with the laws of the State of California.
E. The text herein shall constitute the entire Agreement between the parties and
supersedes any other agreements, either oral or in writing, between the parties
hereto with respect to rendering these services, compensation matters, or
benefits. Any modification of this Agreement shall be effective only if it is in
writing and signed by both parties.
F. This Agreement shall inure to the benefit of the heir at law and executor(s) of
City Manager.
G. The captions or headings in this Agreement are for convenience only and in no
way define, limit, or describe the scope or intent of any provision or section of
this Agreement.
H. If any provision, or any portion thereof, contained in this Agreement is held
unconstitutional, invalid, or unenforceable by a Court, the remainder of this
Agreement, or portion thereof, shall be deemed severable, shall not be affected,
and shall remain in full force and effect.
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Each part of this Agreement acknowledges that no representations,
inducements, promises, or agreements, oral or otherwise, have been made by
any party, or anyone acting on behalf of any party, which is not embodied
herein, and that no other agreement, statement, or promise not contained in this
Agreement shall be valid or binding on either party.
J. The parties acknowledge and agree that the terms and provisions of this
Agreement have been negotiated and discussed between the parties, and this
Agreement reflects their mutual agreement with respect to the subject matter of
this Agreement. Because of the nature of such negotiations and discussions, it
would be inappropriate to deem any party to be the drafter of this Agreement.
Therefore, no presumption for or against validity or as to any interpretation
hereof, based upon the identity of the drafter, shall be applicable in interpreting
or enforcing this Agreement.
K. Both parties have had sufficient time and opportunity to consult with legal
counsel of their own choosing regarding the terms and conditions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
City of EI Se do
Drew Boyles, Mayor
Scott Mitnick
Scott Mitnick, City Manager
Attest:
By:
2ityClerk
Approved as to form.
By:
City Attorney
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•lI.1�"
Date
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Agreement No. 5720
EXHIBIT A
CITY OF EL SEGUNDO
CITY MANAGER BENEFITS
(As of July 1, 2019)
Benefits shall be provided as follows:
1. Medical, Dental, and Vision Insurance:
City Manager shall be eligible to participate in the health, dental, and vision insurance
plans provided to City employees, including the current health plans provided through
CalPERS on the same terms and conditions as employees of the executive
management group.
2. Retirement:
If City Manager's employment is concurrently terminated at the same as retiring from
CalPERS, he shall be immediately entitled to City -paid post-retirement medical
insurance benefits on the same terms and conditions as the executive management
group.
3. Deferred Compensation:
Effective July 1, 2019, each pay period City agrees to pay an amount equal to ten (10)
percent of City Manager's monthly Base Salary into applicable City Internal Revenue
Code Section 401 a and/or Section 457 deferred compensation plan(s). City Manager is
also eligible to participate in City's 401a Plan, 457 Plan, Health Savings Plan, Retiree
Health Savings Plan, and/or related plans.
4. Life Insurance:
City shall provide City Manager with a term life insurance policy in the amount of
$500,000, with a separate travel life insurance provision (as per the City's regular policy
provisions). City Manager shall be eligible to participate in City's Supplemental Life
Insurance Program at his own expense.
5. Long -Term Disability:
City shall provide long-term disability income insurance pursuant to the provisions of the
City's Executive LTD Plan.
6. Vacation Leave:
City Manager shall be entitled to a starting balance of one hundred (100) hours of
Vacation Leave on the effective date of this Agreement. Annual hours shall accrue at
the same rate used for executive management City employees based on City
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Manager's total lifetime years of PERS service, which is currently 200 hours per year.
City Manager shall receive same annual cash conversion option as executive
management employees.
City and City Manager shall mutually agree to all vacation periods and such time should
be scheduled at least thirty (30) days in advance of the vacation date, unless otherwise
allowed by City Council. Upon termination or separation of employment from City, City
Manager shall have the option to be paid for unused Vacation Leave hours, to covert
the hours to deferred compensation to the extent permitted by law (401a Plan, 457
Plan, HSA, or other allowed plan), and/or to use for other allowed uses for executive
management employees.
7. Sick Leave:
City Manager shall be entitled to a starting balance of one hundred (100) hours of Sick
Leave on the effective date of this Agreement. Annual hours shall accrue at the same
rate used for executive management employees, which is currently 8 hours per month.
Upon termination or separation of employment from City, City Manager shall on the
same terms and conditions as executive management employees (except his years of
service shall be based upon his lifetime years of PERS service) have the option to be
paid for unused Sick Leave hours, to covert the hours to deferred compensation (401 a
Plan, 457 Plan, HSA, or other allowed plan), and/or to other allowed uses for executive
management employees.
8. Executive Leave:
City Manager shall be entitled to 80 hours of Executive Leave per year. Leave cannot
be cashed in or otherwise be transferred or converted for value.
9. Holidays & Other Leave:
City Manager shall receive the same paid holidays, bereavement leave, etc. as
executive management employees.
10. Automobile Allowance:
City Manager's duties require that he shall have the unrestricted use, at all times during
his employment with City, of an automobile. In lieu of using a City provided automobile,
City Manager shall receive a City -provided monthly automobile allowance of $500.00
starting on the effective date of this Agreement. Annual inflation adjustments to this
amount shall be provided as per the then current United States Internal Revenue
Service (IRS) Standard Mileage Rate for Business Use and will take place at the
beginning on July 1St of each year.. City Manager shall at all times keep on file with the
City Clerk's Office proof of current automobile insurance with a minimum of three
hundred thousand dollars ($300,000.00) of liability coverage.
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11. Section 125 Flex Plan:
City Manager shall be eligible to enroll in City's Section 125 Plan for payment of
employee -paid insurance, medical treatment, etc. with pre-tax dollars to the extent
permitted by law. City shall pay any administrative fee(s).
12. Employee Assistance Program:
City shall pay for the full cost of Employee Assistance Program for City Manager and
dependents.
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EXHIBIT B
SEPARATION AND RELEASE AGREEMENT
1. PARTIES
This Separation, Severance and General Release Agreement ("AGREEMENT") is
made and executed as of , by and between _w ("EMPLOYEE")
and the CITY OF EL SEGUNDO ("CITY").
2. RECITALS
2.1 EMPLOYEE commenced employment with the CITY as city manager on
or about , 2019, pursuant to that EMPLOYMENT AGREEMENT entered
into between the parties on or about _, 2019.
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 resolve any disputes and CLAIMS arising from or relating to
EMPLOYEE's employment with CITY, if any, and provide for a separation payment for
EMPLOYEE.
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 in full satisfaction and settlement of EMPLOYEE's CLAIMS, if any, the
CITY shall pay EMPLOYEE the sum of $ [amount equivalent to six month
base pay or amount of time left on contract, whichever is less plus medical/dental/vision for
the same period of time as specified in the EMPLOYMENT AGREEMENT ]
("SEVERANCE PAYMENT") in the form of a check made payable to , to
be in accordance with the schedule the EMPLOYEE chooses from the options set forth in the
EMPLOYMENT 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, EMPLOYEE understands and agrees that EMPLOYEE's 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 EMPLOYEE.
3.3 EMPLOYEE and the CITY shall otherwise each bear their own attorney
fees and costs incurred in connection with any disputes and this AGREEMENT.
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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 EMPLOYEE's employment or
association with CITY and that no other monies or benefits will be paid or maintained by
CITY to/for EMPLOYEE, in EMPLOYEE's name, or on EMPLOYEE's behalf.
EMPLOYEE expressly agrees that the SEVERANCE 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. Sneci.Bc Acknowledgement of Waiver of C'lainis under ADEA and OWBPA
The Age Discrimination in Employment Act of 1967 (29 U.S.C. § 626, et. seq.;
"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,"
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 he knowingly and voluntarily, for just
compensation, waives and releases any rights he may have under the ADEA and/or OWBPA.
EMPLOYEE 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 EMPLOYEE;
(b) EMPLOYEE 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) 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 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) EMPLOYEE has been advised by this writing that he should consult with
an attorney before executing this AGREEMENT;
(f) EMPLOYEE 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) EMPLOYEE has seven (7) days following his execution of this
AGREEMENT to revoke the AGREEMENT;
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(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
(i) This AGREEMENT shall not be effective until all parties have signed the
AGREEMENT and ten (10) days have passed since EMPLOYEE'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, EMPLOYEE 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
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 (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. EMPLOYEE
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 EMPLOYEE
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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 § 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 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."
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.
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'
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.
EMPLOYEE retains his right to request indemnification from the City pursuant to California
Government Code § 825 et seq. with respect to any action brought against EMPLOYEE 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
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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 § 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 Investiation: 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: 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 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: EMPLOYEE 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, EMPLOYEE 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 Cooeration: 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 Governin gw: 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 Countemarts: 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.
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9.9 Executed Com: 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:
Name
Address
Address
As to the CITY:
Attn: City Clerk
350 Main Street
El Segundo, CA 90245
WHEREFORE, the parties hereto have read all of the foregoing, understand the same,
and agree to all of the provisions contained herein.
DATED:
DATED:
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
CITY OF EL SEGUNDO
By:
Mayor
EMPLOYEE
By:
Scott Mitnich
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