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HomeMy WebLinkAbout20130718_Agreement-Resignation_PierceAGREEMENT TO RESIGNATION IN LIEU OF TERMINATION WITH GENERAL AND SPECIAL RELEASES THIS AGREEMENT TO RESIGN IN LIEU OF TERMINATION WITH GENERAL AND SPECIAL RELEASES, ("Agreement") is made and entered into by and between the City of San Luis Obispo ("City") and Cory Pierce ("Pierce"). WHEREAS, the parties wish to arrive at a separation of employment settlement and to resolve all pending, future, or existing claims between them: NOW, THEREFORE, in consideration of the following mutual covenants, the parties agree as follows: (1) Effective immediately upon execution of this agreement, Pierce resigns from active employment with the City ("Separation Date"). (2) It is understood and agreed between the parties that this resignation is classified as a "Resignation in Lieu of Termination" and is tendered as a result of the City issuing Pierce with a Notice of Intent to Terminate. Thus, the City is the moving party on this termination in accordance with 22 California Code Regulation 1256-1(d), and Pierce will, as a result, become involuntarily unemployed effective upon the Separation Date. It is also understood and agreed between the parties that the City will not in any way contest or appeal Pierce's application for or entitlement to unemployment benefits. Throughout the unemployment application process, Pierce shall describe the reason for separation as "involuntary separation because of disqualification for employment as a peace officer pursuant to California Government Code 1029" and he shall accurately respond to inquiries necessary to process the unemployment benefits claim. In exchange for accepting Pierce's resignation from employment, the City shall provide complete and accurate responses to any governmental agency that requests information necessary to the processing of any unemployment claim by Pierce but shall not provide responses unless requested. The City further agrees that if Pierce is required to appeal his application for unemployment benefits the City shall not attend any such appeal hearing unless required by law to do so. The parties agree that the provisions regarding unemployment are material terms of this Agreement. The City further agrees that: a. Pierce's group health insurance benefits will terminate effective August 31, 2013. Pierce may continue the City's group insurance benefits to the extent allowed under COBRA or other applicable law. b. On the Separation Date, the City will pay to Pierce the economic value of all vacation and compensatory time earned and unused as of the Separation Date as well as all other salary and/or employment; benefits to which he is entitled as of the Separation Date. However, Pierce will not be entitled to or accrue any additional vacation or fringe benefit eligibility or participation following the Separation Date, except as expressly set forth in this Agreement. (3) WAIVER AND RELEASE. In consideration of the payments and other consideration as set out in this Agreement, Pierce, Pierce's heirs, executors, administrators, successors, and assigns, hereby knowingly and voluntarily waives, releases, acquits and forever I discharge the City from any liability, action, suit, claim, damages, judgment, known or unknown, liquidated or unliquidated, fixed or contingent which Pierce has ever had or ever may have, arising out of or in conjunction with Pierce's employment with the City or the termination thereof, excluding the benefits as set forth in paragraphs 2 and 3, but including, without limitation, claims under federal, state or local common law or statute, as well as any form of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964, the Older Workers Benefit Protection Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Employee Retirement Income Security Act, the Rehabilitation Act of 1973, and any other local, state or federal anti -discrimination law or ordinance, any applicable collective bargaining agreement, any applicable wage and hour laws, and from wrongful discharge, severance pay, breach of contract, breach of any express or implied promise, retaliation, breach of public policy, defamation, negligence or other tortious conduct, or any other theory, whether legal or equitable. Notwithstanding anything in this Agreement to the contrary, the City agrees that by entering into this Agreement, Pierce does not waive his right to pursue, claim, appeal, grieve, challenge, and/or seek, even if through litigation, arbitration or otherwise: (i) any claimed rights to defense, indemnification and/or reimbursement protections which may be afforded public employees as codified, in part, in Government Code Sections 825 through 825.6, Government Code Sections 995 through 996.6; and (ii) any claims for workers' compensation injuries and/or an industrial disability retirement; and (iii) any claims for the economic value of all vacation and compensatory time earned and unused as of the Separate Date as well as other salary and/or employment benefits to which he is entitled as of the Separation Date; and (iv) any claims and/or defenses in response to any action brought against Pierce by the City or its agents. Pierce covenants that this Agreement and the releases contained in it constitute a waiver and release of any and all claims which would otherwise be preserved by operation of Section 1542 of the California Civil Code, Section 1542 provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his/her favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. (4) Specific Acknowledgment of Waiver of Claims under Age Discrimination in Employment Act ("ADEA") and Older Workers Benefit Protection Act. WAIVER OF RIGHTS OR CLAIMS PURSUANT TO TITLE 29 OF THE CODE OF THE LAWS OF THE UNITED STATES OF AMERICA AND CHAPTER 14, ENTITLED "AGE DISCRIMINATION IN EMPLOYMENT." Pierce specifically acknowledges that pursuant to Title 29 of the U.S. Code §§ 621 et seq entitled "AGE DISCRIMINATION IN EMPLOYMENT," 1) it shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his K compensation, terms, conditions, or privileges of employment, because of such individual's age; 2) to limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or 3) to reduce the wage rate of any employee in order to comply with said Chapter. Pierce hereby acknowledges and agrees that this Agreement constitutes a knowing and voluntary waiver of any and all rights or claims that exist or that Pierce has or may claim to have under the AREA for acts or omissions up to the date he executes this Agreement. Pierce acknowledges that: a. the consideration provided through this Agreement is the sole consideration he will receive from the City; b. he has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement; C. he has been provided a full and ample opportunity to study this Agreement, including a period of up to 21 days within which to consider whether to sign this Agreement; d. to the extent that Pierce takes less than 21 days to consider this Agreement prior to signing it, Pierce acknowledges that he had sufficient time to consider this Agreement with legal counsel and that he expressly, voluntarily and knowingly waives any additional time; and e. he is aware of his right to revoke this Agreement at any time within the seven-day period following the date he signs the Agreement, and that the Agreement shall not become effective or enforceable until the seven-day revocation period expires. Pierce must give written notice of revocation, which must be received by the City through the City Attorney, 990 Palm Street, San Luis Obispo, California 93401, no later than the seventh day after Pierce signs this Agreement. f. The "Effective Date" of this Agreement is the date after which all of the following have occurred: This Agreement is executed by the City and Pierce and the seven-day revocation period has expired without receipt of any revocation. Pierce agrees to execute this Agreement on or before 6:00 p.m. Pacific Standard Time (P.S.T.) on July 18, 2013. As a result, the Effective Date shall be July 25, 2013, at 6:00 p.m. (5) Pierce covenants that Pierce has not commenced, and will not commence, legal proceedings of any type except as set forth in Paragraphs 2 and 3, whether on his own behalf or on behalf of any other person or entity, against the City or individuals or entities released in this Agreement, or any of their respective successors or assigns, and further covenants not to maintain, join or assist in any such legal proceeding, suit, charge, or action, except as may be required by law. (6) The City and Pierce each agree to keep the terms of this Agreement strictly confidential and not to disclose those terms to anyone unless compelled to do so by compulsory court process, or except to a spouse, attorney, labor representative, tax adviser, to process the unemployment claim, or for a dispute between the parties. The parties agree that this confidentiality provision is a material term of this Agreement. 3 (7) This Agreement shall be construed under the Laws of the State of California and any dispute arising hereunder shall be conducted under the jurisdiction of the County of San Luis Obispo Superior Court. (8) Each party hereto agrees that in the event of any dispute concerning this Agreement or claims, demands, liabilities or causes of action included within its scope, the prevailing party shall be entitled to recover their attorney's fees and costs. The prevailing party shall be the party who is entitled to recover its costs of suit, whether or not the suit proceeds to final judgment. (9) If any portion of this Agreement shall be held invalid by a court of competent jurisdiction, the validity of the remainder of this Agreement shall not be affected. (10) This Agreement supersedes any previous understandings, agreements or correspondence of the parties on this subject and is binding on the parties, their heirs, executors, administrators, and successors in interest. (11) This document is the entire Agreement between Pierce and the City. The City has made no promises to Pierce other than those in this Agreement. This Agreement may not be changed orally, only in a written document signed by both Pierce and the City. For purposes of this Agreement, the parties shall be deemed to have participated equally in its drafting. (12) Except as necessary to implement the terms of this Agreement, this Agreement, the Notice of Intent to Terminate, and the underlying internal affairs investigation file shall be maintained in the Police Department's internal affairs file. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. THIS AGREEMENT CONTAINS A RELEASE. PLEASE READ CAREFULLY BEFORE SIGNING. Executed in San Luis Obispo, California (except by Ken Yuwiler) this day , /_1 APPROVED AS TO FORM AND CONTENT: ASST CITY ATTY ANDREA VISVESHWARA Acting City Attorney 0 CORY PIERCE KEN YUWILER Silver, Hadden, Silver, Wexler & Levine