HomeMy WebLinkAboutHR Separation Agreement; Salvisberg, LarrySAN RAFAEL
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THE CITY WITH A MISSION
CITY OF SAN RAFAEL
Voluntary Retirement Separation Program
SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
This Separation Agreement and Release of All Claims (hereinafter referred to as the
"Agreement") is made and entered into by and between the undersigned "Employee,"
his/her heirs, representatives, attorneys, successors and assigns, and anyone claiming
through Employee and the City of San Rafael, a municipal corporation, and its City
Council members, officers, agents, employees, administrators, representatives,
executors, successors, assigns, and/or other individuals or entities related thereto
(hereinafter referred to collectively as "the City").
RECITALS
WHEREAS,
1. The City has a projected budget shortfall for the remainder of fiscal year 2019-
2020 and for fiscal year 2020-2021 as a result of the economic downturn.
2. In order to address the budget shortfall, the City is offering all employees who
have been employed by the City for at least ten (10) full years of service in a
regular position the option of electing to participate in the Voluntary Retirement
Separation Program (hereinafter "Retirement Program") described herein.
3. Employee is eligible for retirement as of May 22, 2020 and has satisfied all of the
criteria to retire under the Marin County Employee Retirement Association's
retirement plan.
4. Employee has timely notified the City, in writing, by submitting a Letter of Intent
to Retire, attached hereto as Exhibit A, advising the City of his/her desire to
participate in the City's Retirement Program and has been accepted for
participation by the City Manager.
5. By opting to participate in the Retirement Program, Employee agrees to all the
terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
below and for other valuable consideration, receipt of which is hereby acknowledged,
the parties agree as follows:
1. Effective Date. This Agreement shall become effective and irrevocable by either
party upon the expiration of seven (7) calendar days after this document is signed by
both parties, in accordance with the revocation period set forth in paragraph 6(e)
below ("Effective Date").
2. Terms of Retirement Program.
a. In consideration for voluntarily retiring from the City between May 25, 2020
and August 31, 2020 (last day on payroll to be no later than August 31, 2020),
Employee shall receive a cash contribution based on years of service with the
City as of the Employee's retirement effective date. The retirement cash
contribution amount shall be calculated by multiplying the employee's number
of completed years of City of San Rafael service, as of the employee's
retirement effective date, by one week's base pay, up to a maximum of
$30,000. Based on this calculation, the Employee shall receive $30,000. This
one-time lump sum cash contribution is not considered compensable
earnings for the purposes of calculating retirement.
b. The City Manager is authorized to extend Employee's retirement date, after
consulting with the Employee, under the Retirement Program to meet the
needs and objectives of the City. No appeal of the City Manager's decision
shall be permitted.
c. Employee further acknowledges that, in exchange for the consideration
provided herein, Employee is voluntarily retiring from City employment and,
therefore, ineligible for unemployment compensation through the California
Employment Development Department.
d. Employee shall receive all benefits to which the Employee is normally entitled
upon retirement from employment with the City.
3. Employee Representations Regarding Claims. Employee represents there are no
actions at law or administrative proceedings currently pending which concern
allegations based on Employee's hiring, retention, or compensation by the City, or
the termination of Employee's employment, or based on any act or failure to act by
the City affecting, involving, or relating to Employee and his/her employment with the
City.
4. No Admission of Liability. This Agreement and compliance with this Agreement
shall not be construed as an admission of any liability by either Employee or the City
of any unlawful or wrongful acts by either party, individually or collectively. The
parties disclaim liability as to or for any and all wrongful acts against each other.
5. Waiver and Release. In exchange for the valuable consideration and compromises
set forth in this Agreement, Employee, on behalf of himself/herself and his/her
representatives, family members, heirs, administrators, executives, successors,
assigns and anyone claiming through Employee, hereby releases and forever
discharges the City, its City Council members, officers, directors, agents, and
employees (whether former or current), volunteers, successors, assigns, insurers,
attorneys, consultants, affiliates, and/or related organizations or entities (all hereafter
referred to singularly and collectively as "the parties hereby released"), from any and
all actions, claims, judgments, obligations, damages, and liabilities of any kind and
character which Employee may now have or has ever had arising in any way from or
during Employee's employment with the City, including but not limited to:
a. Any and all claims for wages, salary, paid leave, and/or benefits;
b. Any grievance or other administrative remedy deriving from City policy;
c. Any and all claims for wrongful or constructive discharge and/or
reinstatement;
d. Any and all claims relating to any contracts, express or implied, or breach of
the covenant of good faith and fair dealing;
e. Any and all tort claims of any nature, including but not limited to, fraud, deceit,
misrepresentation, negligent misrepresentation, defamation, invasion of
privacy, negligent or intentional infliction of emotional distress;
Any and all claims of discrimination, harassment, retaliation or failure to
accommodate under federal, state or municipal statute or ordinance, including
but not limited to, race, national origin, age, gender, mental or physical
disability, medical condition, sexual orientation, marital status, religion, or
otherwise, and including any claims under the United States Constitution,
California Constitution, California Fair Employment and Housing Act, Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. section 1981, 42
U.S.C. section 1983, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Older Workers' Benefit Protection Act,
the Equal Pay Act, the Family Medical Leave Act, the California Family Rights
Act, the Fair Labor Standards Act, the California Labor Code, and any other
laws and regulations relating to employment; and
g. Any and all claims for attorney's fees or costs.
Employee hereby further agrees that this Agreement shall operate as a complete bar
against any and all litigation, charges, grievances now pending or contemplated by
Employee or which might at any time be filed including, but without limiting the
foregoing, any and all matters arising out of or in any manner whatsoever connected
with Employees employment with and separation of employment from the City up to the
date of Employee's separation from the City.
Employee's Initials: �s -
6. Older Workers Benefit Protection Act. For an Employee 40 years or older and in
accordance with the Older Workers Benefit Protection Act, covered Employee
acknowledges having been advised by this writing of the following:
a. Employee acknowledges having been advised to consult an attorney of
his/her choosing before executing this Agreement.
b. Employee acknowledges that the compensation provided in this Agreement
constitutes independent consideration for the waiver herein and is in addition
to any other payment to which Employee is entitled.
c. Employee acknowledges that this Agreement is written in a manner designed
to be understood by Employee and that Employee has read the Agreement
carefully and understands its terms.
d. Employee acknowledges that he/she has up to forty-five (45) calendar days
from the date of receipt of this Agreement to consider whether to accept it,
although Employee may accept it at any time within those 45 calendar days. If
Employee accepts and signs the Agreement before the end of the 45 -day
period, Employee acknowledges doing so voluntarily and waives any further
period for consideration.
e. Employee has the right to revoke this Agreement within seven (7) calendar
days after signing this Agreement. This Agreement shall not become effective
or enforceable until the seven (7) day revocation period has expired. In the
event that Employee revokes pursuant to this section, the entire Agreement
shall be void and ineffective.
Employee's Initials (40 years or older): Gdc!/
7. Specific Waiver of Section 1542 of the California Civil Code. Employee
acknowledges that he/she has read, and hereby waives the application of Section
1542 of the Civil Code, which provides:
"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
DEBTOR."
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Employee understands and acknowledges that the significance and consequence of
this waiver of Section 1542 of the Civil Code is that, even if he/she should eventually
suffer or discover damages arising out of Employee's employment with the City,
Employee will not be permitted to make any claim for those damages. Furthermore,
Employee acknowledges that he/she intends these consequences even as to claims
that may exist as of the date of this release but which Employee does not know exist,
and which, if known, would materially affect Employee's decision to execute this
release, regardless of whether Employee's lack of knowledge is the result of ignorance,
oversight, error, negligence, or any other cause.
Employee's Initials: dL7�
8. Protected Rights. Employee and City agree that nothing in this Agreement is
intended to or shall be construed to affect, limit or otherwise interfere with any non-
waivable right of Employee under any Federal, state or local law, including but not
limited to, the right to enforce this Agreement and recover for any breach of it, rights
under California Labor Code Sections 2802 and 2804, the right to file a charge or
participate in an investigation or proceeding conducted by the Equal Employment
Opportunity Commission ("EEOC") or to exercise any other right that cannot be
waived under applicable law. Employee is releasing, however, his/her right to any
monetary recovery or other relief should the EEOC or any other agencies pursue
claims on his/her behalf. Further, should the EEOC or any other agency obtain
monetary recovery or other relief on Employee's behalf, Employee assigns to City all
rights to such monetary recovery or other relief.
Employee's Initials:
9. Return of Property. Unless otherwise authorized by the City, on the last day of
employment with the City, Employee shall return all City property in Employee's
possession or control, including without limitation any laptop computers, keys, credit
cards, cellular telephones, files and documents (and all copies thereof.)
10. Construction of the Agreement. Each party agrees that in any construction to be
made of this Agreement, the same shall not be construed against any party on the
basis that the party was the drafter.
11. No Precedent. The parties specifically acknowledge and agree that this Agreement
is a compromise which shall not operate, nor be considered, as evidence of a
practice or past practice of the City or a precedent in the future.
12.Acknowledgement of Voluntary Execution. Employee has carefully read this
Agreement and understands the contents. Employee has been afforded the
opportunity to consult with his/her own attorney regarding this Agreement.
Employee freely, knowingly, and voluntarily enters into this Agreement without any
duress or undue influence on the part of any person released by this Agreement, or
by any third party. Employee warrants and represents that he/she has the mental
and emotional capacity to understand the provisions of this Agreement and its
effects upon his/her legal rights.
Employee's Initials:
13. Partial Invalidity. In the event that any of the covenants, duties or restrictions of
this Agreement are found to be illegal, invalid or unenforceable, such provision, if
possible, shall be construed so as to render the provision legal, valid and
enforceable. In the event such provision cannot be amended or construed to be
legal, valid and enforceable, such provision shall be deemed deleted and the
remainder of this Agreement shall remain in full force and effect.
14. Entire Agreement. This Agreement sets forth the entire agreement between the
parties and supersedes any and all prior agreements or understandings, written or
oral, between the parties pertaining to the subject matter hereof. No other promises
or agreements shall be binding upon the parties with respect to the subject matter of
this Agreement unless contained herein or separately agreed to in writing by the
parties. This Agreement may not be modified except by a writing signed by
Employee and the City Manager.
15 -Applicable Law. This Agreement shall be governed by the laws of the State of
California, and shall in all respects, be interpreted and enforced under the laws of
the State of California. Litigation arising out of or connected with this Agreement
shall be instituted and maintained in the courts of Marin County in the State of
California, and the parties consent to jurisdiction over their person and over the
subject matter of any such litigation in such court, and consent to service of process
issued by such court.
16. No Assignment. Employee warrants that he/she has not assigned, transferred, nor
purported to assign or transfer, any claim(s) Employee may have against the City,
and he/she will not assign or transfer, nor purport to assign or transfer, any claim(s)
he/she may have against the City. The City warrants that it has not assigned,
transferred nor purported to assign or transfer any claim(s) it may have against
Employee and that it will not assign nor purport to assign or transfer hereafter any
claim(s) it may have against Employee.
17. Waiver. Waiver by either party of any default, breach or condition precedent shall
not be construed as a waiver of any other default, breach or condition precedent or
any other right hereunder.
18. Section Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
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19. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall, for all purposes, be deemed an original and all such counterparts,
taken together, shall constitute one and the same instrument.
20.Attorney's Fees and Costs. Each party shall bear all attorney's fees and costs
arising from and/or in any way related to the actions of its own counsel with regard to
the negotiation and creation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year written below in the City of San Rafael, California.
C L
By. By. J�--
Emplo &e J'm S hutz
Ci anager
Date: -:3-unC., - I , Z U2n
APPROVED AS TO FORM:
By.
Robert F. Epstein, Cit§ Attorney
7
Date: 6 --Z.-- lZe?z
ATTEST:
By: � - /Vztr.
n✓ Lindsay Lara, City Clerk
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CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Click here to enter text.
Project Manager: Click here to enter text.
Extension: lick hereto enter text.
Contractor Name: Click here to enter text.
Contractor's Contact: Click here to enter text.
Contact's Email: Click here to enter text.
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESP BLE
DESCRIPTION
COMPLETED
REVIEWER
DEPARTIVIE
DATE
Check/Initial
1
Project Manager
a. Email PINS Introductory Notice to Contractor
Click here to
❑
enter a date.
b. E it contract (in Word) & attachments to City
Click here to
Atty c araine.Gittens@cityofsanrafael.org
enter a date.
❑
2 City Attorney
a. Review, revis , nd comment on draft agreement
Click here to
and return to Proj Manager
enter a date.
Elb.
Confirm insurance requi ents, create Job on
Click here to
PINS, send PINS insurance no ' to contractor
enter a date.
❑
Forward two (2) originals of final agre ent to
3 Project Manager
Click here to
❑
contractor for their signature
enter a date.
When necessary, * contractor -signed agreement
4 Project Manager
El N/A
agendized for Council approval
*PSA > $75,000; or Purchase > $75,000; or
❑
Public Works Contract > $175,000
Click here to
Date of Council approval
enter a date.
PRINT
CONTINUE ROUTING PROCESS WITH HARD COPY
5 Project Manager —
Forward signed -e- original agreements to City
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;Ath printed copy of this routing form
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6
City Attorney
Review and approve hard copy of signed
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citytorneyview
an pprove i rance in S, and bon
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City Manager/ Mayor
Agreement executed by Council authorized official
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City Clerk
Attest signatures, retains original agreement and
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forwards copies to Project Manager�-