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de Robles (the "City") and Lisa Solomon aka Lisa Chitty ("Employee") (collectively the "Parties"). This Agreement is effective as set forth herein. This Agreement is made with
reference to the following facts, among others. FACTS A. Employee has been permanently employed by the City since August 1, 1988.
Employee currently occupies the position of Chief of Police with the City's Police Department. B. Employee desires to leave employment, due to recent events which she
believes, through no fault of either party, have caused damage to her reputation and other adverse impacts. C. As such, the Parties desire to resolve all issues related to her employment
without further destabilization of City or police department operations or disruption in the police department's mission to serve the community. NOW, THEREFORE, City and Employee, in consideration of the mutual covenants and agreements herein, agree as follows: AGREEMENT 1. Separation. Employee hereby irrevocably relinquishes her employment as Chief of Police, and City hereby accepts and relies upon Employee's voluntary separation. Employee's separation from employment is effective on April 2, 2012 (the "Separation Date"), and Employee may seek a peace officer identification certificate under Penal Code section 25455.
Compensation A. In consideration of the releases and promises made herein, if Employee
executes this Agreement, and does not revoke it as provided in Section 13 prior to the Effective Date, the City will provide payment to Employee in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) ("'the Settlement Amount") allocated as set forth below.
the Settlement Amount is deemed by the Parties to be potential future wages ("the Wage Portion"). Employee expressly agrees that such payment includes compensation for all Such payment will be made in one lump
accrued vacation, holiday, and administrative leave.
sum within five (5) business days of the Effective Date of this Agreement, and shall be subject to all applicable payroll taxes and withholdings.
The balance of the Settlement Amount, in the amount of Two Hundred
Thirty Thousand Five Hundred Dollars ($230,500.00) for non-wage related amounts attributable to, among other things, damage to reputation through no fault of either party, shall be paid by City within five (5) business days of the Effective Date of this Agreement by check made payable to Lisa Chitty. B. Employee's health benefits will cease on the last day of April 2012. At that
time, Employee will be provided with notice of her rights to obtain continued coverage (at her own expense) under COBRA. C. If Employee obtains a PERS retirement within twelve (12) months of the
Separation Date, Employee shall be eligible for post-retirement medical pursuant to the City's Retiree Medical Expense Reimbursement policy. D. City makes no representations as to whether there are any tax consequences
associated with this Agreement. The Parties agree that the determination of the tax consequences from the payments described in this Agreement (and the satisfaction of any tax obligations related to monies received under this Agreement) is the sole responsibility of
Employee and her attorneys or accountants. Employee further agrees that she shall be solely responsible and liable for any income or other tax consequences related to the payment of consideration hereunder under federal and state law, and Employee hereby agrees to release and indemnify City with regard to any tax liability arising from the payment of the Settlement Amount. The Parties agree that City will withhold applicable payroll taxes and withholdings from the Wage Portion of the Settlement Amount, and will cause to be issued an IRS Form 1099 to Lisa Chitty to reflect payment of the balance of the Settlement Amount 3. Property and Equipment On or before April 2, 2012, Employee shall return to City all City property she has had in her possession or control, including but not limited to police badges, weapons, cellular phones, credit cards, entry cards, keys (to any buildings or vehicles), identification badges, and computer data. 4. Waiver of DiscriminationlHarassmentlRetaIiation Claims
Employee understands and acknowledges that Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Civil Rights Act of 1991, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, the Americans with Disabilities Act of 1990, the Federal Family and Medical Leave Act of 1993, the California Family Rights Act of 1991, the California Fair Employment and Housing Act, and other statutes provide Employee with the right to bring an action against the City if Employee believes she has been discriminated against based on race, ancestry, creed, color, religion, sex, marital status, national origin, age, status as an individual who has filed a claim for workers; compensation benefits or who has sustained an industrial injury, status as a veteran of the Vietnam era, physical or mental handicap, and/or disability. Employee understands the rights afforded to her under these Acts and agrees that she will not bring any action against the City or any of its City Council members, officers, agents, directors, employees, or representatives based on any alleged violation(s) of these Acts. Employee hereby waives any right to assert a claim for any 3
relief under these or similar Acts, including but not limited to back pay, attorney fees, damages, reinstatement, and/or injunctive relief, arising out of her employment with City or the separation from such employment. Employee also waives any rights she may have had under the California Peace Officers Bill of Rights. However, nothing in this release shall be interpreted to waive Employee's statutory rights under the California Labor Code and the California Government Claims Act regarding defense of, and/or indemnity for, claims relating to acts committed within the course and scope of her employment. 5. Waiver of Age Discrimination Claim Employee understands and acknowledges that the Age Discrimination in Employment Act of 1967, as amended, provides Employee the right to bring a claim against the City if Employee believes that she has been discriminated against on the basis of age. Employee understands the rights afforded under this Act and agrees that she will not bring any action against the City or any of its City Council members, officers, agents, directors, employees, or representatives based on any alleged violation(s) of the Act. Employee hereby waives any right to assert a claim for relief under this Act, including but not limited to back pay, attorney fees, damages, reinstatement, and/or injunctive relief arising out of her employment with the City or the separation from such employment. 6. Waiver of Civil Code Section 1542 It is understood and agreed that the releases as referred to herein are full and final releases by each party of the other, and that such full and final releases include, without limitation, all unknown and unanticipated claims, injuries, debts, or damages, as well as those now known or disclosed. With respect to all claims, each party expressly waives the
provisions of California Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or her settlement with the debtor." In that connection, each party realizes and acknowledges that one or more of the Claims may include losses sustained by that party on account of the other that are presently unknown or unsuspected, and that such losses as were sustained may give rise to additional losses and expenses in the future which are not now anticipated. Nevertheless, each party acknowledges that this release has been negotiated and agreed upon and that in consideration for the rights and benefits under this Agreement, the parties intend and hereby do release, acquit and forever discharge each other from any and all Claims, including those that are unknown, unsuspected or unforeseen or that are presently unknown and unanticipated. However,
nothing in this release shall be interpreted to waive Employee's
statutory rights under the
California Labor Code and the California Government Claims Act regarding defense of, andlor indemnity for, claims relating to acts committed within the course and scope of her employment. 7. Release of Claims/Covenant A. Not to Sue
Employee represents that, other than a pending workers' compensation claim
(Claim # CJP032182PA), she has not filed any complaint, grievance, claim, or action against the City or any of its City Council members, officers, agents, directors, employees, or representatives with any state, federal, or local agency, board, arbitrator, or court based on any matters arising out of her employment with the City andlor her separation from City employment, and that she will not do so at any time hereafter. Employee further represents and warrants that she has not sold, assigned or transferred, or purported to sell, assign or transfer, and shall not hereafter sell, assign or transfer, any obligations, liabilities, demands, claims, costs, expenses, debts, controversies, damages, rights, actions, or causes of action released pursuant to this Agreement. Employee also agrees to defend, indemnify and hold City harmless against any obligation, liability, demand, claim, cost, expense (including but
not limited to attorneys' fees incurred), debt, controversy, damage, action or cause of action based on, arising out of or in connection with any such sale, transfer or assignment or purported sale, transfer or assignment
Excepting the pending workers' compensation claim referenced above or as
otherwise set forth in this Agreement, Employee hereby releases and forever discharges the City, its City Council members, officials, directors, agents, attorneys, servants, employees, consultants, successors, assignees, and related entities from any and all claims, liabilities, demands, causes of action, costs, expenses, damages, indemnities, and obligations of every kind, in law, equity or otherwise, known or unknown, arising out of or in any way related to Employee's City employment or her separation from City employment, including but not limited to any and all rights of appeal from separation conferred by federal, state or local law. C. Employee further covenants not to sue or file any complaint, grievance, claim
or action at any time hereafter based on any matters arising out of or in any way relating to her employment with the City, or separation from City employment, that could have been filed as of the Effective Date of this Agreement. S. No Admission of Liabilitv This Agreement and compliance with it shall not operate or be construed as an admission by either party of any liability, misconduct, or wrongdoing whatsoever against the other or any other person; nor as an admission by the City of any violation of the rights of Employee or any other person; nor as a violation of any order, law, statute, duty, or contract whatsoever against Employee or any other person. Rather, the Parties expressly deny any liability to one another. 9. Mutual Drafting and Governing Law; Costs of Agreement This Agreement shall be deemed to have been jointly drafted by the Parties and shall be governed by and construed in accordance with the laws of the State of California. Each
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party shall bear its own fees and costs associated with the negotiation and preparation of this Agreement. 10. Entire Agreement This Agreement constitutes the entire agreement between Employee and the City. No other promise or inducement has been offered for this Agreement. Any amendments to this Agreement must be in writing, signed by duly authorized representatives of both the City and Employee, and must state that the parties intend to amend the Agreement. 11. Severability and Waiver A. The invalidity or unenforceability of any provision of this Agreement shall in
no way affect the validity or enforceability of any other provision of this Agreement. B. Any of the terms or conditions of this Agreement may be waived at any time
by the party entitled to the benefit thereof, but no such waiver shall affect or impair the right of the waiving party to require observance, performance or satisfaction either of that term or condition as it applies on a subsequent occasion or of any other term or condition hereof. 12. Choice of Law; Venue of Actions; Costs and Fees This Agreement shall be interpreted according to the laws of the State of California. Venue of any legal action shall be in San Luis Obispo County. If any legal action is instituted to enforce any provision of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of its provisions, the court shall award the
prevailing party reasonable attorneys' fees and other litigation costs incurred in that action, in addition to any other relief to which the prevailing party may be entitled. Nothing in this section shall prevent the parties from mutually agreeing to binding arbitration of any dispute, in which case the arbitrator may award attorneys' fees and litigation costs to the prevailing as described above.
Right of Review/Revocation Employee acknowledges that she has been encouraged to seek the assistance of
counsel in negotiating the terms of this Agreement and that she has been provided with the opportunity to consult with an attorney prior to signing this Agreement. Pursuant to the Age Discrimination in Employment Act and the Older Workers' Benefit Protection Act, the City hereby notifies Employee that she has up to twenty-one (21) days within which to consider whether she should sign this Agreement, although she may sign this Agreement in less time if she so chooses. In addition, should Employee choose to sign the Agreement, she shall have seven (7) days following the date on which she signed the Agreement to revoke this Agreement. If Employee chooses to revoke this Agreement pursuant to this paragraph, Employee must do so in writing, delivered to the City at the address specified in Section 15 within the seven (7) day revocation period. This Agreement does not become effective until the eighth day after signature when this seven-day period has elapsed without Employee's revocation of this Agreement (the "Effective Date"). 14. Voluntary Execution of Agreement Employee represents that she has carefully read this entire Agreement and that she knows and understands its contents. Employee has had the opportunity to receive independent legal advice from attorneys of her choice with respect to the preparation, review, and advisability of executing this Agreement. Employee further represents and acknowledges that she has freely and voluntarily executed this Agreement after independent investigation and without fraud, duress, or undue influence, with a full understanding of the legal and binding effect of this Agreement and with the approval of her legal counsel, if any. 15. Notice Any notices or other communications to be given to either party pursuant to this Agreement shall be in writing and delivered personally or by U.S. Mail, postage prepaid, addressed to the party at the address set forth below. Notice so mailed shall be deemed 8
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delivered three (3) business days after deposit in the U.S. Mail. Nothing shall preclude the giving of notice by fax, which shall be effective upon receipt of the fax; provided, however, that notice by fax shall be followed by notice deposited in the U.S. Mail as discussed above. CITY City of EI Paso de Robles ATTENTION: City Manager 1000 Spring Street Paso Robles, CA 93446 Lisa Solomon aka Lisa Chitty c/o Gregory Fox Bertrand Fox & Elliot The Waterfront Building 2749 Hyde Street San Francisco, CA 94109
Mutual Non-Disparagement. The parties agree to refrain from any comment that is disparaging of one another.
The parties agree that if Employee or any City representative is called to testify in any administrative or legal proceeding that obligates such witness to testify truthfully, the witness must do so, and no truthful statements made shall be deemed disparagement in violation of this provision .. 17. Confidentiality City agrees that, with respect to third party inquiries, City will release only Employee's dates of employment, positions held, and final salary. Other employment information about Employee (including but not limited to this Agreement) will be released by the City only: (a) with Employee's written consent, (b) to refute or defend a claim initiated by or on behalf of Employee, or (c) as otherwise required by law. The City reserves the right to truthfully respond to inquiries by the City's workers compensation insurance carrier and its agents regarding Employee's workers' compensation claim, as well as to inquiries by any federal or state agency, including but not limited to the U.S. Department of Labor, the
Division of Labor Services Enforcement, and the California Public Employees'
the California Retirement
The Agreement may be executed in two or more counterparts, signature, including via facsimile
or electronically-transmitted which together shall constitute
each of which shall be deemed an original, but all of document. LISA SOLOMON
aka LISA CHITTY
CITY OF EL PASO DE ROBLES
APPROVED AS TO FORM:
CITY OF EL PASO DE ROBLES
FOX & ELLIOTT
Iris P. Yang, City Attorney
By: Greg Fox
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