Complete City Attorney seperation agreement

SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS This Separation
Agreement and Release of All Claims (the
”
Agreement
”
), for reference dated, April 20, 2005, is by and between the
City of Morgan Hill for itself and for all of its elected
officials, officers, managers, employees and council members in its
and their official and personal capacities, and each of them, (
”
the CITY
”
), on the one hand, and Helene Leichter, for herself and her
agents, representatives, heirs and assigns (
”
MS. LEICHTER
”
), on the other hand.
SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS

This Separation Agreement and Release of All Claims (the “Agreement”), for reference dated, April 20, 2005, is by and between the City of Morgan Hill for itself and for all of its elected officials, officers, managers, employees and council members in its and their official and personal capacities, and each of them, (“the CITY”), on the one hand, and Helene Leichter, for herself and her agents, representatives, heirs and assigns (“MS. LEICHTER”), on the other hand.

RECITALS

A. The purpose of this Agreement is to settle and compromise, fully and completely, all possible statutory, contractual, or common law claims of any kind asserted by MS. LEICHTER, including but not limited to any claims arising from her employment with the City, or her separation therefrom (the “CLAIMS”) against the CITY without admission of liability, or of any act, claim or defense.

B. The CITY and MS. LEICHTER acknowledge that they are entering into this Agreement after consulting with counsel. This settlement shall not be construed as an admission of liability by any party for any purpose.

C. Upon execution by both parties, this agreement is intended to supersede and revoke all prior written agreements including, but not limited to Ms. Leichter’s current employment agreement and all amendments thereto.

NOW THEREFORE, in consideration of the covenants and promises contained in this Agreement and other good and valuable consideration, and to avoid protracted litigation, it is hereby agreed among the parties as follows:

AGREEMENT    

1.Denial of Liability or Wrongdoing. The CITY specifically denies any

liability to or wrongful acts against MS. LEICHTER, on the part of itself, and/or other of its elected officials, officers, directors, supervisors,

employees or council members for the CLAIMS.

MS. LEICHTER acknowledges that the CITY has denied and continues to deny that it engaged in any unlawful or wrongful conduct against her and that this Agreement shall not in any way be construed as an admission by the CITY of any unlawful or wrongful acts whatsoever against MS. LEICHTER. The CITY expressly denies any violation of any policy or procedure, or of any state or federal law or regulation.

1. Agreement Not an Admission. This Agreement shall not be admissible

in any proceeding as evidence of or any admission by the CITY of any violation of any law or regulation or wrongful act. This Agreement may, however, be introduced in any proceeding to enforce this Agreement.

1. Warranties.

(a) MS. LEICHTER specifically represents that she has no pending complaints or charges against the CITY with any state or federal court, or any state or federal agency, division or department, based on any events occurring prior to the date of execution of this Agreement.

(b) MS. LEICHTER further represents that she will not in the future file or instigate the filing of any lawsuit in any state or federal court or any proceeding before any state or federal agency, department or division (save and except for the California Workers’ Compensation Appeals Board should MS. LEICHTER elect to file a claim for workers’ compensation insurance benefits, which right is not waived), claiming that the CITY has violated any statutory, contractual, or common law obligation including, but not limited to, the California Fair Employment & Housing Act or Title VII of the Civil Rights Act of 1964, in connection with the .,. CLAIMS.  

(c) MS. LEICHTER represents and warrants that she has not assigned or subrogated any of her rights, claims or causes of action, including any claims referenced in this Agreement, or authorized any other person or entity to assert such claims on her behalf.

4.        Settlement Terms.

(a) MS. LEICHTER agrees to submit to the City Council a letter resigning her employment with the CITY, effective July 2, 2005, attached hereto as Exhibit A;

(b) The CITY shall pay to MS. LEICHTER the sum of $215,000 (the “settlement sum”), 75% of which, or $161,250, as compensation for alleged physical injury or sickness. The CITY agrees that it shall make no state or federal withholding deductions from this sum of $161,250, and shall issue an IRS form 1099 Misc. in connection with this payment. The balance of the settlement sum, or $53,750, is payment, in part, for her salary, benefits and PERS contributions until July 2, 2005, as more fully described below, as well as future wage loss. The sum of $53,750 shall be subject to customary state and federal withholding deductions, and an IRS form W2 shall be issued for this amount. The $161,250 shall be paid in a lump sum, payable and delivered to MS. LEICHTER’S counsel no later than April 28, 2005.

(c) Through July 1,2005, the CITY will maintain MS. LEICHTER on the CITY’S payroll at her current salary and benefits, with customary withholdings. The CITY also agrees to make all PERS contributions, both employer and employee contributions, on behalf of MS. LEICHTER until July 1, 2005. All salary, benefits and PERS contributions paid by the CITY will be set off against the Settlement Sum of $215,000.00, described above. After the CITY deducts the amount payable to MS. LEICHTER for current salary and benefits through July 1, 2005, MS. LEICHTER will also receive the balance of the taxable portion of the payment on April 28, 2005.

(d) Although she will remain on the payroll through July 1,2005, MS. LEICHTER will be relieved of all job responsibilities and authority effective close of business April 20, 2005, except as provided in subparagraph (i) below, and thereafter she will be considered to be on leave with pay;

(e) During her leave with pay with the CITY pursuant to subparagraph 2(c) above, MS. LEICHTER will be allowed to perform work for others, either for compensation or on a pro bono basis.

(f) MS. LEICHTER acknowledges that she is responsible for all tax reporting obligations, if any, with respect to the designation of all or part of the Settlement Proceeds as damages attributable to physical injury or sickness. MS. LEICHTER further agrees to indemnify and hold the CITY harmless from any and all losses, costs, expenses, interest, payments or penalties (“LOSSES”), if any, incurred by the CITY as a result of the CITY not making state and federal withholding deductions from the amount set forth in Subparagraph (b), above, or as a result of the CITY not reporting such amount as wages to any taxing authority, in the event said amount should later be deemed to be taxable to MS. LEICHTER so long as the LOSSES are not the result of negligence or misconduct of the CITY in connection with its reporting obligations. The CITY agrees to notify MS. LEICHTER within seven (7) days if any taxing authority makes a claim for any taxes, i        penalties, interest or payments arising out of the payment of the amount, so that she will have an opportunity to defend against any such claim, and to cooperate in MS. LEICHTER’S defense of such claim,

(g) In addition to the Settlement Sum, the CITY shall credit and pay MS. LEICHTER for accrued vacation or PTO leave in the amount of $18,055.80 (255.2778 hours at $70.73/hour) as of April 20, 2005. While on paid leave until July 2, 2005, MS. LEICHTER will not accrue any additional leave benefits, such as vacation, P.T.O., sick leave, or any other leave, or be entitled to any salary increases or other compensation above the amounts listed in Exhibit B attached hereto.

(h) The CITY and MS. LEICHTER have agreed upon the attached press release. No other statement shall be issued or made by the CITY or its employees, officials or representatives, or MS. LEICHTER, concerning the CLAIMS, except by mutual agreement of the CITY’S subcommittee consisting of Mayor Kennedy and Councilmember Tate, and MS. LEICHTER.

(i)Pending City Matters. MS. LEICHTER has submitted to the CITY a written status report of all pending legal matters being handled by her, and she agrees to make herself reasonably available for consultation with Dan Siegel regarding those matters.

(j) Office Furniture: The CITY acknowledges and agrees that the furniture in MS. LEICHTER’S office at City Hall belongs to MS. LEICHTER and that the CITY will cooperate with MS. LEICHTER in her removal of same.

1. Release of Known and Unknown Claims. It is understood and agreed by the parties that in consideration of the mutual promises and covenants contained in this Agreement, and after consultation with counsel, MS. LEICHTER irrevocably and unconditionally releases and forever discharges the CITY from any and all statutory or contracted employment claims of any kind, including but not limited to, claims that she was retaliated against or sexually harassed while employed by the CITY up to and including the date of this Agreement.

2. Waiver of California Civil Code Section 1542. MS. LEICHTER does hereby expressly waive and relinquish all rights and benefits afforded by California Civil Code section 1542 in relation to the CLAIMS and does so understanding and acknowledge the significance and consequences of such specific waiver of California Civil Code section 1542.

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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

Thus, notwithstanding the provisions of section 1542, MS. LEICHTER expressly acknowledges and agrees that this Agreement is also intended to include in its effect, without limitation, any claim of sexual harassment, or any other statutory, contractual, retaliation or common law claim of any kind that could be based upon facts of which she is currently unaware but which occurred prior to the effective date of this Agreement, and that this Agreement contemplates the extinguishment of those claims..

MS. LEICHTER acknowledges and agrees that she may later discover facts different from, or in addition to, those she now knows or believes to be true in entering into this Agreement. MS. LEICHTER agrees to assume the risk of the possible discovery of additional or different facts, including facts which may have been concealed or hidden, and agrees that this Agreement shall remain effective regardless of such additional or different facts. MS. LEICHTER further acknowledges and agrees that the CITY had no duty to disclose any fact to her prior to the execution of this Agreement.

1. City and Council Members* Waiver and Release. Notwithstanding the provisions of Civil Code section 1542, the City, the City Council and each member thereof, hereby releases and discharges fully MS.LEICHTER and her representatives from any and all charges, complaints, claims, liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereafter referred to as “CLAIM” or “CLAIMS”) which the CITY, the City Council or any member thereof at any time heretofore had or claimed to have or may have or claim to have regarding events that have occurred as of the date of this Agreement, including, without limitation, any and all claims related or in any manner incidental to MS. LEICHTER’S employment with the CITY or separation therefrom.

1. Age Discrimination in Employment Act Waiver. MS. LEICHTER represents and agrees that:      

(a) She has had an opportunity to consult an attorney before signing this agreement;

(b) she has read this Agreement in full and understands all of the terms and conditions set forth herein;

(c) she knowingly and voluntarily agrees to all of the terms and conditions set forth herein and intends to be legally bound by them;

(d) she waives the opportunity to consider this Agreement for at least 21 days before signing it;

(e) she may rescind this Agreement for seven days after signing it; and

(f) this Agreement will not become effective or enforceable until seven days after she has signed it.

The parties agree that any change made to the Agreement offered to MS. LEICHTER on April 20, 2005, whether material or immaterial and regardless of the reason for the change, will not restart the running of the twenty-one (21) day period described above.

1. City’s Duty To Indemnify and Defend. The CITY agrees to indemnify and defend MS. LEICHTER for any claims made against her in accordance with state and/or federal law.

2. Public Document; Confidentiality of Circumstances. MS. LEICHTER and the CITY acknowledge that this Agreement, as a contract between the CITY and the City Attorney, is a document covered by the California Public Records Act and the Brown Act and must be made public upon request. MS. LEICHTER and the CITY represent and agree, however, that they will not otherwise disclose the facts, circumstances and negotiations underlying this Agreement unless such, disclosure is made pursuant to a valid subpoena or court order, served on the CITY or MS. LEICHTER, or to a member of MS. LEICHTER’S immediate family, or to her legal or financial representatives or advisors. Should either party become aware of such a subpoena or court order, written notice will be provided to the other party within forty-eight (48) hours of receipt to afford the opportunity to take whatever legal action deemed necessary by the other party.

3. Statements Regarding the City and/or City Council. Ms. Leichter, as an officer of the court, is bound by the State Bar Rules of Professional Conduct and by provisions of the Business & Professions Code, and agrees that she shall not make any statements orally or in writing that would violate these provisions, including but not limited to Rule 3-310, Rule 3-600 or Business and Professions Code Section 6068. Ms. Leichter agrees not to make any statements orally or in writing that discredit in any way the conduct or reputation of the City or City Council.

4. Statements Regarding Leichter. The City and the members of the City Council agree not to make statements orally or in writing, either themselves or through third parties, that discredit in any way the conduct or reputation of MS. LEICHTER. . The City further agrees that any requests for references from prospective employers of Ms. Leichter shall be responded to solely by Dennis Kennedy, who agrees to verify her employment by the CITY, to disclose only the dates of MS. LEICHTER’S employment, her title, her final annual salary and benefits, and that she voluntarily resigned her position with the CITY.

5. Advice of Counsel: MS. LEICHTER acknowledges that she has consulted with an attorney respecting this Agreement. To the extent that MS. LEICHTER has signed the Agreement without obtaining the advice of counsel, MS. LEICHTER acknowledges that she has not been subject to any undue or improper influence interfering with the exercise of her free will in deciding whether to execute this Agreement and MS. LEICHTER acknowledges that she has signed this Agreement voluntarily with a full understanding of the Agreement and its effect upon her legal rights.

6. Arbitration. Any and all disputes, controversies or issues arising under or in any way relating to the CLAIMS, or the interpretation, application or enforcement of this Agreement, shall be settled by final and binding arbitration under the auspices and rules of the American Arbitration Association. Any such arbitration must be filed in Morgan Hill, California, and the then prevailing laws of the State of California, including but not limited to those laws regarding arbitrability, shall control, except where federal law governs. The parties agree that the arbitrator shall have the authority, in his or her discretion, to award reasonable costs and attorney’s fees to the prevailing party, The award of the arbitrator is to be final and binding and enforceable in any court of competent jurisdiction and shall be based upon a written opinion.

1 5 . Governing Law. This entire Agreement shall be governed by the laws of the State of California, applicable to contracts executed in and to be performed entirely within that state.

1 6. Ambiguities. Attorneys for both parties have participated in the

negotiation of this Agreement andj thus, it is understood and agreed that the general rule that ambiguities are to be construed against the drafter shall not apply to this Agreement. In the event that any language of this Agreement is found to be ambiguous, each party shall have an opportunity to present evidence as to the actual intent of the parties with respect to any such ambiguous language.

1. Waiver. No waiver by any party of any breach of any term or provision of this Agreement shall be a waiver of any preceding, concurrent or succeeding breach of this Agreement or of any other term or provision of this Agreement. No waiver shall be binding on the part of, or on behalf of, any other party entering into this Agreement.

1 8. Countemarts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. Facsimile signatures, followed by the original signature within 7 days will be considered binding.

18.1    The text herein shall constitute the entire agreement between the parties.

18.2   The Agreement shall be binding and inure to the benefit of the heirs at law and executors of MS. LEICHTER.

18.3     This Agreement shall become effective on the latest date listed below.

18.4    If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid, or unenforceable, the provision, or portion thereof, shall be deemed severable and shal! not be effective. The remainder of this Agreement shall remain in full force and effect.

18.5     The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement. In particular, the CITY represents that Mayor Kennedy has been authorized to execute this Agreement on behalf of the CITY, Ed Tewes and each member of the City Council, or other elected official, and that the release shall benefit and be effective against each of them.

18.6     This Agreement constitutes the entire agreement between the parties and supersedes any previous Agreements, oral or written. This Agreement may be modified or provisions waived only by a subsequent mutual written agreement executed by CITY and MS. LEICHTER.

THE SIGNATORIES HAVE CAREFULLY READ THIS ENTIRE AGREEMENT. ITS CONTENTS HAVE BEEN FULLY EXPLAINED TO THEM BY THEIR ATTORNEYS. THE SIGNATORIES FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS AGREEMENT. THE ONLY PROMISES MADE TO ANY SIGNATORY ABOUT THIS AGREEMENT, AND TO SIGN THIS AGREEMENT, ARE CONTAINED IN THIS AGREEMENT. THE SIGNATORIES ARE SIGNING THIS AGREEMENT VOLUNTARILY.

PLEASE READ CAREFULLY

THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS.