HomeMy WebLinkAboutAgenda Report - October 19, 2005 K-05AGENDA ITEM &5
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution ratifying settlement agreement with former Electric Utility Director
Alan Vallow, and appropriating funds therefor
MEETING DATE: October 19, 2005
PREPARED BY: Jere Kersnar, Interim Deputy City Manager
RECOMMENDED ACTION: It is recommended that the City Council adopt a Resolution ratifying
a settlement agreement (officially titled "Separation Agreement and
General Release") with former Electric Utility Director Alan Vallow,
and appropriate funds therefor.
BACKGROUND INFORMATION: Mr. Vallow's employment with the City ended August 29, 2005. As
part of the discussions between the City Manager and Mr. Vallow, a
proposed settlement agreement (copy attached) was negotiated
and executed by Mr. Vallow, the City Manager, and the City Attorney, subject to City Council ratification.
Among other provisions, the Agreement calls for severance pay up to six months' salary and health
Insurance benefits through the period of the severance payment (which would end if Mr. Vallow secures
other employment), and for a full and complete release of all potential claims against the City by
Mr. Vallow.
This item was scheduled for the City Council Meetings of September 7 and 21, but was removed prior to
Council consideration. Mr. Vallow has requested that it be brought forward for Council consideration on
October 19, 2005.
FISCAL IMPACT: Funding for the unanticipated expense of the severance pay was not
included in the FY 2005106 Budget. The City Council appropriation for this
purpose, requested as part of this action, will be reflected in Mid -Year
Budget revisions.
FUNDING AVAILABLE: The Council Resolution contains an authorization for appropriation to cover
the additional expense included in the Agreement.
mes R. Krueger, Finance Director
r A. .766&i, tntirim Deputy Ci Manager
Attachment: Separation Agreement and General Release
APPROVED:
, City Manager
RESOLUTION NO. 2005- OR44,Atr
A RESOLUTION OF THE LODI CITY COUNCIL
RATIFYING THE SETTLEMENT AGREEMENT
WITH FORMER ELECTRIC UTILITY DIRECTOR
ALAN VALLOW AND APPROPRIATING FUNDS
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby
ratifies the Separation Agreement and General Release ("Settlement Agreement")
entered into between City Manager Blair King and former Electric Utility Director Alan
Vallow, as shown on Exhibit A attached hereto; and
BE IT FURTHER RESOLVED that the Finance Director is hereby authorized to
appropriate funds as necessary to cover the terms of the Settlement Agreement.
Dated: October 19, 2005
I hereby certify that Resolution No. 2005- was passed and adopted by the
City Council of the City of Lodi in a regular meeting held October 19, 2005, by the
following vote:
AYES: COUNCIL MEMBERS —
NOES: COUNCIL MEMBERS —
ABSENT: COUNCIL MEMBERS —
ABSTAIN: COUNCIL MEMBERS —
SUSAN J. BLACKSTON
City Clerk
2005-
EXHIBIT A
SEPARATION AGREEMENT AND GENERAL RELEASE
I . Purpose of Agreement: The intent of this Separation Agreement and General
Release ("Agreement") is to mutually, amicably and finally resolve and compro .ise all possible
issues wid claims surroLEnding the employment of Allan Vallow ("Employee") with the City of
Lodz ("Employer") and the separation there frons.
2, Ack7aowled, t--iitrettt of At -Will Status; l employee acknowledges that his or lter
ealployment status with Employer has always been at will and that Employee has no preexisting
pt)operty right in his or bar employment or right to a severance package.
3. Separation from Employment and Receipt of Compensation and Benefits:
E nployec's employtnent with Employer will encs, effective the close of business on Monday,
August 29, 2005 ("Separation Date"). F'anployee acknowledges that on the Separation Date,
Employer paid UaLployce, all unpaid salary and unused vacation time, holiday credit, and personal
leave earned through the Separation Date. As of the Separation Date, except as otherwise stated
herein, Employee will no longer be; eligible to receive further payments for wages, salary,
vacation or health insurance benefits. However, Employee will be eligible fol' continuation of
health insurance; benefits at Employee's oMi expense pursuant to the provisions of COBRA, the
exact terms eel which wil.] be provided to Employee in a separate written document.
4. Employer's Consideration for Agreement: In exchange for the release and
agreements that Employee is snaking in this Agreeinent, Employer will provide Employee with a
six .month seve.ranix payment its the amount of Employee's salary at. Employee's filial rate of
I.my, including �tll vacation pay, holiday credit, and personal leave, less all legally required state
and federal withholdings, subject to reduction its set forth in this paragraph_ This Severance
Payment will be paid to Employee in installaic:ttt~s and in a€nounts coinciding with Employers'
usual pay periods. In the event, Ennployee retains new employment during the six month
severance period, testy rvsn7.7.ining severance payiniont will be farlestod as of the date F'mployce
begins his or her new employment. Employee acknowledges and agrees that but for
l snployee's cxs;cutioit of this A- eement, Emplovoe would riot otherwise be entitled to the
benefits described in the parngraph above. Employer shall also provide health insurance benefits
(including medical, dental and vision) to Employee through the actual period of the severance
payment.
5. Employee's Consideration for Agreement: In exchange for the payments and
usndertakint s described in this Agreement, .Employee releases and waives any and all claims,
that lie or she might possibly have against Employer, wheflter Empi yee is aware of thent or
■ani. In legal terms, this means that, .i7ndividnilly and on behalf of his or her representatives,
successors, and assigns, Employee: does hereby completely release and forever discharge;
Finployer, its elected and appointed offiicers, managers, agents, and past and present employees
"'tbu Releasees") From all Claims, rights, demands, actions, obligations, and causes of action of
any and every kind, nat.us,e and character, known or unknown, which Employ" may now have, or
h,as ever had, c7,gainst Rcleasees arisirng troM or in any way connected with Employee's
employment with Employer and/or the separation thereof: This Release covers all statutory,
common law, constitutional and other claims, including but not linrifed lo:
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(a) Any and all claims for wrongfu) discharge, constructive dlscl3arbe, or
wrongful dernotiorl.;
(1)) Any and all claims relating to any contracts of employment, express or
implied, or breach of the covenant of aood faith and fair dealing, express or implied;
(c) Any and al l tort claims of any nature, including but not limited to ciaitn.s
for negfigence; detiinlation; misrepresentation; fraud; age, racial, religious or sexual
discrimination, racial, religious or sexual harassmrat (whether quid pro quo or hostile
work o:R..virotnrterzt); or nCgligent or intentional indiction ofeinotional distress;
(d) Any and al l clarrus Under federal, ;Mate or municipal statutes or ordinances;
any Claims L11-ider the California l=air Employment and Housing Act, Title V11 of the Civil
Rights, Act of 1964, the Civil [lights Act of 1991, 42 U.S.C. Section .1981, the Age
Discr"Unination In Employment Act, the Older Workers' Benefit Protection Act, the
Aniericans With Disabilities Act, the; Employment Retirement Income Security Act, thr.
Cahfor-;ria Labor Code, nild any other laws and regulations relating to employment; acid
(e) Any and all claims for attorneys' fees or costs.
Employee further agrees that if any SUCH clailM is prosecuted in Employee's name before
any court or ado-Iinistrative agency, Employee waives and agrees not to take any award of money
or other damages from such stilt.
6. Return of Employer .Property; Employee shall ,aura to Employer all property
belonging to Employer within 15 days of the execution of this Agreement.
7. Waiver of Unknown Future Claims, Employee lies react Section 1542 of the
Civil Code of the State of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH! THE CREDITOR DOES NOT:KNOW OR
usi',Fur TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN 3Y HIM
,MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Employee widerstands that Section 1542 gives Employee the right not to release existing; claims
of which Employee is not now aware, unless Employee voluntarily chooses to waive this right.
Even though Employee is aware of this right, Employee nevertheless hereby voluntarily waives
the rights described in Section 1542, and elects to assume rail risks for ciaitu.s that now exist in
Emp[.oyee's favor, kffoly/t: or lwak town, arisin6 from t13e 5ulzject tttatter of this Agreement.
8. Interpretation and Construction of Agrreetnent: This Agreement shall be
construed and interpreted in accordance with the laws of the State of California. Regardless of
whsch party irtitiilflV dr-,sftcd (his A-rcement, it stall not be construed against any one party, and
shall be c:onstrudd and enforced as a mutually prepared Agreement.
9, No Admission of Liability: By entering into this Agreement, Employer is not
admitting to any liability, wrongdoing or legal violation whatsoever. with regard the employment
relationship bctween the parties or with respect to any claims released herein. Finployer
expressly deoics any and �rll such liability and wrongdoing.
77.1X17.1
10, Complete and Voluntary Agreement: Employee acknowledges Haat Employee
has read and understands this Agreement; that Employee has had the opportunity to, and has been
advi,sed by Etlr}.Moyer to seek legal counsel of Employee's own choosing and to have tlae teens of
the Agreement fully explained to hitt] or tier; that l~.mployec is not executing this Agreement in
reliance on any promises, representations or inducernents other than those contained herein; and
that E'mp[oyee is executing this Agreement voluntarily, free of any duress or coercion. Employee
spe6fically understands Haat by entering into this Agreement Employee is forever foreclosed
from purstkritg any of'the claims Employee lets -waived in paragraph 5 above:..
1 1 _ Review and (Revocation Periods: Employee shall have twenty-one (2 t) days to
accept atad sigh this Ag=nlent. Employee waives said twenty-one (2 1) day period to accept and
sial this Agreement, Employee shall Have seven (7) drys following the date on which he or she:
sighs this Agrcemeni to revoke it. Revocations must be made by delivering written notice to the
City Manager at 221 W. Fine St. Lodi, California, 95240. For the revocation to be effective,
written notice: must be received no later thaw 5:00 pan_ on the seventh calendar day after
L:'juployee sig,tas this Agreement. 1fEmploycc revokes in a tinkly manner, this Agreement shall
not be eflcctivQ or enforceable, and Employee will not be entitled to any paymentor benefits as
described in parpgraplt 4 above.
12. $avings Clause: Should any of the provisions of this Agreement be determined to
Lie invalid or unenforceable by a court or-overnmetat agency ofcontpetent Jurisdiction, it is
agreed by the parties that such determination shall not affect the enforceability ofthe other
provisions herein.
13. Scope of Agrecatent: `This Agreement constitutes the entire understanding of the
parties on the subjects covered. Except as expressly provided here, this Agreement supersedes
alae] tenders mill and void any and all prior agreements. whether oral or written, between
Employee and Employer.
14. Arbitration: The parties agree that atty cotltroversy involving the construction or
apj)hCatior3 of Mly t4 11M CovCJlallt.s or Gamlitionz; of this Agree?1 eaL, or any claims arising out of
or relating to this Agroe lent or the bread] thereof will be submitted to and settled by final and
binding arbitration, pursuant to the Caltfbfnia Arbitration Act, In Saar Joaquin County, California.
Each side: will bear its uwn attortneys' .tees in ally sttcla arbitration, arld the arbitrator shall not
have authority to award attorneys' fees unle.yr a statutory section at issue in the dispute authorizes
the nward of attorneys' fees to the prevailing party, in which ease: the arbitrator has the authority
to make such rZWard as permitted by the statute in question.
773837-1 -3-
f 5. Ratification: This Agreement will be binding upon the City only upon its
rati.ication ley the Lodi City Council
PLEASE .READ CAREFULLY. THIS AGREEMENT CONTAINS A FULL RELEASE
OF LEGAL CLAIMS, BOTR KNOWN CLAIMS AND UNKNOWN CLAIMS.
Dated:
CITY OF LODI, a municipal corPoration
BLAIR KING
City Manager
ATTEST,
SUSAN J. BLACKSTON
City Cleric
APPROVED AS TO FORM:
IF"3%
IL
•
773837.1 -4-
Dated • (i
EMPLOYEE
ALAN VALLOW