HomeMy WebLinkAboutPat Burns - Hold Harmless and Release agreement The City's offer to enter into the below Agreement shall be accepted by the Employee not later
than the 13th day of September, 2012, at 5.00 p.m., or the offer shall be withdrawn. This offer
supersedes and replaces any and all other offers relating thereto.
HOLD HARMLESS AND RELEASE AGREEMENT
This separation and release agreement ("Agreement") is entered into by and between the City
of Auburn (or the "City") and Pat Burns ("Employee").
I. RECITALS
The City has elected to cease providing municipal court services resulting in the elimination
of Employee's position. The parties desire to agree on a separation and release agreement given
these unique circumstances and to aid Employee's transition to alternative employment.
II. AGREEMENT
In consideration of the foregoing recitals, the parties agree as follows:
1 Separation from Employment. Employee's last date of employment with the City
shall be December 31, 2013 (the "Separation Date"). Employee will be paid his regular salary and
benefits through the Separation Date, including continued contribution to the Employee's retirement
account with the Washington State Judge's Retirement System, and the Employee would be eligible
to continue participating in the City's VEBA program up until the Separation Date. From the I"
day of November, 2012, through the Separation Date, Employee shall be on administrative leave
during which time he will continue to accrue benefits in accordance with City policy unless the
administrative leave is earlier terminated in accordance with paragraph 10 While on administrative
leave, Employee shall be required to comply with all City policies and be available for work
assignments upon receiving reasonable advance notice from the City
2. Accrued Vacation. The City will pay Employee for vacation that Employee has
accrued but not used, if any, as of the Separation Date.
3 Release. Employee accepts the benefits contained in this Agreement in full
satisfaction of all his rights and interests relating to his employment with and separation from the
City and, in consideration therefore, Employee hereby releases the City, its agents, representatives
and employees (collectively, the "Released Parties") from all claims (other than claims for the
breach of this Agreement), causes of action or liabilities, suspected or unsuspected and irrespective
of any present lack of knowledge of any possible claim or of any fact or circumstance pertaining
thereto, which Employee may have or claim to have against any of the Released Parties arising from
or during employment with the City or as a result of separation from employment. This release
specifically covers, but is not limited to, any claims of discrimination based on race, color, national
origin, sex, sexual orientation, marital status, age (including claims under the Age Discrimination in
Employment Act) or physical or mental disability under any federal, state, or local law, rule, or
regulation; any contract or tort claims arising under federal, state, or local law; any claims for unpaid
wages or benefits; any claims arising under federal, state or local law based on promises made or
allegedly made by the City to Employee; and any claims under any express or implied contract or
legal restrictions on the City's right to terminate its employees. Employee hereby covenants not to
assert any such claims or causes of action (the only exception being a suit filed solely to challenge
Agreement
Page 2 of 4
the validity of this release under the ADEA). This release is intended to be all encompassing, and to
fully resolve all matters and relations between the parties up to the date Employee signs this
Agreement.
4 Other Claims or Lawsuits. Employee represents that as of the date he executes this
Agreement, he has not filed any complaints, charges or lawsuits against any of the Released Parties
with any governmental agency or any court.
5 No Admission. Nothing in this Agreement shall be construed as any indication that
the City or any of the Released Parties has acted wrongfully towards Employee or any other person.
6. Review and Revocation. Employee acknowledges that:
a. Pursuant to applicable law, he has been offered the opportunity to review a
copy of this Agreement for a period of twenty-one (21) days (the "Review Period"), and the
parties have agreed that changes to this Agreement during the Review Period, whether
material or immaterial, shall not restart the running of the 21-day Review Period;
b. The City advised Employee at the beginning of the Review Period to consult
with an attomey concerning the terms and conditions of this Agreement, including without
limitation the release set forth in this Agreement; and
C. The terms and conditions of this Agreement have not been amended,
modified, or revoked during the Review Period. The City and Employee agree that
Employee shall have seven (7) calendar days (the "Revocation Period") following the date on
which Employee signs this Agreement to revoke his acceptance of the Agreement and the
release set forth in this Agreement, and this Agreement shall not become effective until the
Revocation Period has expired.
7 Nondisparagement. Employee agrees to avoid and refrain from communicating
any disparaging, derogatory, libelous, or scandalous statements to any third party regarding any
party to this Agreement, or regarding any of the Released Parties or regarding any such person or
entity's conduct.
8. Confidentiality. Employee acknowledges and agrees that the Employee has a
continuing duty of confidentiality with regard to any confidential or proprietary information or
records, whether written or oral, which he has learned of or had access to or which was otherwise
disclosed to him in the course of his employment with the City The Employee agrees that he will
not disclose any such confidential or proprietary information to any third parties without the express
prior written consent of the City The City shall endeavor to preserve the confidentiality of this
Agreement to the extent permitted by law
9 City Property Employee represents and certifies that all property of the City,
including but not limited to all business records, paper and files, telephone, computer, computer
drives and discs, have been left at the City's offices or returned to the City, provided that this does
not preclude the Employee from retaining copies of such records, papers, files or other information.
Agreement
Page 3 of 4
10. Remedies. In addition to any other remedy provided by law, the City may terminate
the administrative leave provided in paragraph 1 above and cease any further payments or benefits to
Employee should employee violate any provision or section of this Agreement. Prior to terminating
the administrative leave, the City shall provide Employee with 15 days notice of the violation of the
Agreement and an opportunity to cure the violation. The City retains the full and complete
discretion to determine if Employee has successfully cured the violation to avoid termination of the
administrative leave.
11 Voluntary Execution. Employee represents that he has read, considered, and fully
understands this Agreement and all its terms, and executes it freely and voluntarily
12. Construction of Agreement: Governing Law Each party has had a full and complete
opportunity to review this Agreement, and has been given the opportunity to have counsel review it.
Accordingly, the parties agree that the common law principles of construing ambiguities against the
drafter shall have no application to this Agreement. Interpretation of this Agreement shall be under
Washington law If any such action is necessary to enforce the terms of this Agreement, the
substantially prevailing party shall be entitled to receive reasonable attorneys' fees and costs.
13 No Representations. Employee represents that in entering into this Agreement, he
does not rely and has not relied upon any representation or statement made by the City or any of its
employees or agents concerning this Agreement.
14
Complete Agreement, This Agreement constitutes a full and final resolution of all matters in any
way related to Employee's employment with and separation from the City This Agreement
supersedes any and all other agreements between the parties. The parties agree that no modification,
change or amendment of this Agreement or any of its provisions shall be valid, unless in writing and
signed by the party against whom such claimed modification, change or amendment is sought to be
enforced.
15 Severability If any provision of this Agreement, or portion thereof, shall be held
invalid or unenforceable by a court of competent jurisdiction or in any arbitration proceeding, such
invalidity or unenforceability shall attach only to such provision or portion thereof, and shall not in
any way affect or render invalid or unenforceable any other provision of this Agreement or portion
thereof, and this Agreement shall be carried out as if any such invalid or unenforceable provision or
portion thereof were not contained herein. In addition, any such invalid or unenforceable provision
shall be deemed, without further action on the part of the parties, modified, amended or limited to
the extent necessary to render the same valid and enforceable.
16. Titles. The titles of the paragraphs of this Agreement are inserted merely for
convenience and ease of reference and shall not affect or modify the meaning of any of the terms,
covenants or conditions of the Agreement.
17 Council Approval. The Agreement is subject to approval by the Auburn City
Agreement
Page 4 of 4
Council. The Mayor of the City shall endorse and support Council approval hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as their free and
volu ct on the dates set forth below
Date:
urns
City of ub
By Date. -/
Its