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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shall be accepted by the Employee not later than the 13th day of September, 2012, at 5.00 p.m., or the offer shall be withdrawn.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