CC Resolution 11178RESOLUTION NO. 11178
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAMPBELL AUTHORIZING
THE CITY MANAGER TO EXECUTE VOLUNTARY SEPARATION AGREEMENTS WITH
EMPLOYEES
WHEREAS, the City of Campbell is facing a severe financial strain due to the prolonged
economic recession; and
WHEREAS, the City Council authorized the development of a comprehensive Budget
Correction Strategy to resolve the structural budget deficit; and
WHEREAS, the City Council provided direction on the creation of a Voluntary Separation
Program to reduce personnel costs; and
WHEREAS, in order to address the budget shortfall, the City is offering all employees who
have been employed by the City for at least five (5) full years of service in a regular position
the option of electing to participate in the Voluntary Separation Program; and
WHEREAS, employees who have obtained a minimum of five (5) years of service with the City
of Campbell as of May 1, 2010 are eligible to participate in this program; and
WHEREAS, seven employees were interested and notified the City, in writing, by submitting a
Letter of Separation and have been accepted for participation by the City Manager; and
WHEREAS, the incentive will consist of one week's base salary, as shown on the City's salary
schedule, for each completed year of service up to a maximum of $30,000 per participating
employee; and
WHEREAS, the estimated net budget savings to the City of Campbell from the program is
approximately $225,000 in FY 11 and $439,000 thereafter.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Campbell does
hereby authorize the City Manager to execute the Voluntary Separation Program with the
approved employees.
PASSED AND ADOPTED this 15th day of June, 2010 by the following roll call vote:
AYES: Councilmembers: Kotowski, Kennedy, 'Furtado, Baker, Low
NOES: Councilmembers: None
None
ABSENT: Councilmembers:
APPROV
,~~--
Evan D. ow, Mayor
ATTES'fI ,~
AKne Bybee, City Clerk
Attachment 2
CITY OF CAMPBELL
Voluntary Separation Program
SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
This Separation Agreement and Release of All Claims (hereinafter referred to as the
"Agreement") is made and entered into by and between the undersigned "Employee,"
his/her heirs, representatives, attorneys, successors and assigns, and anyone claiming
through Employee and the City of Campbell, a municipal corporation, and its City
Council members, officers, agents, employees, administrators, representatives, executors,
successors, assigns, and/or other individuals or entities related thereto (hereinafter
referred to collectively as "the City").
RECITALS
WHEREAS,
1. The City has a projected budget shortfall for the remainder of fiscal year 2009-10
and for fiscal year 2010-11 and beyond as a result of the economic downturn.
2. In order to address the budget shortfall, the City is offering all employees who
have been employed by the City for at least five (5) full years of service in a
regular position the option of electing to participate in the Voluntary Separation
Program (hereinafter "Separation Program") described herein.
3. Employee is eligible to participate in this program as of May 1, 2010 and has
obtained a minimum of five (5) years of service with the City of Campbell.
4. Employee has timely notified the City, in writing, by submitting this Letter of
Separation, attached hereto as Exhibit A, of his/her desire to participate in the
City's Separation Program and has been accepted for participation by the City
Manager.
5. By opting to participate in the Separation Program, Employee agrees to all the
terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
below and for other valuable consideration, receipt of which is hereby acknowledged, the
parties agree as follows:
1. Effective Date. This Agreement shall become effective and irrevocable by either party
upon the expiration of seven (7) calendar days after this document is signed by both
parties, in accordance with the revocation period set forth in paragraph 6(e) below
("Effective Date").
2. Terms of Separation Program.
a. In consideration for voluntarily separating from the City between , 2010
and , 2010 (last day on payroll to be no later than December 30, 2010),
Employee shall receive a cash contribution based on years of service with the City
as of the Employee's separation effective date. The separation cash contribution
amount shall be calculated by multiplying the employee's number of completed
years of City of Campbell service, as of the employee's separation effective date,
by one week's base pay, up to a maximum of $30,000. Based on this calculation,
the Employee shall receive $ .This one time cash contribution is not
considered compensable earnings for the purposes of calculating retirement.
b. The City Manager is authorized to extend Employee's separation date, after
consulting with the Employee, under the Separation Program to meet the needs
and objectives of the City. No appeal of the City Manager's decision shall be
permitted.
c. Employee further acknowledges that, in exchange for the consideration provided
herein, Employee is voluntarily separating from City employment and, therefore,
ineligible for unemployment compensation through the California Employment
Development Department.
d. Employees shall receive all benefits to which the Employee is normally entitled
upon separation from employment with the City.
3. Employee Representations Regarding Claims. Employee represents there are no
actions at law or administrative proceedings currently pending which concern allegations
based on Employee's hiring, retention, or compensation by the City, or the termination of
Employee's employment, or based on any act or failure to act by the City affecting,
involving, or relating to Employee and his/her employment with the City.
4. No Admission of Liability. This Agreement and compliance with this Agreement
shall not be construed as an admission of any liability by either Employee or the City of
any unlawful or wrongful acts by either party, individually or collectively. The parties
disclaim liability as to or for any and all wrongful acts against each other.
5. Waiver and Release. In exchange for the valuable consideration and compromises set
forth in this Agreement, Employee, on behalf of himself/herself and his/her
representatives, family members, heirs, administrators, executives, successors, assigns
and anyone claiming through Employee, hereby releases and forever discharges the City,
its City Council members, officers, directors, agents, and employees (whether former or
current), volunteers, successors, assigns, insurers, attorneys, consultants, affiliates, and/or
related organizations or entities (all hereafter referred to singularly and collectively as
"the parties hereby released"), from any and all actions, claims, judgments, obligations,
damages, and liabilities of whatsoever kind and character with Employee may now have
or has ever had arising in any way from or during Employee's employment with the City,
including but not limited to:
a. Any and all claims for wages, salary, paid leave, and/or benefits;
b. Any grievance or other administrative remedy deriving from City policy;
c. Any and all claims for wrongful or constructive discharge and/or reinstatement;
d. Any and all claims relating to any contracts, express or implied, or breach of the
covenant of good faith and fair dealing;
e. Any and all tort claims of any nature, including but not limited to, fraud, deceit,
misrepresentation, negligent misrepresentation, defamation, invasion of privacy,
negligent or intentional infliction of emotional distress;
£ Any and all claims of discrimination, harassment, retaliation or failure to
accommodate under federal, state or municipal statute or ordinance, including but
not limited to, race, national origin, age, gender, mental or physical disability,
medical condition, sexual orientation, marital status, religion, or otherwise, and
including any claims under the United States Constitution, California
Constitution, California Fair Employment and Housing Act, Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. section 1981, 42 U.S.C. section 1983,
the Americans with Disabilities Act, the Age Discrimination in Employment Act,
the Older Workers' Benefit Protection Act, the Equal Pay Act, the Family
Medical Leave Act, the California Family Rights Act, the Fair Labor Standards
Act, the California Labor Code, and any other laws and regulations relating to
employment; and
g. Any and all claims for attorney's fees or costs.
Employee hereby further agrees that this Agreement shall operate as a complete bar
against any and all litigation, charges, grievances now pending or contemplated by
Employee or which might at any time be filed including but without limiting the
foregoing, and any and all matters arising out of or in any manner whatsoever connected
with Employee's employment with and separation of employment from the City up to the
date of Employee's separation from the City.
Employee's Initials:
6. Older Workers Benefit Protection Act. For an Employee 40 years or older and in
accordance with the Older Workers Benefit Protection Act, covered Employee
acknowledges having been advised by this writing of the following:
a. Employee acknowledges having been advised to consult an attorney of his/her
choosing before executing this Agreement.
b. Employee acknowledges that the compensation provided in this Agreement
constitutes independent consideration for the said waiver and is in addition to any
other payment to which Employee is entitled.
c. Employee acknowledges that this Agreement is written in a manner designed to
be understood by Employee and that Employee has read the Agreement carefully
and understands its terms.
d. Employee acknowledges that he/she has up to forty five (45) calendar days from
the date of receipt of this Agreement to consider whether to accept it, although
Employee may accept it at any time within those 45 calendar days. If Employee
accepts and signs the Agreement before the end of the 45 day period, Employee
acknowledges doing so voluntarily and waives any further period for
consideration.
e. Employee has the right to revoke this Agreement within seven (7) calendar days
after signing the Agreement. This Agreement shall not become effective or
enforceable until the seven (7) day revocation period has expired. In the event that
Employee revokes pursuant to this section, the entire Agreement shall be void and
ineffective.
Employee's Initials (40 years or older):
7. Specific Waiver of Section 1542 of the California Civil Code. Employee
acknowledges that he/she has read, and hereby waives the application of Section 1542 of
the Civil Code, which provides:
"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
DEBTOR."
Employee understands and acknowledges that the significance and consequence of this
waiver of Section 1542 of the Civil Code is that, even if he/she should eventually suffer
or discover damages arising out of Employee's employment with the City, Employee will
not be permitted to make any claim for those damages. Furthermore, Employee
acknowledges that he/she intends these consequences even as to claims that may exist as
of the date of this release but which Employee does not know exist, and which, if known,
would materially affect Employee's decision to execute this release, regardless of
whether Employee's lack of knowledge is the result of ignorance, oversight, error,
negligence, or any other cause.
Employee's Initials:
8. Protected Rights. Employee and City agree that nothing in this Agreement is intended
to or shall be construed to affect, limit or otherwise interfere with any non-waivable right
of Employee under any Federal, state or local law, including but not limited to, the right
to enforce this Agreement and recover for any breach of it, rights under California Labor
Code Sections 2802 and 2804, the right to file a charge or participate in an investigation
or proceeding conducted by the Equal Employment Opportunity Commission ("EEOC")
or to exercise any other right that cannot be waived under applicable law. Employee is
releasing, however, his/her right to any monetary recovery or other relief should the
EEOC or any other agencies pursue claims on his/her behalf. Further, should the EEOC
or any other agency obtain monetary recovery or other relief on Employee's behalf,
Employee assigns to City all rights to such monetary recovery or other relief.
Employee's Initials:
9. Return of Property. Unless otherwise authorized by the City, on the last day of
employment with the City, Employee shall return all City property in Employee's
possession or control, including without limitation any laptop computers, keys, credit
cards, cellular telephones, files and documents (and all copies thereof.)
10. Construction of the Agreement. Each party agrees that in any construction to be
made of this Agreement, the same shall not be construed against any party on the basis
that the party was the drafter.
11. No Precedent. The parties specifically acknowledge and agree that this Agreement is
a compromise which shall not operate, nor be considered, as evidence of a practice or
past practice of the City or a precedent in the future.
12. Acknowledgement of Voluntary Execution. Employee has carefully read the
Agreement and understands the contents. Employee has been afforded the opportunity to
consult with his/her own counsel regarding this Agreement. Employee freely, knowingly,
and voluntarily enters into this Agreement without any duress or undue influence on the
part of any person released by this Agreement, or by any third party. Employee warrants
and represents that he/she has the mental and emotional capacity to understand the
provisions of this Agreement and its effects upon his/her legal rights.
Employee's Initials:
13. Partial Invalidity. In the event that any of the covenants, duties or restrictions of this
Agreement are found to be illegal, invalid or unenforceable, such provision, if possible,
shall be construed so as to render the provision legal, valid and enforceable. In the event
such provision cannot be amended or construed to be legal, valid and enforceable, such
provision shall be deemed deleted and the remainder of this Agreement shall remain in
full force and effect.
14. Entire Agreement. This Agreement sets forth the entire agreement between the
parties and supersedes any and all prior agreements or understandings, written or oral,
between the parties pertaining to the subject matter hereof. No other promises or
agreements shall be binding upon the parties with respect to the subject matter of this
Agreement unless contained herein or separately agreed to in writing by the parties. This
Agreement may not be modified except by a writing signed by Employee and the City
Manager.
15. Applicable Law. This Agreement shall be governed by the laws of the State of
California, and shall in all respects, be interpreted and enforced under the laws of the
State of California. Litigation arising out of or connected with this Agreement shall be
instituted and maintained in the courts of Santa Clara County in the State of California,
and the parties consent to jurisdiction over their person and over the subject matter of any
such litigation in such court, and consent to service of process issued by such court.
16. No Assignment. Employee warrants that he/she has not assigned, transferred, nor
purported to assign or transfer, any claim(s) Employee may have against the City, and
he/she will not assign or transfer, nor purport to assign or transfer, any claim(s) he/she
may have against the City. The City warrants that it has not assigned, transferred nor
purported to assign or transfer any claim(s) it may have against Employee and that it will
not assign nor purport to assign or transfer hereafter any claim(s) it may have against
Employee.
17. Waiver. Waiver by either party of any default, breach or condition precedent shall
not be construed as a waiver of any other default, breach or condition precedent or any
other right hereunder.
18. Section Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall, for all purposes, be deemed an original and all such counterparts, taken
together, shall constitute one and the same instrument.
20. Attorney's Fees and Costs. Each party shall bear all attorney's fees and costs arising
from and/or in any way related to the actions of its own counsel with regard to the
negotiation and creation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
written below in the City of Campbell, California.
By:
By:
Employee
Date:
APPROVED AS TO FORM:
By:
Dan Rich
City Manager
Date:
Bill Seligmann
City Attorney
CITY OF CAMPBELL
LETTER OF SEPARATION
I, ,intend to separate from the City of Campbell effective
on , 2010. (last day of employment)
I certify that I meet the eligibility requirements and will meet the participation
requirements established by the City for participation in the Voluntary Separation
Program (hereinafter "Separation Program").
I understand that: (1) implementation of the program is subject to the City Manager's
approval based on the needs of the City, (2) the City Manager's decision is final and not
appealable, (3) the City will notify me of its acceptance of my participation in the
Separation Program, and (4) if the City rejects my election to participate in the Separation
Program, this request will automatically be rescinded.
I understand that if the City accepts my Separation, I must sign the City's Separation
Agreement and Release of All Claims. (A preview document is attached for review
purposes, only). I further understand that if I decline to sign the Separation Agreement
and Release of All Claims this request will automatically be rescinded. The City Manager
will only consider employees who submit this letter by the April 15, 2010 deadline.
Signature
Print Name
Department
Date
Classification
Address
City State Zip Code
Phone Number
THIS LETTER OF SEPARATION MUST BE RECEIVED BY JILL LOPEZ IN
THE HUMAN RESOURCES DIVISION NO LATER THAN 5:00 P.M. ON APRIL
15, 2010.