AGENDA
ITEM
16 AGENDA STAFF REPORT
CALEXICO
DATE: June 15, 2022
TO: Mayor and City Council
- Д
APPROVED BY: Diego Favila, Interim City Manager
PREPARED BY: Best Best & Krieger LLP, City Attorney
SUBJECT: Adopt a Resolution of the City Council of the City of Calexico Approving the Employment Agreement with Esperanza Colio Warren and Appointing her as City Manager of the City of Calexico ====================== ======================== ======== Recommendation:
Staff recommends that the City Council approve a Resolution of The City Council of The City of Calexico Approving the Employment Agreement with Esperanza Colio Warren and Appointing her as City Manager of The City Calexico for City Manager services, subject to any non-substantive changes as is necessary by the City Attorney.
Background:
Former City Manager Miguel Figueroa submitted his resignation on March 1, 2022.
Subsequent to the resignation, the City Council (through a recruitment firm) conducted an employment search for a permanent replacement. The Council reviewed the qualifications of the potential candidates that responded to the City's search and ultimately held interviews with the top candidates.
At the conclusion of those interviews, the Council selected Esperanza Colio Warren as the top candidate and directed the City Attorney to negotiate an employment services agreement with Ms. Colio Warren. The Council held several closed session discussions concerning the employment terms and has concluded those negotiations with Ms. Colio Warren. AGENDA
ITEM
Esperanza Colio Warren is currently the Deputy County Executive been an adjunct professor at San Diego State University. Ms. Colio Warren also has a Master of Public Administration.
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Discussion:
The final Employment Agreement for City Manager services contains the following terms:
• Provides for an annual salary of $181,000.
• Provides for a Five (5) year term commencing July 6, 2022 and continuing through July 6, 2027.
• Provides for a monthly automobile allowance of $400.00 to use toward a vehicle in furtherance of her City Manager duties.
• Provides that all other benefits including but not limited to vacation, sick leave, holiday pay, life insurance, medical, disability and retirement benefits through CaPERS, consistent with those benefits provided to the City's other Director-level employees as outlined in the City of Calexico Management Benefit Roster. • Provides for annual performance evaluations.
• Provides for termination of the Employment Agreement in accordance both with or without cause and severance payment depending on length of service. • Provides for membership in the International City/County Management Association and compliance with their Code of Ethics.
Ms. Colio Warren's resume and her prior experience demonstrate that she is the best candidate to manage and lead the City.
Environmental Determination:
No impact.
Fiscal Impact:
The City will pay Ms. Colio Warren $181,000 per year. In addition, the contract provides Ms. Colio Warren with certain other benefits that are identical to the benefits provided to other department heads.
Alternatives:
Provide alternative direction to staff.
Attachment:
1. Resolution of The City Council of The City of Calexico Approving the Employment Agreement with Esperanza Colio Warren and Appointing her as City Manager of The City Calexico.
2. Employment Agreement between the City of Calexico and Esperanza Colio Warren. 80237.00021\40152467.1
RESOLUTION NO. 2022 -_
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALEXICO APPROVING
THE EMPLOYMENT AGREEMENT WITH ESPERANZA COLIO WARREN AND
APPOINTING HER AS CITY MANAGER OF THE CITY CALEXICO
WHEREAS, the City of Calexico is a general law city that operates under the council- manager form of government; and
WHEREAS, under the council-manager form of government, the City Council acts as the board of directors and sets policy for the City, while the City Manager acts as the chief executive officer of the organization and carries out the policies of the governing body; and WHEREAS, as the chief executive officer of the City, the City Manager implements the decisions of the City Council, manages the day-to-day operations of the City, ensures municipal services are delivered efficiently and effectively, hires and fires employees and works to protect the health, safety and welfare of the City; and
WHEREAS, the City Council wishes to enter into a long-term employment agreement with Esperanza Colin Warren and appoint her as City Manager for the City of Calexico.
NOW, THEREFORE, be it resolved, determined, and ordered by the City Council of the City of Calexico:
Section 1. The City Council hereby approves the Employment Agreement between the City of Calexico and Esperanza Colio Warren as City Manager, attached as Exhibit "A" to this Resolution.
Section 2. This Resolution shall become effective immediately upon passage.
PASSED, ADOPTED and APPROVED this 15" day of June, 2022, by the City Council of the City of Calexico.
Javier Moreno, Mayor
ATTEST:
Gabriela T. Garcia, City Clerk
APPROVED AS TO FORM:
Carlos Campos, City Attorney
Best Best & Krieger LLP
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Resolution No. 2020-42
State of California )
County of Imperial ) SS.
City of Calexico
I Gabriela T. Garcia, City Clerk of the City of Calexico do hereby certify the above Resolution No. 2022- was approved by regular City Council meeting held on the 15*h day of June 2022, by the following vote-to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Gabriela T. Garcia, City Clerk
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EMPLOYMENT AGREEMENT BETWEEN
THE CITY OF CALEXICO
AND ESPERANZA COLIO WARREN
This Employment Agreement (hereinafter referred to as "Agreement") is made and entered into between ESPERANZA COLIO WARREN (hereinafter referred to as "City Manager") and the CITY OF CALEXICO, a municipal corporation of the State of California (hereinafter referred to as "City"), in order to provide, in writing, the terms and conditions for management services by the City Manager of City. City and City Manager are sometimes referred to herein individually as "Party" and collectively as "Parties."
RECITALS
WHEREAS, the City requires the services of a City Manager, and the City Council of the City ("City Council") desires to employ the City Manager in that position; WHEREAS, the City Manager is familiar with the position's legal requirements, industry standards and responsibilities, and duties as set forth both in the job description and Chapter 2.02 of the City's Municipal Code;
WHEREAS, the City Manager has the necessary education, experience, skills, expertise and abilities to serve as the City's City Manager.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants herein contained, the parties hereto agree as follows:
TERMS
1. Employment The City hereby agrees to employ the City Manager, and the City Manager agrees and does accept employment upon the terms and conditions set forth herein. It is expressly understood that City Manager, in her capacity as City Manager, is a contracted employee serving at the will and pleasure of the City Council, subject to termination pursuant to the terms of this Agreement, and with no right to any hearing or appeal, including any so-called Skelly conference, other than the rights expressly provided in this Agreement.
2. Term and Renewal This Agreement shall be effective as of July 6, 2022 (the "Anniversary Date"). The term of this Agreement shall be for five (5) years, through July 6, 2027, unless sooner terminated or extended by the Parties as set forth in this Agreement.
3. Duties and Obligations of City Manager
A. The City Manager hereby agrees to perform the functions and duties of City Manager, as specified in the City's ordinances, the City's municipal code ("Municipal Code"), City policies and procedures approved by the City Council, and in state law, and to perform such other legally permissible and proper duties and functions as the majority of the City Council shall from time to time assign. Specifically, the City Manager is obligated to know and execute
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the duties and responsibilities of the City Manager as set forth in Chapter 2.02 (as applicable at the time of execution of this Agreement), except for Section 2.02.020 which is legally invalid, and perform her duties consistent with all ethical and procedural standards applicable by law, industry standards, and best practices. The City Manager further agrees to perform all such functions and duties to the best of her ability and in an efficient and competent manner.
B. The City Council shall also designate the City Manager as the executive director, general manager or similar title of other City-related legal entities. Such other legal entities include the City's financing authorities and utility agencies and could include certain joint powers authorities when applicable.
The City Manager is an exempt employee, but is expected to engage in those hours of work that are necessary to fulfill the obligations of the City Manager's position. The City Manager does not have set hours of work, as the City Manager is expected to be available at all times. It is recognized that the City Manager must devote a great deal of time to the business of the City outside of the City's customary office hours, and to that end the City Manager's schedule of work each day and week shall vary in accordance with the work required to be performed. The City Manager shall spend sufficient hours on site to perform the City Manager's duties; however, the City Manager has discretion over the City Manager's work schedule and work location.
D. The Parties mutually desire that the City Manager be subject to and comply with the International City Management Association (ICMA) Code of Ethics, incorporated herein by reference. The City Manager commits to comply with the ICMA Code of Ethics. The City and the City Council agree that neither the City Council, nor any of its members, will give the City Manager any order, direction, or request that would require the City Manager to violate the ICMA Code of Ethics.
E. The City Manager shall administer and enforce policies established by the City Council, and promulgate rules and regulations as necessary to implement City Council policies.
F. The City Manager shall attend all meetings of the City Council, unless excused.
The Mayor shall have the authority on behalf of the City Council to excuse the City Manager - he City Mang
from meetings. The City Manager shall also take part in the discussion of all matters before the City Council during meetings she attends, and the City Manager shall receive notice of all regular and special meetings of the City Council.
Consistent with the Municipal Code, state law and all relevant City policies and procedures, the City Manager shall review and concur by rendering a recommendation on all agenda documents before preparing the agenda for any regular or special meetings of the City Council.
H. The City Manager shall direct the work of all elective and appointive City officers and departments that are the concern and responsibility of the City Council, except those that are directly appointed by or report directly to the City Council.
I. The City Manager will focus her professional time, ability, and attention to City business during the term of this Agreement. The City Manager shall not engage in any other
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business duties or pursuits whatsoever or, directly or indirectly, render any services of a business, commercial, or professional nature to any other person or organization, whether for compensation or otherwise, without the prior consent of Council, except that:
(1) The expenditure of reasonable amounts of time not in conflict with the City's needs and interests, for educational, charitable, community, and professional activities, shall not be deemed a breach of this Agreement and shall not require prior consent. (2) This Agreement shall not be interpreted to prohibit the City Manager from making passive personal investments or conducting private business affairs if those activities do not materially interfere with the services required under this Agreement.
All data, studies, reports and other documents prepared by the City Manager while performing her duties during the term of this Agreement shall be furnished to and become the property of the City, without restriction or limitation on their use.
K. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to the City Manager in connection with the performance of this Agreement shall be held confidential by the City Manager. Such materials shall not, without the prior written consent of the Council, be used by the City Manager for any purposes other than the performance of her duties. Nor shall such materials be disclosed to any person or entity not connected with the performance of services under this Agreement, except as required by law.
4. Compensation
A. Base Salary. The City Manager's base salary shall be One Hundred and Eighty- One Thousand Dollars ($181,000) annually, payable pursuant to the payroll procedures regularly established and as they may be amended by the City in its sole discretion. The City Manager shall be paid at the same intervals and in the same manner as regular City employees. The City Manager may receive up to 5% annual increases in salary as may be determined by the City Council in its sole discretion. Any agreed salary increase must be expressly memorialized in a subsequent written and executed Amendment to this Agreement. The City shall not, at any time during the term of this Agreement, reduce the base salary, compensation or other financial benefits of the City Manager, unless as part of the general City management salary reduction, and then in no greater percentage than the average reduction of all designated management employees. All compensation and comparable payments to be paid to City Manager shall be less withholdings required by law.
B. Cost of Living Adjustments. Whenever a cost of living adjustment or other non- merit based pay increase is provided to other City Employees, the City Council shall meet to determine whether it is reasonable and appropriate to provide a similar adjustment or increase to the City Manager's Base Salary. Any cost of living increase will be provided at the City Council's sole discretion.
5. Benefits
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In addition to the compensation set forth in Section 4 the City Manager shall be entitled to the following benefits:
A. Automobile Allowance. The City shall provide the City Manager a monthly automobile allowance of Four Hundred Dollars ($400.00) for use toward a vehicle in the furtherance of her duties as City Manager.
B. ICMA Dues/Other Professional Development. The City agrees to budget and pay the City Manager's annual dues for membership in ICMA. In addition, the City agrees, subject to the City's budget constraints and advance approval of Council, to pay expenses and allow City time for the following: (1) conference and meeting attendance and selected training opportunities, including, but not limited to, those associated with ICMA, the League of California Cities, and other national, state, regional or local associations and organizations necessary and desirable for the good of the City and for the City Manager's continued professional development; (2) professional dues and subscriptions on behalf of the City Manager which are necessary for the City Manager's continuation and full participation in national, state, regional or local associations and organizations, including civic clubs or organization, necessary and desirable for the good of the City and for the City Manager's continued professional development; and (3) travel and subsistence expenses of the City Manager to pursue official and other functions for the City, including, but not limited to, national, state, regional and/or local associations and organizations necessary and desirable for the good of the City and for the City Manager's continued professional development
C. Business Expenses. Within the City's budget constraints and subject to adopted City policies, the City shall pay for or provide the City Manager reasonable reimbursement for all actual and necessary business expenses. This includes the City providing the City Manager with a cellphone, monthly cellphone service, and a laptop. These tools may be replaced every two to three years, as needed. The City may opt to provide City Manager with an allowance of $1,500 per year in lieu of providing these technological tools.
D. Other Benefits. With the exception of such benefits as outlined specifically in this Section, the City shall provide the City Manager with other benefits, including but not limited to vacation, sick leave, holiday pay, life insurance, medical, disability and retirement benefits through CalPERS, consistent with those benefits provided to the City's other Director-level employees as outlined in the City of Calexico Management Benefit Roster.
E. Executive Leave. Upon execution of this Agreement and each year thereafter, Employee will be allotted eighty (80) hours of executive leave to be used as administrative days away from the office. These days are to be scheduled and used throughout the year to complete administrative tasks and duties without undue office interference. These days off do not accrue, are not subject to carry over, are not subject to any cash-out option, and will not be paid out upon termination of employment.
F. Internal Revenue Code Compliance. All provisions of this Section 5 are subject to the provisions and limitations of the Internal Revenue Code and its related regulations, as amended from time to time. No requirement of any provision of this Section 5 shall be effective if it would violate any provision of the Internal Revenue Code or its related regulations, and the
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inability of the City to effectuate such requirements shall not constitute a breach of this Agreement.
6. Performance Evaluations
The City Council shall review and evaluate the performance of the City Manager in writing, at a minimum, on an annual basis at the second City Council meeting of every January. The City Manager shall place her evaluation on such agenda. The evaluation will also set torth mutually detined goals to be achieved by the City Manager in the subsequent year. The City Manager will be provided an adequate opportunity to discuss her evaluation with the City Council at a closed session Council meeting. The City Manager shall be eligible, if merited in the City Council's sole discretion, to receive a salary increase of up to five percent (5%) at the conclusion of such evaluation. Any agreed salary increase must be expressly memorialized in a subsequent written and executed Amendment to this Agreement. Failure of the City Council to conduct a performance evaluation shall not prohibit the City Council from terminating this Agreement in accordance with the other sections of this Agreement.
B. The performance review and evaluation process set forth herein is intended to provide review and feedback to City Manager so as to facilitate a more effective management of the City. Nothing herein shall be deemed to alter or change the employment status of City Manager, nor shall this Section be construed as requiring "cause" to terminate this Agreement or the services of City Manager hereunder.
7. Termination of Agreement and Severance Pay
At-Will. The Parties hereby expressly agree that the employment relationship created by this Agreement is "at will" and that the City Manager serves at the will and pleasure of the City Council. Nothing in this Agreement, any statute, ordinance, or rule shall prevent, limit or otherwise interfere with the right of the Council to terminate, without cause or right of appeal or grievance, the services of the City Manager at any time, except as set forth in this Section 7. Accordingly, City Manager agrees that this Agreement sets forth the only terms and conditions applicable to the termination of her employment and that the provisions of Section
2.02 of the Municipal Code shall not be applicable to City Manager and that she hereby waives any rights she would otherwise have thereunder.
B. 90 Day Period. City Manager shall not be removed during the 90-day period preceding or following any City election for membership on the City Council, or during the 90- day period following any change in membership of the City Council.
C. Automatic Termination. This Agreement, and City Manager's employment, shall automatically terminate, and the City Manager shall not be entitled to any Severance Payment, upon the happening of any of the following events:
(1) Upon mutual agreement in writing by both Parties to terminate this Agreement.
(2) Upon forty-five (45) calendar days' notice of resignation given to City by the City Manager.
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(3) Upon retirement from full-time public service with the City pursuant to applicable CaPERS laws, rules and regulations. If the City Manager retires, the City Manager shall provide six (6) months' advance notice. The City Manager's actual retirement date will be mutually established.
(4) Upon the death of the City Manager.
(5) When the City Manager has been unable to perform all or substantially all of the essential functions of her position, with or without reasonable accommodation, due to illness or other disability for a period of three consecutive (3) months or longer. The failure of the City to enforce this provision for a period of three (3) consecutive months or longer shall not act as a waiver, and the City, upon a determination of a lack of substantial performance by the City Manager, shall be able to move forward with termination pursuant to this provision at any time after three (3) consecutive months of unavailability, regardless of how long it has waited for the City Manager's availability to return prior to that date.
D. Termination With or Without Cause. This Agreement, and City Manager's employment, may be terminated without prior notice at any time, with or without cause, pursuant to the requirements as set forth below.
(1) Without Cause - Severance. In the event City Manager is terminated without cause during such time that the City Manager is willing and able to perform her duties under this Agreement, other than under an automatic termination instance as provided for in Section 7(C) above, the City agrees to provide City Manager with a severance payment of up to the following amounts:
(a) If severance occurs in the first year of the Agreement, then an amount equal to ten (10) months of pay, plus payment of COBRA premiums sufficient to provide City Manager coverage for ten (10) months;
(b) If severance occurs in the second year of the Agreement, then an amount equal to eleven (11) months of pay, plus payment of COBRA premiums sufficient to provide City Manager coverage for eleven (11) months; or,
(c) If severance occurs in the third year of the Agreement or thereafter, then an amount equal to twelve (12) months of pay, plus payment of COBRA premiums sufficient to provide City Manager coverage for twelve (12) months.
The City Council agrees that, during the first three (3) years of this Agreement, at least four (4) members of the City Council will have to vote in favor of termination without cause in order to effectuate the termination.
Severance payment, however, shall be limited as required by Government Code section 53260, in that any severance payment will be either consistent with the amounts listed above or shall be a payment amount equal to the unexpired term (initial or subsequent, whichever is
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currently relevant) of this Agreement, whichever is less. The provision of a severance payment shall also be conditioned upon the execution by City Manager of a Release of All Claims, both known and unknown.
Finally, the obligation to pay severance shall only arise and is contingent upon the City Manager's execution of a Release Agreement, releasing the City from all claims known or unknown, substantially in conformity with the exemplar Release Agreement attached hereto as Exhibit "A". Failure on the City Manager's part to execute such a release alleviates the City from any duty to pay the severance associated with termination "without cause" pursuant to this section.
(2) With Cause. In the event City Manager is terminated for cause by a vote of at least three (3) members of the City Council, she shall not be entitled to any severance pay or benefits. "Cause" shall include the following reasons:
(a) Acts of malfeasance or unethical behavior inconsistent with the ICMA Code of Ethics to the detriment of the City;
(b) Refusal or failure to act in accordance with any legal requirement or specific lawful direction or lawful order made by of the majority of the City Council:
(c) Exhibition in regard to her employment unfitness or willful unavailability for service, willful and repeated unsatisfactory performance, misconduct, dishonesty, habitual neglect, or incompetence;
(d) Involvement in crime involving dishonesty, breach of trust, or public conduct reflecting negatively on the City (no pending criminal prosecution need be in effect for termination due to fraud, embezzlement or public conduct reflecting on the City; rather the Council must only have a reasonable good faith belief based on evidence and an independent third party investigation); (e) Creates physical or emotional harm to any person in violation of state or federal laws (no pending criminal prosecution need be in effect for termination due to such harm; rather the Council must only have a reasonable good faith belief based on evidence and an independent third party investigation); or,
(f) Breaches any material term of this Agreement.
(3) The provisions of California Government Code sections 53243 to 53243.4, as those sections now or hereafter exist are hereby incorporated by reference into this Agreement. Thus, if City Manager is convicted of a crime involving an abuse of her office or position, whether before or after release from employment, City Manager shall fully reimburse the City for any severance pay, paid leave salary disbursed pending an investigation related to the crime, or legal criminal defense funds relevant to the crime.
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With Cause Procedure. Upon termination for cause, the City shall deliver to the City Manager a written specification of the charges or other reasons upon which "cause" is alleged. The City Manager shall then have ten (10) business days to challenge such termination for cause by delivery of a written response to such specifications. Within such ten (10) day period, the City Manager may also demand a hearing upon the specifications. Failure to submit a written response or demand a hearing within the ten (10) business day period shall constitute a waiver of such right, and the Council's determination shall be final. If a hearing is demanded, such hearing shall be held in closed session and the City Manager and/or her attorney or legal representative may present any evidence or argument relevant to the inquiry. If a written response is submitted but no hearing is demanded, the Council shall review its decision based upon the City Manager's written response. The Council's decision regarding whether sufficient cause existed for termination following review of the written response or presentation at hearing shall be final and without right of appeal. The City Manager shall not have any reinstatement rights.
F. Suspension. The City Council by a vote of at least three (3) members of the City Council may suspend the City Manager with full pay and benefits at any time, for any duration, upon: (1) if the City Manager agrees to said suspension; or (2) upon the Council voting to suspend the City Manager.
8. Bonding The City shall bear the full cost of any fidelity or other bonds required of the City Manager, in the performance of her duties as City Manager.
9. Indemnification To the full extent of the law, as provided by the California Torts Claims Act (Government Code Section 810, et seq.), the City shall defend and indemnify the City Manager against all losses sustained by the City Manager in direct consequences of the discharge of the City Manager's duties within the scope of her employment for the period of the City Manager's employment.
10. Modification Any modification of this Agreement will be effective only if it is in writing and signed by both Parties.
11. Effect of Waiver The failure of either Party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other Party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.
Assignment Neither this Agreement, nor any right, privilege, or obligation of the City Manager hereunder shall be assigned or transferred by her without the prior written consent of the Council. Any attempt at assignment of transfer in violation of this provision shall, at the option of the Council, be null and void and may be considered a material breach of this Agreement.
13. Entire Agreement This Agreement supersedes any and all other agreements, either oral or in writing, between the City and the City Manager. This Agreement contains all of the
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covenants and agreements between the Parties with respect to the City Manager's employment by the City in any manner whatsoever. Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding on either Party.
14. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
15. Law Governing Agreement This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue shall be in Imperial County.
No Presumption of Drafter The Parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the Parties, and this Agreement reflects their mutual agreement regarding the subject matter of this Agreement.
Because of the nature of such negotiations and discussions, it would be inappropriate to deem any Party to be the drafter of this Agreement and, therefore, no presumption for or against validity or as to any interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement.
17. Survival of Termination Many sections of this Agreement are intended by their terms to survive the City Manager's termination of employment with the City. Where so intended, these sections shall survive termination of employment and termination of this Agreement.
18. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to recover such amount as the court may award as reasonable attorneys' fees and costs.
19. Notices
A. Any notice to be given hereunder by either Party to the other shall be in writing nd may be transmitted by personal delivery or mail, registered or certified, postage prepai ith return receipt requested. Mailed notices shall be addressed to the following respectiv addresses:
If To Employer:
Mayor and City Council
City of Calexico
608 Heber Avenue
Calexico, CA 92231
ATTN: Mayor
With Copy to:
Best Best & Krieger LLP
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74760 Highway 111, Suite 200
Indian Wells, CA 92210
ATTN: Calexico City Attorney
If To Employee:
Esperanza Colio Warren
[Address on file with the City]
Notices delivered personally shall be deemed communicated as of the date of actual receipt. Mailed notices shall be deemed communicated as of the date of mailing, plus two (2) days.
Assistance of Counsel Each Party to this Agreement warrants to the other Party that it has either had the assistance of counsel in negotiation for, and preparation of, this Agreement or could have had such assistance and voluntarily declined to obtain it.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the of May 2022.
CITY OF CALEXICO CITY MANAGER
By: By:
MAYOR, JAVIER MORENO ESPERANZA COLIO WARREN
ATTEST:
By:
Gabriela T. Garcia, City Clerk
APPROVED AS TO FORM
By:
Best Best & Krieger LLP, City Attorney
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[EXHIBIT "A" - EXEMPLAR RELEASE AGREEMENT]
This Agreement is entered into on 20_ by and between ESPERANZA COLIO WARREN (hereinafter "Workei") and CITY OF CALEXICO (hereinafter "City").
Worker is employed as City Manager for City. The Parties mutually desire to settle all of their present and possible future differences as follows:
1. SEPARATION TERMS. Worker agrees not to contest separation from work/ relationship as of , 20 and to release all claims. City agrees to pay Worker severance pay in the total amount equal to L ]. The severance pay will be paid on City's first regular payday following the date this Agreement.
2. GENERAL RELEASE. Worker voluntarily and irrevocably releases City and its councilmembers, officers, employees, fiduciaries, agents, successors, and assigns (collectively, "Released Parties") from and against any and all individual relief claims, obligations, debts, demands, judgments, or causes of action of any kind whatsoever, known or unknown, actual or contingent, whether brought at law, in equity or otherwise, based on tort, contract, statute, or on any other basis, which Worker has or may have against any of (collectively, "Claims"), which arise from or are related to Worker's employment or relationship with the City of any other Released Party or any other matter, cause or thing whatsoever which may have occurred involving Worker and any Released Party prior to the date of Worker's acceptance of this Agreement. This release also includes all claims for equitable relief, actual, compensatory, consequential, punitive, special, multiple, or other damages, expenses (including without limitation attorneys' fees and court costs. This release includes, without limitation, any and all Claims Worker has or may have against the City or any other Released Party arising under any federal, state, local, or foreign statute, common or other law.
3. CIVIL CODE SECTION 1542 WAIVER. Worker agrees that the release includes not only claims presently known but also include all unknown or unanticipated claims. Worker understands that she may later discover facts different from what they now believe to be true, which if known, could have materially affected this Agreement, but she nevertheless waives any claims or rights based on different or additional facts. Worker knowingly and voluntarily waives any and all rights or benefits that she may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides as follows:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXISTS IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
4. RELEASE CARVE-OUT. Notwithstanding the provisions of paragraphs 2-3, Worker's released claims shall not include any claims which expressly cannot be waived according to California Labor Code Section 2804. Nor shall anything in this Agreement be construed to prohibit Worker from filing a charge with or participating in any investigation or proceeding conducted by the PERB, EEOC, DFEH, or any other governmental agency. Notwithstanding the foregoing, Worker hereby agrees to, and does, waive her right to recover monetary damages in any charge or lawsuit filed by Worker or anyone else on her behalf.
5. CONFIDENTIALITY & NO DEFAMATION. Except as such disclosure of this Agreement may occur as required by law, Worker agrees the terms of this Agreement and all negotiations between the Parties shall be kept strictly confidential. The Parties shall keep confidential the details of the negotiations, the terms of this Agreement, Worker's subjective opinion relating to the negotiations, and the Agreement itself. The Worker may respond to inquiries only by indicating that the separation was voluntary. City's human resources personnel may respond only with dates of employment, job title, and salary. The Worker may not disparage councilmembers, employees, or vendors nor may Worker defame City, its council, management, employees, agents, officers, shareholders, or affiliates. Worker agrees to refrain from making public statements regarding her subjective opinion about City. These obligations are not intended to prohibit lawful interactions with governmental agencies as referred to in paragraph 4.
THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. THE SIGNATORIES FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS AGREEMENT AND ARE SIGNING VOLUNTARILY.
Date:
ESPERANZA COLIO WARREN
Date: CITY OF CALEXICO
By:_
[NAME & TITLE OF REPRESENTATIVE]
80237.00021\40152412.1
06/10/22