EMPLOYMENT AGREEMENT
CITY OF FULLERTON CHIEF OF POLICE
This AMENDED AND RESTATED EMPLOY MENT AGREEMENT ("Agreement") is made effective as of August 3, 2021 May 2, 2023 ("Effective Date") and is entered into by and between the CITY OF FULLERT ON, a California mu nicipal corporation ("City") and ROBERT DUNN II ("Dunn") an individual (sometimes collectively referred to herein as "the Parties").
RECITALS
WHEREAS, the City and Dunn previously entered into an employment agreement for Dunn to serve as Chief of Police of the City of Fullerton ("Chief of Police" or "Police Chief) beginning June 29, 2019 referred to hereinafter as the "Appointment Date"; and
WHEREAS, the City desires to provide cert ain benefits, establish certain conditions of employment, and to set working conditions of Chief of Police; and
WHEREAS, the City desires to continue the employment of Dunn as Chief of Police; and
WHEREAS, the Parties have agree d to terms and conditions of employment effective upon execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
SECTION 1: Effective Date, Term, Extensions and Notice of Non-Renewal
This Amended and Restated Agreement shall be effective on August 3, 2021 May 2, 2023.
Subject to City's right to terminate Dunn's appointment as Chief of Police at any time, as provided for in this Agreement, the Term of this Agreement shall be through June 29, 2024 May 2, 2028 . The period of five (5) years following the Appointment Effective Date of June 29, 2019 May 2, 2023 shall be referred to hereinafter as the "Initial Agreement Period". The Parties may, by mutual written agreement, extend Dunn's employment under the te rms of this Agreement for up to two (2) one (1) additional three-year period s beyond the Initial Agreemen t Period. City's election not to extend or renew this Agreement must be delivered in writing to Dunn no later than six (6) months prior to the expiration of the Initial Agre ement Period or any extension thereto.
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Employment Agreement – Robert Dunn
SECTION 2: Duties and Authority
Employer agrees to employ Dunn as Chief of Police to exercise the powers and authority and to perform the functions and duties specified in the Fullerton Municipal Code and all relevant resolutions, rules, regulatio ns, procedures, applicable job description(s) and state codes, as they cu rrently or may in the future exist.
Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agre ement, as City, by its City Council, may legally assign.
SECTION 3: Compensation, Performance Objectives and Performance Evaluation
A. Base Salary. Effective May 13, 2023, City agrees to pay Dunn an annual base salary of $210,700 $231,510 (Two Hundred Ten Thousand Seven Hundred Thirty-One Thousand Five Hundred Ten Dollars) ("Base Salary") ,.
Effective December 9, 2023, City agrees to pay Dunn an annual base salary of $241,260 (Two Hundred Forty-One Thousand Two Hundred Sixty Dollars) (“Base Salary”). Payment of Base Salary shall be subject to deductions and withholding of any and all sums required for federal or st ate income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or loca l law, prorated and paid on the City's biweekly payroll cycle. City shall also deduct sums Dunn is obligated to pay because of participation in plans or pr ograms described in Section 4 of this Agreement.
1. One-Time Bonus. Dunn will receive a one-time non-PERSable payment in the amount of $10,000. Payment will be included in regular payroll and paid within 30 days of ratification of this agreement.
B. City and Dunn shall set mutually-agreed upon performance objectives for each year under this Agreement. Such performa nce objectives shall be agreed by the City Manager after consultation with the City Council and Dunn as necessary for the proper operation of the Fullerton Police Department in the attainment of the City Council's policy objectives and shall fu rther establish a relative priority among the agreed objectives. These object ives shall be reasonably attainable within the limitations of the Cit y Council approved operating and capital budgets, authorized appropriations and staffing levels. The initial performance objectives shall be discussed and agreed upon no later than October 31, 2019.
C. City, through its City Mana ger after consultation with the City Council, shall conduct an evaluation of Dunn's perfor mance each June during the period in which this Agreement remains in effect . City shall conduct the next evaluation of Dunn’s performance in June 2024., beginning with June 2020.
D. The Parties agree to reexamine Dunn's Base Salary no less frequently than each 3 City of Fullerton
Employment Agreement – Robert Dunn
June during the period in which this Agreement remains in effect. Any change to Base Sala ry and/or other additional co mpensation s hall require City Council approval.
SECTION 4: Retirement and Health Benefits
A. Retirement. The City's contract wi th CalPERS shall apply to Dunn.
1. The City shall pay on behalf of Dunn seven percen t (7%) of the CalPERS normal member contribution , (as defined in §20677(a)(2) of the California Government Code , pursuant to Section 20691 of the California Government Code. This payment of 7% will be included within Dunn's compensati on earnable that is reported to CalPERS, pursuant to Section 20636(c)(4) of the California Go vernment Code.
Dunn shall pay the remaining bala nce of the CalPERS normal member contribution.
2. Dunn shall pay a percent of total compensation earnable to CalPERS by way of cost sharing of the City's employer ra te as specified by the contract between the City and Ca lPERS. The current cost sharing percentage is 6.357 2.029 %. The City and Dunn shall negotiate the impacts of any increase in the cost sharing percentage during the term of the contract.
3. The City shall pay the 1959 Survivor Benefits premium for Dunn.
4. Dunn shall be subject to the provisio ns of California Government Code Section 20037, whereby his final co mpensation shall be the highest annual average compensation dur ing any consecutive 36-month period of employment.
B. Medicare. Dunn shall pay the designated em ployee contribution for Medicare in accordance with applicable law.
C. Health Insurance. Dunn's enrollment in City sponsored health coverage shall be subject to the following terms:
1. Dunn shall be eligible to enroll in City sponsored medical, dental and vision plans during the term of this Agreement.
2. The City's contributions to plans se lected by Dunn shall be subject to the following maximum monthly City contributions:
a. Medical insurance - $1,500 per month
b. Dental insurance - $145 per month
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Employment Agreement – Robert Dunn
c. Vision insurance - $25 per month
3. Dunn shall not be eligible to receive payment for the cash value difference between the maximum monthly City c ontribution and the premium of the plan and tier of coverage he enrolls in.
4. Dunn's salary shall be reduced by the amount of any necessary payroll deduction for health insurance premiu ms in excess of the agreed City contribution on a before-tax basis.
5. Dunn may choose to opt out of participation in the City's medical insurance plans. Upon the City's rece ipt of written notice by Dunn that he wishes to opt out and appropriate proof of alternate coverage, the City will remove Dunn from cover age on the City's plan as soon as possible and shall thereafter deposit $125 per pay period into a retiree health savings account (RHSA) or directly to Dunn in lieu of contributions to medical insurance as provided in Section C(2)(a) above. The per pay period amount shall be paid directly to Dunn during any period between exercising the opt -out provision and appropriate implementation of the RHSA.
a. If during the term of this Agreement, Dunn elects to re-enroll in City sponsored health coverage, he shall no longer be eligible for this retiree health savings account contribution. Dunn's re-enrollment in City sponsored health coverage shall be subject to the following terms:
i.
Enrollment may only occur at the City's Open Enrollment or upon any qualifying event rec ognized by the City's health insurers.
ii. The City's contributions to the medical plan selected by Dunn shall be at the rate spec ified in Section C(2)(a) and C(3) above.
D. Retiree Health. In lieu of Dunn's elig ibility for a contribution to health insurance after retirement from t he City, the City agrees to make contributions of $125 each pay period that this Agreement is in effect into a retiree health savings account in a plan to be implemented by the City.
E. Life Insurance. Dunn shall be eligible for group life insurance equal to his annual base salary up to the annual base salary maximum set in the group policy, which at the Effect ive Date of this Agreement is $200,000. Dunn is eligible to purchase voluntary City group term life insura nce through payroll 5 City of Fullerton
Employment Agreement – Robert Dunn
deduction.
F. Long-Term Disability Insurance. The Ci ty shall pay 100% of the premium for Dunn to be eligible for the City's long term disability insurance coverage.
G. Consolidated Omnibus Budge t Reconciliation Act of 19 85. In the event Dunn is eligible to remain on a City healt h or dental insurance plan following separation from employment other than retirement, the City may pursuant to the Consolidated Omnibus Budget Re conciliation Act of 1985 (COBRA) charge Dunn for selected coverage the maximum ra te permissible by law (presently 102% of the premium for an active employee).
H. Medical Examination. Dunn is eligible for reimbursement of up to $750 per year for the cost asso ciated with undergoing a comprehensive medical examination. Funds not utilized for this purpose may be carried over from one year to the next up to a maximum accrual of $2,000. Upon submission of certification of completion of a curr ent comprehensive medical exam, all or part of these amounts may be conver ted to taxable income to pay for expenses which qualify under an Internal Revenue Code Section 125 Medical Reimbursement Account, or for reimburs ement of Dunn's enrollment in a health club or in a related "wellne ss" program - e.g., smoking cessation, stress reduction or weight control.
I. City Contribution to a De ferred Compensation Plan. City shall deposit a lump sum amount of $19,500 $12,750 into a 457 Deferred Compensation plan for Dunn in July 2021 2023. and each Each July thereafter, during the term of this Agreement, the City shall deposit a lump su m amount of $3,000 into Dunn’s 457 Deferred Compensati on plan account. in the amount of the annual elective deferral limit allowable by tax law. The amount shall be fully earned for any portion of a fiscal year that Dunn is employed as Chief of Police.
SECTION 5: Vehicle Use, Uniform Allowance and Service Weapon
A. Vehicle Use. City agrees to provid e Dunn a City vehicle and necessary service, fuel, equipment and maintenance. Dunn is author ized by the City to use the City vehicle for personal use to and from home and on-call purposes only in his official capacity as Polic e Chief. In exchange therefor, Dunn agrees:
1. To operate the City vehicle at all times in a ccordance with the laws of the State of California or other appli cable jurisdictions within the United States.
2. To not drive or allow the City vehicle to be driven outside the jurisdiction 6 City of Fullerton
Employment Agreement – Robert Dunn
of the United States of America.
3. To fuel the vehicle with appropriate fuel dispensed from City fueling stations or purchased in accord ance with City purchasing rules and policies.
4. To not operate the City vehicle while under the influence of alcohol or any controlled substances.
5. To not allow any person other than a current employee of the City of Fullerton to operate the City vehicle.
6. To reasonably maintain the exterior and interior condition of the City vehicle and to immediately report all service and mechanical repair needs to the Public Works Fleet Division.
7. To not use or allow the use of tobacco products, e-cigarettes or vapor devices inside the City vehicles.
8. To notify the local police agency an d request a report of any accident involving or damage incurred by the City vehicle, except that, in the case of an accident within the Ci ty of Fullerton, an outside police agency shall be contacted to investigate the accident.
9. To complete a City of Fullerton Incident Report form and prov ide it to the City Manager within 24 hours of any incident involving the City vehicle.
10. City and Dunn believe t he authorized personal use to and from home is not subject to taxation. In the event of changes in the law or application of the law, any resultant tax liabilities shall be the sole responsibility of Dunn.
B. Uniform Allowance. The City shall pay Dunn the amount of $50.00 per pay period for the purchase and maintenance of uniforms. Effective July 7, 2023, this amount shall be increased to $100 per pay period.
C. Duty Weapon. Dunn shall be issued a duty weapon per the policy of the Fullerton Police Department.
SECTION 6: Paid Leave
A. Holiday Leave Program.
1. Dunn shall be eligible for paid leav e on the following City recognized 7 City of Fullerton
Employment Agreement – Robert Dunn
holidays:
January 1, New Year's Day
The third Monday in February, Presidents' Day
The last Monday in May, Memorial Day
July 4, Independence Day
The first Monday in September, Labor Day
November 11, Veteran's Day
Thanksgiving Day
The Friday following Thanksgiving Day
December 24, Christmas Eve
December 25, Christmas Day
December 31, New Year's Eve
2. No other day shall be such a ho liday unless it is a non-recurring holiday designated specifically by t he President of the United States and/or the Governor of California, and approved by the City Council.
3. Dunn will receive holiday leave time in the amount of 9 hours or the length of his work shift, whic hever is less, to be used when a designated City holiday falls on his regular wo rkday and he is not required to work. The hours will be pa id on the day the holiday occurs except as provided in Section 6, A( 3)(a) and (b), below. There shall be no additional cash value for holiday leave hours.
a. If Dunn is required to work on a holiday, he will receive Discretionary Holiday Leave time in the amount of 9 hours or the length of his work shift, whichever is less, to be used at a later time in accordance with rules set forth herein.
b. Dunn will receive Discretionary Holiday Leave time in the amount of 9 hours or the length of his work shift, whichever is less, when a City designated holid ay falls on a day that is not one of his regular work days. These hours may be used at a later time in accordance with rules set forth herein.
c. Discretionary Holiday Leave time received under this Section must be used during the fiscal year in which it is received. Hours not used will expire. There will be no cash value associated with the holiday discretionary leave hours received under this provision.
4. In the event that Dunn 's work duties require him to work on a City recognized holiday, he shall not be entitled to additional compensation. 8 City of Fullerton
Employment Agreement – Robert Dunn
B. Vacation. Dunn sh all accrue vacation leave at t he rate of 160 hours per year.
Dunn may accumulate credit up to 360 hours. Dunn is encouraged to use at least 80 hours of vacation leave per year . If Dunn is at his maximum accrual and unable to take vacation leave, 80 hours shall be converted to cash. In addition, Dunn shall be pe rmitted to convert up to 80 hours to cash each payroll year in accordance with the City's annual leave conversion program.
C. Sick Leave. Dunn shall earn and accumulate 3.69 hours of sick leave for each pay period he has worked at least one fu ll regular workday or been on paid vacation. He may use such sick leave in accordance with rules applying to Executive employees.
D. Bereavement Leave. Dunn shall be e ligible for bereavement leave of up to 27 hours in accordance with the rules applying to Executive employees.
E. Executive Leave. Dunn shall be entitled to 81 hours of paid Executive Leave per fiscal year. Such leave shall not accrue from year to year. Unused Executive Leave shall be lost at the end of each fiscal year, and shall not be converted to any other form of compen sation. At the discr etion of the City Manager, additional leave time may be granted.
SECTION 7: General Business Expenses
A. City recognizes that Dunn may incur expenses of a non-personal, job related nature that are reasonably necessary to Dunn's service as Chief of Police.
City agrees to either pay such expen ses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according City's regular reimbursement requirem ents or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by docum entation meeting City's normal requirements and must be submitted within time limits established by City.
B. City agrees to budget and pay for professional dues, membership and subscriptions necessary for Dunn's participation in such organizations as the City Manager and Dunn may agree to as necessary and appropriate.
C. City agrees to budget and to reimbur se or pay for r easonable costs for attendance and participation in meetin gs, institutes, training programs, conferences, conventions and similar gatherings that support leadership development and the advancement of Part ies' mutually agreed upon goals, and which are related to Dunn's duties or City's operations and held in the continental United States. For purp oses of this paragraph, reasonable expenses are limited to t he reasonable and actual cost of registration, coach- 9 City of Fullerton
Employment Agreement – Robert Dunn
class airfare (where applicable), ground transportation and meals. Reasonable expenses will also include the r easonable and actual cost of lodging for meetings greater than 60 miles outside the City of Fullerton boundaries.
D. The expenses to be budgeted and paid in Sections (A), (B), and (C) above, are exclusive of reasonabl e expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City Ma nager. City will separate ly budget and pay for membership and participation in communi ty, civic or other organizations or events in which City requires Dunn to participate.
SECTION 8: At-Will Employment Relationship
A. Dunn is appointed by, and serves as Chief of Police at the pleasure of, the City Council. The City and Dunn agree that City Council ha s, through this Agreement, delegated author ity for supervision and management of Dunn as Chief of Police, including discipline and dismissal to the City Manager.
Nothing in this Agreement shall preven t, limit or otherwise interfere with the right of City to terminate this Agreem ent and the appointment of Dunn as Chief of Police at any time, with or without Cause (as defined below).
B. If this Agreement is 1) terminated without Cause during the Initial Agreement Period or first three-year extension period; or 2) if City elects not to exercise the first three- year extension period upon expiration of the Initial Agreement Period; or 3) Dunn elects to be reinstat ed to his previous position of Police Captain, Dunn shall be en titled to revert back to his previous position as Police Captain and shall be entitled to all compensation, benefits, and employment rights of a Police Captai n at top step with the total years of service accrued by Dunn ("Right of Reversion"). Further, Dunn shall be required to meet all performance standards of a Police Captain in the event he exercises this Right of Reversion.
C. During any extension period following t he Initial Agreement Pe riod, if the City terminates this Agreement without cause, Dunn shall be given at least thirty (30) days written notice prior to th e effective date of the termination.
However, City and Dunn agree that termination without cause may not be exercised by the City during the final six months of any extension period of this Agreement or within ninety (90) days of the appointment of a City Manager. In the event City elects to terminate th is Agreement prior to a mutually agreed extension thereto, City shall pay Dunn for all services through the effective date of termination and Dunn shall have no right to any additional compensation or payment, except as provided in Section 9, Severance and Benefit Payoff at Termination, and General Release Agreement, below.
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Employment Agreement – Robert Dunn
D. Nothing in this Agreemen t shall prevent, limit or o therwise interfere with the right of Dunn to resign from his empl oyment with City, subject only to Dunn providing forty- five (45) calendar days' prior written notice to City of the effective date of his resignation. Upon the effective date of resignation, Dunn will forfeit all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential severance pay. The City acknowledges that Dunn s hall be eligible for payou t of the cash value of accrued vacation leave at the time of separation.
E. Government Code Section 3304(c) Ri ghts. The City and Dunn agree that Municipal Code Sections 2.33.010 and 2.33.020 s hall not apply to Dunn with respect to the City's disciplinary and ap peals procedures. In accordance with the rights Dunn has under Government Code Section 3 304(c), prior to action to terminate this Agreement, whether wi th or without caus e, Dunn shall be provided written notice of the proposed action and the reasons for removal from this appointment and in additi on, shall be provided the right to an administrative appeal. Su ch appeal shall be befor e an independent hearing officer appointed by the City Ma nager who shall make an advisory recommendation on the matter to the City Manager based solely on a review of the City's written notice (and suppo rting documentation, if any), documentation submitted by Dunn and an y oral presentation by the City or Dunn.
SECTION 9: Severance and Benefit Payoff at Termination, and General Release Agreement
A. If City elects not to exercise the second three-year extension period of the Agreement term following the first three-year extension period Initial Agreement Period , or if City terminates this Agreement during the second three-year extension period without cause, as determi ned by the City Manager through the authority delegated by the Ci ty Council by way of this agreement, and if Dunn signs, deliver s to the City Council, and does not revoke, the General Release Agreement in the form attached hereto as Exhibit A, City shall pay Dunn beginning on the effective date of termination a lump sum benefit in complian ce with Government Co de Section 53260 equal to twelve (12) times the monthly value of his then applicabl e Base Salary and shall provide twelve (12) months of medical coverage as provided in Section 4 as long as Dunn is already enrolled and receiving medical coverage through the City medical benefits plan at time of termination (collectively, "Severance"). The City acknowledges that Dunn shall be eligible for payout of the cash value of accrued vacation leav e at the time of separation. Upon mutual written agreement of the City and Dunn, in lieu of the Severance, Dunn may exercise the Right of Reversion in Section 8(B) above.
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Employment Agreement – Robert Dunn
B. If City terminates this Agreement with Cause, as determined by the City Manager exercising the authority delega ted by the City Council herein, Dunn shall not be entitled to any additiona l compensation or payment, including Severance, or Right of Reversion, exce pt that the City acknowledges that Dunn shall be eligible for payout of the cash value of accrued vacation leave at the time of separation. If the City intend s to terminate with Cause, based on a reason or reasons set forth in subparts 5 or 6, immediatel y below, the City Manager shall first deliver to Dunn a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Dunn to cure. If , in the City Manager's independent judgment, Dunn cures the identified reason or reasons for Cause termination, Dunn shall not be terminated therefor. As used in this Agreement, Cause shall mean any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arisin g out of Dunn's duties under this Agreement;
3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. Repeated failure to carry out a directive or directives of the City Council or City Manager; and
6. Any grossly negligent action or i naction by Dunn that materially and adversely: (a) impedes or disrupts the operations of City or its organizational units; (b) is detrimental to employees or public safety; or (c) violates rules or procedures of City.
C. If Dunn terminates this Agreement, Dunn shall not be entitled to any additional compensation or payment, including Severance or Right of Reversion. The City ackn owledges that Dunn shall be eligible for payout of the cash value of accrued vacation leave at the time of separation.
SECTION 10: Employee's Obligations and Hours of Work
Dunn shall devote his full pr ofessional energies, interes t, abilities and productive time to the performance of this Agreemen t and utilize his best efforts to promote City's interests. Dunn's du ties may involve expenditures of time in excess of the regularly established workday or in excess of a forty ( 40) hour workweek and may also include time outside normal office hours (includi ng attendance at City Council meetings and various community meetings , forums or workshops). Dunn's base 12 City of Fullerton
Employment Agreement – Robert Dunn
salary includes compensation for all hours worked. Dunn shall be classified as an exempt employee for purposes the Fair Labor Standards Ac t and shall not be entitled to any form of co mpensation for overtime. In re cognition of the significant time Dunn will need to devote outside norma l office hours to business activities of City and the exempt, salaried nature of the employment, Dunn is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Dunn's participation in activities out of the office, Dunn will generally be expected to keep office hours at City Hall, during normal business hours.
SECTION 11: Confidentiality
A. Dunn acknowledges that in the course of hi s employment contemplated herein, Dunn will be given or will have access to co nfidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ("Confidential Information"). Such Confidential Information may include, but is not limi ted to, all information given to or otherwise accessible to Dunn that is not public information or would be exempt from public disclos ure as confidential, protected, exempt or privileged information. Dunn shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confi dential Information to others without the express written consent of City.
B. The obligations of City and Dunn unde r this Section 11 shall survive the termination of this Agreement.
SECTION 12: Outside Activities
Dunn shall not engage in any activity, c onsulting service or enterprise, for compensation or otherwise, which is ac tually or potentially in conflict with, incompatible with or inimical to, or which materially interferes with his duties and responsibilities to City (Cal. Govt. Code §§ 1125 et seq.).
SECTION 13: Defense and Indemnification
In accordance with the provisions of California Government Code Sections 995 and 995.2 as they currently exist or may her eafter be amended, City shall defend and indemnify Dunn, using legal counsel of City 's choosing, against any civil action or proceeding brought against Dunn, in his official or indi vidual capacity or both, on account of an act or omission in the scope of his employment as Chief of Police, unless such act or omission was due to actual fraud, corrupt ion, or actual malice. In the event the City determines there is a conflict of inte rest between the Parties and Dunn and independent coun sel is required for Dunn's de fense, City shall select and pay the reasonable fees of such independ ent counsel for Du nn's defense. Dunn shall cooperate fully in the investigatio n and defense of any civil action or 13 City of Fullerton
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proceeding.
Dunn acknowledges and agrees that Ci ty reserves its rights pursuant to Government Code Secti on 825(a) not to pay any judgment, compromise, or settlement until it is establis hed that the injury arose out of an act or omission occurring within the scope of his employm ent, and that City's agreement to defend and indemnify him does not constitute an agreement to pay any punitive damages awarded against him. In t hat regard, Dunn acknowle dges and agrees that pursuant to Government Code Section 825(b), City may not make a determination whether or not to indemnify an employee for an award of punitive damages until such time as the award is made.
SECTION 14: Other Terms and Conditions of Employment
City may fix other terms and conditions of employment, as it may determine from time to time, relating to the perform ance of Dunn, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law.
SECTION 15: Notices
Notice pursuant to this Agre ement shall be given by depositing written notification in the custody of the United States Postal Se rvice, postage prep aid, addressed as follows:
(1) City:
City of Fullerton c/o City Clerk
303 W. Commonwealth Ave Fullerton, CA 92832
(2) Dunn: on file
Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after the date of mailing.
SECTION 16: General Provisions
A. Integration. This Agreement sets fo rth the final, complete and exclusive agreement between City and Dunn relati ng to the employment of Dunn by City. Any prior discussions or represen tations by or between the parties are merged into this Agreement or are otherwise rendered null and void. The Parties by mutual wri tten agreement may amend any provision of this Agreement. Such amendments shall be in corporated and made a part of this Agreement. The foregoing notwithstanding , Dunn acknowledges that, except 14 City of Fullerton
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as expressly provided in this Agreemen t, his employment is subject to City's generally applicable rules and policies pertaining to employment matters, such as those addressing equal empl oyment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and his employment is, and will continue to be, at the will of the City Council.
B. Binding Effect. This Agreement shall be binding on the City and Dunn as well as their heirs, assigns, executors, personal representatives and successors in interest.
C. Choice of Law. This Agreement shal l be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Ordinances, Policies and Resolutions.
D. Severability. If any provision of this Agreement is held invalid or unenforceable, the remainde r of this Agreement shal l nevertheless remain in full force and effect. If any provision is held inva lid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.
E. Conflict with Municipal Code. The City personnel ordinan ces, resolutions, rules and policies shall apply to Dunn in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the Municipal Code, the City Municipal Code shall prevail over this Agreement.
F. Dunn's Independent Review. Dunn acknowledges that he has had the opportunity and has conducted an indepe ndent review of the financial and legal effects of this Agreement. Du nn acknowledges that he has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon an y representation of City , its officers, agents or employees other than those expressly set forth in this Agreement. Dunn acknowledges that he has been advised to obtain, and has availed himself of, legal advice with respect to the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates reflected below each signature.
CITY OF FULLERTON ROBERT DUNN II
Fred Jung, Mayor Robert Dunn II
15 City of Fullerton
Employment Agreement – Robert Dunn
Dated: Dated:
Approved as to Form:
Richard D. Jones, City Attorney
Dated:
Attest:
Lucinda Williams, City Clerk
Dated:
16 City of Fullerton
Employment Agreement – Robert Dunn
EXHIBIT A
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agr eement") is entered into by and between ROBERT DUNN II ("Dunn") and CI TY OF FULLERTON ("City"), in light of the following facts:
A. Dunn's employment with City concluded on (date.)
B. Certain disputes have arisen between City and Dunn.
C. City and Dunn each deny any liability whatsoever to the other.
D. City and Dunn wish to fully and finally re solve any and all disputes they may have with each other.
E. Dunn is hereby informed that he has twenty-one (21) days from receipt of this Agreement to consider it. City hereby ad vises Dunn to consult with his legal counsel before signing this Agreement.
F. Dunn acknowledges that fo r a period of seven (7) days following the signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This Agreement shall not become effectiv e or enforceable until the day the Revocation Period has expired.
G. Dunn acknowledges that the Salary Pa yment referenced in subsection 1 below represents all compensation, includi ng salary, accrued benefit balances and reimbursed expenses, due and payable to hi m through the date of employment termination. Dunn also acknowledges that City has made this Salary Payment without regard to whether he signs this Agreement. The Salary Payment does not constitute consideration for this Agreement. Dunn acknowledges that the Severance referenced in subsection 2 below is in excess of all amounts that are due and owing to him as a result of his employment by City.
1. Receipt of Salary Payment. Dunn hereby acknowledges receipt of a check or checks for all compensation owing to him, including salary, accrued benefit balances and reimburse d expenses ("Salary Payment") from City.
2. Severance. Within ten (10) days follo wing Dunn's signing, delivering to the City Council, and not revoking this Agreement, City shall pay Dunn the gross amount provided for in Secti on 9 of the Employ ment Agreement effective
, 2019, less applicable deductions, and shall provide the months of medical benefits as pr ovided in that same Section 9 ("Severance"). Dunn acknowledges that the Severance is in excess of all 17 City of Fullerton
Employment Agreement – Robert Dunn
amounts due and owing him as a result of his employment by City.
3. General Release. In considerat ion of the Severance to be paid and provided to Dunn, and other good and valuable consideration, Dunn hereby releases and discharges City and its past and present City Council Members, employees, repr esentatives and agents, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning and/or arising out of his employment with City which he now has, or ever had, in cluding but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Dunn Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, t he Older Workers B enefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore-Brown- Roberti Family Rights Act, the California Unruh Civil Rights Act, t he California Fair Employment and Housing Act, any other federal, stat e, or local employment practice legislation, or any federal or stat e common law, including wrongful discharge, breach of express or imp lied contract, or breach of public policy.
Dunn hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civ il Code of Californi a. Dunn understands and acknowledges the significance and cons equences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows:
A general release does not ex tend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affe cted his or her settlement with the debtor.
Notwithstanding the provis ions of Section 1542, and for the purpose of implementing a full and complete re lease and discharge of City and its past and present City Council Members, employees, representatives and agents, Dunn expressly a cknowledges that this General Release is intended to include in its effect, without limitation, all claims which he does not know or suspect to exist in his favor.
Dunn further acknowledges that he has read this General Release and that he understands that this is a gener al release, and that he intends to be legally bound by the same.
18 City of Fullerton
Employment Agreement – Robert Dunn
4. Fees. Dunn and City agree that in the event of litigation relating to this General Release Agreement, the prevai ling party shall not be entitled to recover his/its reasonable attorneys’ fees.
CITY OF FULLERTON ROBERT DUNN II
Fred Jung, Mayor Robert Dunn II
Dated: Dated:
Approved as to Form:
Richard D. Jones, City Attorney
Dated:
Attest:
Lucinda Williams, City Clerk
D a t e d :