EMPLOYEE TRANSITION AGREEMENT AND RELEASE
BETWEEN THE CITY OF VERNON AND ANGELA P. KIMMEY
This Employee Transition Agreement and Release (“Agreement”) is entered into by and between the City of Vernon (“City”), and Angela P. Kimmey (“Employee”) (collectively “Parties”).
A. At-Will Agreement. City and Employee are parties to an At-Will Employment Agreement dated January 31, 2022 (“At-Will Employment Agreement”), by which the City employs Employee as an at-will employee in the classification of Deputy City Administrator.
B. Transition to For Cause. Based on current operational and personnel needs, the City desires to transition Employee from the at-will classification of Deputy City Administrator to the classification of Deputy General Manager of Public Utilities. Employee’s new classification will not be designated as at-will and will not require an employment agreement.
C. Termination of At-Will Agreement. In order to effectuate this classification change, the Parties agree and acknowledge that Employee’s At-Will Employment Agreement will terminate upon the effective date of this Agreement and in tandem with the Employee’s transition from the classification of Deputy City Administrator to the classification of Deputy General Manager of Public Utilities .
D. Salary Grade and Step. Upon Employee’s transition to the classification of Deputy General Manager of Public Utilities , Employee will be placed into the same salary grade and step she currently receives in the Deputy City Administrator classification. Employee’s salary and compensation as Deputy General Manager of Public Utilities will be administered through applicable Citywide compensation schedules and policies, or other salary schedule increases as may be approved by City Council.
E. Benefits Unchanged. Upon Employee’s transition to the classification of Deputy General Manager of Public Utilities, Employee shall continue to receive the same Executive benefits she currently receives in the Deputy City Administrator classification, including but not limited to auto allowance, vacation and sick leave accrual, and eligibility for Retiree Medical Benefits under Section 18(A) of the Citywide Fringe Benefits Policy, Executive category.
F. No Severance. The Parties agree and acknowledge that because Employee will continue to be employed by the City upon termination of her At-Will Employment Agreement, Employee is not entitled to severance pay pursuant to Section 6 of the At-Will Employment Agreement.
G. Consideration and Release. For good and valuable consideration, the adequacy of which Employee acknowledges, and as a material inducement to the City to maintain Employee’s existing salary and Executive-level benefits as referenced herein, Employee hereby releases and forever discharges the City and all of its current and former employees, agents, attorneys, insurers, and all individuals or entities acting on their behalf (collectively, the “Released Parties”), from any and all charges, claims, wages, causes of action, damages, and losses, of
whatever kind or nature (including but not limited to claims for wages, which have been fully paid prior to the execution of this Transition Agreement), directly or indirectly relating to Employee’s employment with the City, this transition of Employee’s classifications, or relating to or arising from any alleged act or omission by any of the Released Parties in connection with Employee’s employment up to the Effective Date of this Agreement.
H. Release of All Claims. Without limiting the generality of the foregoing, Employee expressly waives and releases all claims under any local, state, or federal law or regulation, all common law claims, all contractual claims, all claims for attorneys’ fees, and all claims pertaining to severance pay, wages, sick leave, vacation pay, life insurance, medical insurance, disability, or any other benefit of employment up to the Effective Date of this Agreement.
I. Section 1542 Waiver. Employee acknowledges and agrees that she is aware of and has been advised of California Civil Code Section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER,
WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Employee hereby waives all rights which this provision or any comparable provision under any state or federal law may give to Employee. Employee intends to release all claims which she may not now know or suspect to exist in her favor against the City up to the Effective Date of this Agreement. Employee recognizes and acknowledges that factors which have induced Employee to enter into this Agreement may turn out to be incorrect or to be different from what Employee had previously anticipated, and Employee hereby expressly assumes any and all of the risks thereof and further expressly assumes the risks of waiving the rights provided by California Civil Code section 1542.
J. Compliance with Older Workers Benefit Protection Act (“OWBPA”). Employee is 40 years of age or older, and is advised of and acknowledges the following:
i. Understanding. This waiver/release is written in a manner understood by Employee. ii. Twenty-One Day Consideration Period. Employee is entitled to a reasonable time of at least twenty-one (21) days to consider and accept the terms of this Transition Agreement by fully executing it below. During this twenty- one (21) day period and before signing this Agreement, Employee is encouraged to consult with legal counsel regarding the terms of this Agreement, at Employee’s own expense. Employee understands that the terms of this Acknowledgment are null and void if not accepted by Employee within the twenty-one (21) day period, and that the transition and classification change described herein will not take effect. Employee understands that she may sign the Agreement before the conclusion of
the twenty- one (21) day period. Employee agrees that she has read this Agreement, and understands that she is under no obligation to consent to this waiver and release of claims.
In the event Employee decides to sign this Agreement in advance of the twenty-one (21) days provided for in this paragraph, Employee acknowledges that she does so freely and has been given the opportunity to review this Agreement with legal counsel. Employee further represents that this decision is in Employee’s sole discretion, without coercion from the City.
iii. Release of Age Discrimination in Employment Act Claims. By signing this Transition Agreement, Employee waives any claims she has or might have against the City under the Age Discrimination in Employment Act (“ADEA”) or the OWBPA that accrued prior to the Effective Date of this Agreement, as defined below in Section J(iv). iv. Revocation Period. Employee will have seven (7) calendar days from the date Employee signs this Agreement to revoke her signature by notifying the City in writing before the expiration of the seven (7) calendar day period. The written revocation must be sent within seven (7) calendar days of Employee’s execution of this Agreement. This Agreement shall not become effective or enforceable (and Employee understands that she will not receive the severance payment) until the revocation period has expired. If the last day of the revocation period is a Saturday, Sunday, or legal holiday, then the revocation period will not expire until the next following day that is not a Saturday, Sunday, or legal holiday.
K. Effective Date. This Agreement and Release shall not become effective until after the revocation period set forth in Section J (iv) has passed (the “Effective Date”). This is to confirm that after execution and expiration of the revocation period, Employee will transition from the at-will classification of Deputy City Administrator to the non-at-will classification of Deputy General Manager of Public Utilities and continue to receive the same salary and benefits as set forth in Paragraphs D & E herein.
L. No Prevention of Filing Charge/Complaint with or Participating in Investigation with Federal, State or Local Agencies. Nothing in this Agreement, including but not limited to the release provisions in sections G, H, I, and J, prevents Employee from filing a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission, or any other federal, state or local agency charged with the enforcement of any laws, although by signing this Agreement, Employee is waiving rights to individual relief based on claims asserted in such a charge or complaint, except where such a waiver of individual relief is prohibited.
Nothing in this Agreement prevents Employee from testifying in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged harassment or discrimination relating to or involving the City, or an agent or employee of the City, if Employee is required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.
M. Severability. Employee acknowledges and agrees that the provisions of this Transition Agreement and Release are both reasonable and enforceable. However, if any portion or provision of this Agreement and Release (including, without implication of limitation, any portion or provision of any section of this Agreement and Release) is determined to be illegal, invalid, or unenforceable by any court of competent jurisdiction and cannot be modified to be legal, valid, or enforceable, the remainder of this Agreement and Release shall not be affected by such determination and shall be valid and enforceable to the fullest extent permitted by law, and said illegal, invalid, or unenforceable portion or provision shall be deemed not to be a part of this Agreement and Release.
N. Construction. This Agreement shall not be construed against any one Party, but shall be construed as if jointly prepared by the Parties hereto. Any uncertainty or ambiguity shall not be interpreted against any one Party.
O. Governing Law. This Agreement is made and entered into in California, and shall be governed, interpreted, and enforced under the laws of California. The Parties agree that jurisdiction and/or venue of any action involving the validity, interpretation, or enforcement of this Agreement or any of its terms, provisions or obligations, or claimed breach thereof, shall exist exclusively within Los Angeles County, California.
P. Execution of Counterparts. This Agreement shall be executed by original inked signatures in any number of counterparts, each of which shall be deemed a duplicate original when all counterparts are executed, but all of which shall constitute a single instrument. Copies of original inked signatures submitted by electronic means (such as PDF version) or fax, shall be deemed the equivalent of original inked signatures.
EMPLOYEE HAS HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL RELATIVE TO
THIS TRANSITION AGREEMENT AND RELEASE AND HAS HAD A REASONABLE PERIOD OF TIME WITHIN WHICH TO CONSIDER SIGNING THIS AGREEMENT AND RELEASE. EMPLOYEE HAS SIGNED THIS ACKNOWLEDGMENT AND RELEASE VOLUNTARILY AND WILLINGLY.
Dated:
Angela P. Kimmey
Dated:__________________
_____________________________
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Brian Saeki, City Administrator
ATTEST:
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Genoveva Rocha, City Clerk
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Date