2014/03/05 Robert A. Johnson FY15 separation agreement SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (hereinafter "Agreement") is
entered into by and between ROBERT JOHNSON (hereinafter "Johnson") and the CITY OF
MENIFEE (hereinafter"City") (Johnson and City are sometimes referred to collectively herein
as the "Parties,"and each individually as a"Party") and is made with reference to the following
facts:
RECITALS
A. Johnson is employed by City as the City Manager which is an AT-WILL position,
pursuant to that certain"Agreement for the Employment of City Manager" dated March 5, 2014,
as amended by "Amendment No. 1 to Agreement for Employment of City Manager" dated
October 7,2015 (the"Employment Agreement").
B. The Employment Agreement permits the City Council to terminate Johnson at
any time without cause upon the provision of sixty days prior notice ("Notice Period"), but
requires the payment of six months' severance (as defined therein) ("Severance"), in addition to
all accumulated administrative leave, vacation and sick leave ("Leave Payments") at his highest
full salary earned during his tenure with the City.
C. The City Council has conducted multiple performance evaluations of Johnson,
and through and as a result of that process Johnson has elected to resign from his position as City
Manager, so long as he receives an amount equal to the pay he would have received during the
Notice Period, together with the Severance and the Leave Payments,as calculated hereinbelow.
D. The parties have further agreed that in exchange for the consideration provided
under this agreement, Johnson will waive any and all claims against the City resulting from his
conditions of employment and/or that his performance evaluation and resulting resignation
violates or is inconsistent with Menifee Municipal Code section 2.08.100 which prohibits the
City Manager's "removal from office within a period of 90 days after any general municipal
election at which any new member of the City Council is elected."
E. This Agreement is to specifically encompass all of the claims and related factual
and legal circumstances related to Johnson' employment which were raised, or could have been
raised by the Parties,regardless of merit or substance(collectively referred to as the"Disputes").
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein,the Parties agree as follows:
1. Subject to the terms and conditions contained in Section 4 of this Agreement,
Johnson' shall resign from his employment with City effective at the close of business on
January 4, 2017 (the "Separation Date"). Johnson acknowledges and agrees that he has no
further right to any employment with the City after the Separation Date. Johnson' final
paychecks (less withholdings and deductions), including any accrued comprehensive annual
leave pay and administrative time, if any, will be tendered to Johnson in accordance with City
policies as set forth in Sections 2 and 3 of this Agreement. Johnson' shall return all City-owned
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equipment, keys, identification cards, badges and any other City equipment in his possession,
and pick up his personal belongings from the City on or before the Separation Date.
2. Following the end of the revocation period, as set forth in Section 10 below (the
"Effective Date"), if Johnson has not revoked this Agreement, City shall pay Johnson a
severance payment as set forth below:
(a) Johnson shall receive from City his pay pursuant to the Employment
Contract for the period between December 26, 2016 and the Separation Date, which shall
be Five Thousand Eight Hundred Ninety Nine Dollars and Forty Five Cents ($5,899.45)
("Remaining Pay Amount").
(b) Johnson shall receive from the cash value of his compensation for the
Notice Period, which the parties agree is Thirty Five Thousand Two Hundred Seven
Dollars and Thirty Five Cents ($35,207.35) ("Notice Period Amount").
(c) In accordance with his Employment Agreement, Johnson shall receive
from City six months' severance which the parties agree totals Ninety Seven Thousand
Three Hundred Eighty Seven Dollars and Fifty Cents ($97,387.50) ("Contractual
Severance Amount"); and,
(d) In accordance with his Employment Agreement, City shall cash out and
pay Johnson the total of his earned and accrued vacation and sick leave ("Contractual
Accrued Leave Amount") as of the Separation Date, which the parties agree totals
Ninety Six Thousand Nine Hundred Ninety Seven Dollars and Nineteen Cents
($96,997.19); and,
The Remaining Pay Amount, the Notice Period Amount, the Contractual Severance Amount,and
the Contractual Accrued Leave Amount are collectively referred to as the "Settlement Amount"
and total Two Hundred Thirty Five Thousand Four Hundred Ninety One Dollars and Forty nine
Cents ($235,491.49).
Beginning on the Separation Date, Johnson shall be solely responsible for making his premium
payments directly to his medical insurance carrier.
3. The City shall pay Johnson the Settlement Amount in separate payments, as
follows:
(a) On January 13, 2017, City shall issue Johnson a check for the Remaining
Pay Amount and the Notice Period Amount;
(b) On or before February 10, 2017, City will issue a check to Johnson for the
full Contractual Severance Amount and the Contractual Accrued Leave Amount; and
4. If the City is contacted in writing or orally by any prospective employer for a
reference or job status, the current or acting Mayor is the only one authorized to respond. The
current or acting Mayor will only respond with Johnson' dates of employment, salary (if
requested), job title, and that he resigned effective close of business the Separation Date.
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Johnson agrees to direct such inquiries to the current or acting Mayor, and not to any other City
personnel. Notwithstanding the foregoing, if Johnson lists any current or former City employee
or official as a reference and requests a reference from such person, such current or former
employee may, if he or she chooses, provide a reference. Should Johnson request a reference as
noted herein, he waives any claims related to any statements made, including any claims that
such statements might otherwise constitute a breach of this Agreement. Notwithstanding any
provision to the contrary contained herein, the Parties agree that the statement attached hereto
and incorporated herein as Exhibit A may be distributed and/or read by either party to any person
and the public (including specifically the media), as a further explanation of the facts and
circumstances surrounding Johnson' separation. The Parties recognize that they are currently in
the process of drafting a statement other than that contained in Exhibit A, which may be released
as an alternative to Exhibit A, so long as both parties mutually agree to its distribution.
5. For the purposes of this Agreement, the following definitions will apply:
"Johnson" shall include himself, his spouse, children, successors, assigns and representatives.
The "City" shall include the City, its past and present City Council members, managers, officers,
agents, employees, attorneys, insurers, successors, predecessors, assigns and representatives.
"Party" shall be defined as Johnson, as defined herein, or City, as defined herein; and "Parties"
shall be defined as Johnson and City, as each is defined herein, collectively. In consideration of
the execution of this Agreement and other good and valuable consideration, Johnson shall and
does hereby fully, finally and forever irrevocably and unconditionally acquit and discharge, settle
with and release the City as well as its officers, agents, and representatives, from any and all
claims, demands, causes of actions, contracts, covenants, representations, warranties, promises,
undertakings, actions, suits, obligations, controversies, debts, costs, expenses, accounts,
damages, losses, judgments, liabilities or demands of any nature whatsoever, anticipated or
unanticipated, known or unknown, with the sole exceptions of workers compensation and
unemployment insurance benefits (collectively"Claims")that they may have or claim to have at
any time up to and including the time this Agreement is executed by the respective Parties. The
matters released include by way of example and not limitation: claims for injuries to Johnson
arising out of or relating to the course and scope of employment with the City and the separation
of such employment; claims for denial of due process under any City rule, or state or federal law
or regulation; claims for alleged violations of any contracts, express or implied, or any covenants
of good faith and fair dealing, express or implied; claims of any legal restrictions on the City's
right to discipline or terminate employees, any "constructive discharge," or "wrongful
discharge," or any tort; claims for defamation, invasion of privacy and emotional and/or personal
injury or distress or the like; claims for sick leave, vacation, compensated time off, separation
pay or severance; claims for violation of any local, state, federal or other government statute,
regulation or ordinance, as amended, or any public policy expressing such statute, regulation or
ordinance, including, without limitation, the following: Title VII of the Civil Rights Act of 1964
(race, color, religion, sex, and national original discrimination); 42 U.S.C. Sections 1918 and
1983 (discrimination in making and enforcement of contracts, deprivation of rights,
respectively); Age Discrimination in Employment Act(42 U.S.C. Sections 621 and 634); Federal
and California Equal Pay Acts (29 U.S.C. Section 206(d)(1) and California Labor Code
Sections 3200 et seq.); state and federal wage and hour laws, including the federal Fair
Labor Standards Act and the California Labor Code; the California Business &
Professions Code, including Business & Professions Code Section 17200 et seq.; the
California Fair Employment and Housing Act (Government Code Sections 12940, et seq.,
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including discrimination on the basis of race, color, national origin, ancestry, physical handicap,
mental condition, marital status, sex or age); California Labor Code Section 1102.1 (sexual
orientation); Executive Order 11141 (age discrimination); Rehabilitation Act of 1973 (29 U.S.C.
Sections 503 and 504); Older Workers Benefit Protection Act; Amendments to the Age
Discrimination in Employment Act (AREA) (29 U.S.C. Sections 621, et seq.); Civil Rights Act
of 1991; Americans with Disabilities Act; state or federal Family Medical Leave Acts or the
Unruh Civil Rights Act(California Civil Code Sections 51, etseq.).
6. The Parties intend and agree that this Agreement will be effective as full, final
and general release of and from all matters covered herein. In furtherance thereof, the Parties
acknowledge that they are familiar with and have secured independent advice as to California
Civil Code Section 1542 which provides as follows:
A general release does not extend 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 affected his or her settlement with the debtor.
Johnson expressly waives and releases any right or benefit which he may have or may in the
future have under California Civil Code Section 1542 and all similar laws, rules and statutes to
the fullest extent that such rights or benefits may be lawfully waived or released.
7. [RESERVED]
8. Johnson and City acknowledge and represent that, upon completion of the
payments outlined in Section 2 and Section 3 Johnson will have been paid all wages due and
owing to him from the City under the Employment Agreement, including, but not limited to, all
minimum wages, overtime compensation, commissions, bonuses, deferred compensation,
waiting-time penalties and liquidated damages. Johnson and City further acknowledge and
represent that Johnson has been paid and reimbursed for all necessary expenditures or losses
Johnson incurred under the Employment Agreement in direct consequence of the discharge of
Johnson' duties, or of Johnson' obedience to the directions of the City. Accordingly, Johnson
and City understand that the release provisions contained in this Agreement release and
discharge the City from any and all claims that Johnson may have against it for unpaid wages
and other compensation, expenses and losses, including,but not limited to, any claims for unpaid
wages, salary, bonuses, commissions, stock, stock options, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of compensation, except as set forth in Section
2 of this Agreement.
9. Johnson expressly acknowledges and agrees that by entering into this Agreement
he is waiving any and all rights or claims that he may have arising under the Age Discrimination
in Employment Act of 1967 as Amended which may have arisen on or before the date of
execution of this Agreement. Johnson further expressly acknowledges and agrees that (a)he has
entered into this Agreement voluntarily, free from duress, coercion, or mistake of facts; (b)this
Agreement is in writing and understandable; (c)he is waiving current ADEA claims explicitly
and cannot waive future ADEA claims; (d)he has been advised and is hereby advised in writing
to consult with an attorney before signing this Agreement; (e)he has been given a copy of this
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Agreement and informed that he has twenty-one (21) days within which to consider the
Agreement, which he has elected to waive; and (f)he is hereby informed that he has seven (7)
days following the original date of his execution of this Agreement in which to revoke the
Agreement. Any notice of revocation must be in writing and must be delivered to the Acting
City manager prior to the end of the seventh (711) calendar day following the date Johnson
executes this Agreement. The Agreement shall become binding and effective on the eighth (8`h)
day after the date Johnson executes this Agreement unless a revocation has been filed. If a
revocation is filed within the seven(7) day period, then this Agreement and Johnson' resignation
become null and void.
10. Notwithstanding any other provision of this Agreement to the contrary, it is the
parties' intent that this Agreement be admissible, binding and enforceable under California Civil
Code section 664.6. In the event that an action is filed to enforce this Agreement, it shall be
subject to disclosure within the meaning of California Evidence Code section 1123(a), (b) and
(c), and not privileged from disclosure under California Evidence Code section 1119.
11. The Parties represent and warrant that they have not filed any complaint, charge,
claim, or demand against the other Party in any local, state, or federal agency or court, and each
party covenants not to file any such claim, demand, cause of action or complaint for any of the
matters released herein. Johnson acknowledges that he has not assigned any monetary payment
under this Agreement to any person or entity.
12. Each Party acknowledges that he or it has been or has had the opportunity to be
represented by independent legal counsel and/or labor representative of his or its own choice
through all of the negotiations preceding execution of this Agreement, and each Party has duly
executed this Agreement with the consent and approval of such independent legal counsel or
labor representative if a Party has chosen to be so represented.
13. This Agreement contains and expresses the entire and final agreement of the
Parties with respect to the matters covered herein, and supersedes all negotiations, prior
discussions, prior agreements and preliminary agreements between the Parties. No promises or
representations, express or implied, concerning this Agreement have been made by the Parties
other than those contained in this Agreement.
14. Any alteration or modification of this Agreement must be in writing and signed
by each Party to it, or by his or its authorized representatives. In the event a court of competent
jurisdiction determines that any provision of this Agreement or application of it is void, invalid,
unenforceable or contrary to law for any reason, its remaining provisions shall remain in full
force and effect.
15. This Agreement shall forever bind and inure to the benefit of the Parties and their
respective successors and assigns of every type.
16. The Parties acknowledge that there will likely be widespread media coverage
related to Johnson' separation from the City. The statement attached and incorporated herein as
Exhibit A is intended as a response to such coverage, unless the parties mutually agree to release
a different statement in response to media coverage. No media story based upon such statement
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(or other speculation relating to the circumstances surrounding this Agreement) shall be the sole
basis for any claim that either party has breached this Agreement.
17. Each Party to this Agreement denies its liability to the other Party hereto in
connection with the subject matter of this Agreement, but desires to resolve the Disputes, rights,
claims and causes of action, if any, between and among them without the necessity of litigation.
This Agreement is a compromise of the Disputes, claims and rights, and shall not constitute or be
construed as an admission by either of the Parties of wrongdoing or violation of any law, statute,
duty or contract whatsoever, or that any of the Parties was entitled to any damages or amounts
demanded incident to this controversy.
18. This Agreement may be executed in two or more counterparts, including
typewritten, photographic, email or facsimile copies, each of which shall be deemed to be an
original Agreement, and all of which together shall constitute one agreement.
THE UNDERSIGNED PARTIES, AND EACH OF THEM, ACKNOWLEDGE
THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND RELEASE IN ITS
ENTIRETY, HAVE HAD THE OPPORTUNITY TO DISCUSS THE CONTENTS OF
THE AGREEMENT WITH THEIR RESPECTIVE ATTORNEYS OR
REPRESENTATIVES AND, AS A RESULT, FULLY UNDERSTAND THE TERMS AND
CONSEQUENCES OF THE AGREEMENT. BASED ON THEIR KNOWLEDGE AND
UNDERSTANDING OF THE AGREEMENT, THE PARTIES REPRESENT AND
WARRANT THAT THEY FREELY AND VOLUNTARILY ENTER INTO IT ON THE
DATE SET FORTH BELOW.
(signatures on next page)
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
set forth opposite their respective signatures.
DATE: ,2017 CITY OF MENIFEE
By:
Neil A. Winter
Mayor
ATTEST:
By:
Sarah Manwaring
City Clerk
APPROVED AS TO FORM:
RUTAN&TUCKER, LLP
By:
Jeffrey T.Melching
City Attorney
DATE: �,04,160q, ,2017
RO ERT JOHNSON
2346/022390-0004
C�
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
set forth opposite their respective signatures.
DATE: 2017 CITY OF MENIFEE
f
By:
Heil A. Wiri r._-'
Mayor
ATTEST:
By:
Sarah Manwaring
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
By:
J rey T. Melchin
City Attorney
DATE: , 2017
ROBERTJOHNSON
2346/022390-0004
10215203.1 a01/04117 -7-
EXHIBIT A
There has been a significant amount of media attention to the issue of the City Manager's
resignation. The City wishes to clarify the situation. First, the Council wishes to thank Mr.
Johnson for his service and express appreciation for the many positive contributions he provided
to the City during his tenure. Nevertheless, through the City Council's recent performance
evaluation process, the Council and Mr. Johnson came to the mutual agreement that the City is
now at a juncture where it would be best for all involved to proceed under the leadership of a
new City Manager. Consistent with that decision,Mr. Johnson has agreed to resign his position.
The Council has also decided to place the city's Community Development Director Mr. Jeff
Wyman as the Acting City Manager. The Council is actively looking to place an Interim City
Manager who, along with doing the regular duties of the position, will assist the Council in
recruiting and selecting a permanent City Manager. It is the goal of the Council to select a
person with substantial skill sets lending to those of a successful City Manager.
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