Resolution No. 10099RESOLUTION NO. 10,099
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF VERNON APPROVING AND AUTHORIZING THE
EXECUTION OF A`TERMINATION AGREEMENT AND
GENERAL RELEASE BY AND BETWEEN THE CITY OF
VERNON AND HECTOR ELIZALDE
WHEREAS, on March 3, 2008, the City Council of the City
of Vernon adopted Resolution No. 9567 approving an Agreement for
Consulting Services (the "Agreement") with Hector Elizalde
("Elizalde") to perform marketing, community outreach to
neighboring communities, and public relations services on behalf
of the City; and
WHEREAS, in furtherance of the City's organizational
restructuring objectives, the City desires to terminate the
Agreement with Elizalde; and
WHEREAS, by memo dated October 27, 2009, the City
Administrator has recommended that the City Council approve the
Termination Agreement and General Release ("Termination
Agreement") and authorize execution of the Termination Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon
hereby finds and determines that the recitals contained
hereinabove are true and correct.
SECTION 2: The City Council of the City of Vernon
hereby approves the. Termination Agreement and General Release, a
copy of which is attached hereto as Exhibit A and incorporated by
reference
SECTION 3: The City Council of the City of Vernon
hereby authorizes the City Administrator, or his designee, to
execute the Termination Agreement and General Release for, and on
behalf of, the City of Vernon and the City Clerk, or Deputy City
Clerk, is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon
hereby authorizes the City Administrator, or his designee, to pay
Elizalde $75,000.000 in accordance with the Termination Agreement
and to take whatever actions are deemed necessary or desirable for
the purpose of implementing and carrying out the purposes of this
Resolution and the Termination Agreement herein approved or
authorized.
SECTION 5: The City Council of the City of Vernon
hereby directs the City Clerk, or her designee, to send a copy of
the fully executed Agreement to Elizalde.
SECTION 6 The City Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this resolution,
and the City Clerk of the City of Vernon shall cause this
resolution and the City Clerk's certification to be entered in the
File of Resolutions of the Council'of this City.
APPROVED AND ADOPTED this 9th day of November, 2009.
AT TES
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MA UELA GIRON, City Clerk
Name: Hilario Gonzales
Title: Mayor / -,Mtir Pry -Tea
2
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No.
10,099, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council
duly held on Monday, November 9, 2009, and thereafter was duly
signed by the Mayor or Mayor Pro-Tem of the City of Vernon..
Executed this day of November, 2009, at Vernon,
California.
(SEAL)
MANUELA GIRON, City Clerk
3
EXHIBIT A
TERMINATION AGREEMENT AND GENERAL RELEASE
This Termination Agreement and General Release ("Agreement") is entered into
by and between Hector F. Elizalde ("Consultant"), an individual, and the City of Vernon,
a California charter city ("City"), as of October 1, 2009.
Recitals
A. City and Consultant entered into a Consulting Services Agreement,
effective as of April 1, 2008 ("Consulting Agreement").
B. Under its terms, the Consulting Agreement had an initial term of
one year and automatically renews each year for an additional term of one year unless
either party gives notice in writing to the contrary at least sixty (60) days prior to the
anniversary date.
C. The term and renewal provision of the Consulting Agreement
notwithstanding, City and Consultant desire to mutually terminate the Consulting
Agreement and their obligations and rights as provided in this Agreement.
D. City and Consultant desire to reaffirm the continuing force and
effect after termination of the confidentiality provisions of the Consulting Agreement, as
provided in Sections K and L of the Consulting Agreement.
E. City and Consultant desire to amicably resolve any and all
controversies, disputes, or claims between them according to the terms of this
Agreement.
NOW THEREFOREJn consideration of the above recitals and of the mutual promises
set forth below, the parties hereby agree:
1. Termination of Agreement and Continuing Obligations.
A. City and Consultant agree to terminate the Consulting Agreement,
effective October 1, 2009, subject to the continuing confidentiality obligations of
Consultant under Sections K and L of the Consulting Agreement and the terms of this
Agreement.
B. Consultant acknowledges that all information, insights and work
product associated with the conduct of services under the Consulting Agreement are and
continue to be the sole property of the City, per Section F of the Consulting Agreement.
C. Consultant will deliver all records, notes, data and memoranda that
are City property and that are in Consultant's possession or under Consultant's control to
City at no additional cost to City and within one calendar week of signing the Agreement.
1177245-1 . 1
If no such materials are in Consultant's possession or under Consultant's control,
Consultant will notify City accordingly in writing.
2. Termination Payment.
Notwithstanding mutual termination of the Consulting Agreement, City
agrees to provide to Consultant the following termination payment in exchange for
Consultant's agreement to the terms of this Agreement: -
A. City will make a termination payment to Consultant consisting of
the 125 hour monthly minimum under the Consulting Agreement multiplied by the
hourly rate of $100.00 for all months remaining on the current term of the Consulting
Agreement, through March 31, 2010. The parties agree that the monthly payment is
$12,500.00 (125 times $100.00 equals $12,500.00). Consultant will continue to submit
monthly invoices at this amount for the period through March 31, 2010. City, in its sole
discretion, may elect to pay all or part of the total $75,000.00 termination benefit at any
time in full or partial satisfaction, as applicable, of its obligations under this paragraph
(October 2009 through March 2010 is six months times $ equals $75,000.00).
12�ti-op
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B. Except as provided in this Agreement and except for pending
invoices, if any, Consultant agrees that he is owed no other compensation or expenses
and that no other payment is due him arising from or in any manner related to his services
under the Consulting Agreement.
3. Release.
A. In consideration of the performance of the provisions contained in
this Agreement, Consultant hereby forever relieves, releases, and discharges City, its City
Council, and each member thereof, and its officers, employees, and agents ("Releasees")
from any and all claims, debts, obligations, causes of action, demands, liabilities, costs, or
expenses of whatsoever kind or nature, whether known or unknown, suspected or
unsuspected, arising from or relating to Consultant's engagement by City, including the
Consulting Agreement and the termination of the Consulting Agreement. Consultant
further agrees that he will not institute any action or actions, causes of action (in law or in
equity), suits, debts, liens, claims, demands, known or unknown, in state or federal court,
or with any state, federal or local government agency arising from or attributable to any
act or omission of the City, its agents, and all persons acting by, through, under, or in
concert with the City, relating in any way to Consultant's engagement by City, including
the Consulting Agreement and the termination of Consulting Agreement. Consultant
shall not file any actions against the City or the Releasees in any state or federal court,
state or federal governmental administrative agency, or private organization. It is
understood that this Agreement is a bar to any such action or proceeding.
1177245-1 2
B. Consultant specifically acknowledges that he is aware of, and.
familiar with, the provisions of 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."
Consultant, being aware of this Statute and its meaning and effect,
expressly waives and relinquishes all rights and benefits he may have as well as any other
rights or benefits derived from any statutes or common law principles of similar effect
arising out of his employment with City and/or the termination of his employment with
City.
C. City and Consultant further agree that except as provided in this
Agreement, termination of the Consulting Agreement will be without recourse by either
party against the other and that this Agreement is a mutual release of further obligations
under the Consulting Agreement to the same extent as if the contract had not been
entered into in the first place.
4. Advice and Expense of Counsel.
A. Consultant acknowledges that he has been advised to consult an
attorney prior to executing this Agreement and that he has been provided with adequate
time to do so.
B. Each party shall bear its own costs and attorney's fees incurred in
connection with all matters leading to and including the negotiation and execution of this
Agreement.
5. Representations and Warranties.
A. Consultant acknowledges that he has read this Agreement
carefully, fully understands its terms, nature, and effect and is executing this Agreement
freely, knowingly, and voluntarily. In executing this Agreement, Consultant does not
rely on any inducements, promises, or representations by City or any person other than
the terms and conditions of this Agreement.
B. The parties acknowledge and agree that the facts with respect to
this Agreement may hereafter turn out to be other than or different from the facts now
known to them or believed by them to be true, and the parties therefore expressly assume
the risk of the facts being different and agree that this Agreement shall be in all respects
1177245-.1 3
effective and not subject to termination or rescission by reason of any such different
facts.
C. Consultant acknowledges and warrants that as of the date of this
Agreement, he is in good physical and mental condition, that he is fully competent to
manage his business affairs, and that he is not suffering from any physical or mental
disability of any type.
D. The parties represent and warrant that each of them is the sole and
lawful owner of all right, title, and interest in and to every claim, right, and other matter
which each party releases herein, and that each party has not otherwise heretofore
assigned or transferred, or purported to assign or transfer, to any person or entity, any
claims or other matters herein released. Consultant further represents and warrants that
he has not heretofore created or given rise to any lien or other right by which any other
party may claim all or any part of the monies to be paid by City pursuant to Section 2 of
this Agreement, and Consultant agrees to indemnify, defend, and hold harmless City
from any claim by any third party to all or any portion of said monies.
E. The parties and individuals executing this Agreement represent and
warrant that each of them has the authority to execute this Agreement on behalf of the
party on whose behalf said person is purporting to execute this Agreement.
F. Consultant represents and warrants that no action of any kind is
currently pending against City in any federal or state court or before any administrative
agency relative to Consultant's services to City or the termination of those services.
G. Each party agrees that such party will not take any action which
would interfere with the performance of this Agreement by any other party hereto or
which would adversely affect any of the rights provided for herein.
6. Confidentiality and Non -Disparagement.
A. Consultant agrees not to disclose to any persons the existence of
this Agreement or its contents, except that Consultant may disclose the terms to his
immediate family, attorneys, accountant, and tax advisor provided Consultant requires
such persons to maintain the confidentiality required in this paragraph and that this
paragraph shall be binding upon such persons.
B. Consultant represents and agrees that he will not make any
derogatory, disparaging, defamatory or slanderous statement about City, including its
officers, agents and employees, in any form, whether or not truthful. Any such
statements made, in any form and to any person shall be deemed to be a material breach
of this Agreement.
7. Written Modifications. This Agreement supersedes any prior written or
verbal adjustment of this matter and constitutes a complete resolution of all claims or
1177245-1 4
potential claims by Consultant against the City. There shall be no modification of this
Agreement except in writing signed by both parties.
8. Attorney's Fees to Enforce Aweement. In the event suit is initiated by
either party to enforce the terms of this Agreement, or for damages for breach of the
terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and costs.
\1V 9. No Admission of Liability. It is understood and agreed that this
Agreement shall not constitute or be construed as an admission of liability on the part of
the parties herein released.
10. Governing Law. This Agreement and the rights and obligations created by
this Agreement shall be governed by the laws of the State of California, without reference
to any law that may require application of the laws of another jurisdiction.
11. Agreement Binding. This Agreement is binding upon, and shall inure to
the benefit of, the heirs, executors, administrators, representatives, successors, and
assigns of the respective parties hereto and each of them.
12. Integration. This Agreement constitutes a single integrated written
contract expressing the entire agreement of the parties hereto relative to the subject
matter hereof. No covenants, agreements, representations, or warranties of any kind
whatsoever have been made by any party hereto, except as specifically set forth in this
Agreement. All prior discussions and negotiations have been and are merged and
integrated into, and are superseded by, this Agreement.
13. Severability. In the event that any provision or partial provision of this
Agreement should be held to be void, voidable, or unenforceable, the remaining portions
hereof shall nevertheless remain in full force and effect.
1177245-1 5
14. Facsimile Signatures and Counterparts. The parties agree that this
Agreement will be considered signed by a party when the signature of that party is
delivered by facsimile transmission. Such signature shall be treated in all respects as
having the same effect as an original signature. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which together shall
constitute one instrument.
THIS DOCUMENT CONTAINS A RELEASE OF ALL CLAIMS. YOUARE URGED
TO CONSULTANATTORNEYAND TO READ IT CAREFULLY BEFORE
SIGNING.
DATED:! ff,O --% �CW CONSULTANT
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DATED: CITY OF VERNON
("City")
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Its:
1177245-1 6.
CITY CLERK'S OFFICE
INTEROFFICE MEMORANDUM
DATE: November 10, 2009
TO: Donal O'Callaghan, City Administrator
FR Nelly Giron, City Clerk
RE: Resolution No. 10,099 - A Resolution of .the City Council of
the City of Vernon Approving and Authorizing the Execution
of a Termination Agreement and General Release By and
Between the City of Vernon and Hector Elizalde
Transmitted herewith is a copy of Resolution No. 10,099 referenced
above, which was approved by City Council on November 9, 2009.
Thank you.
NG:dj
c: Rory Burnett
Masami Higa
Alex Kung
Joaquin Leon
Resolution Nos. 9567, 10,099
Agreement No. 09-136
//9 A)) APPROVED NOVO 9 '09 WY COUNCIL
qW
RECEIVED
STAFF REPORT NOV 0 3 2009
CITY ADMINISTRATION OFFICE CITY CLERK'S OFFICE
DATE: November 3, 2009
TO: Honorable Mayor and City Council
FROM: Donal O'Callaghan, City Administrator
RE: Termination Agreement and General Release Hector F. Elizalde
The City of Vernon ("City") and Hector F. Elizalde ("Consultant") negotiated a
Termination Agreement and General Release effective October 1, 2009, to terminate
the Consulting Agreement between the City of Vernon and Hector F. Elizalde Regarding
Public Relations. This Termination Agreement requires that the consultant receives pay
for the remaining portion of his contract/agreement to a total sum of $75,000.00 through
March 31, 2010:
Recommendation
Staff recommends that the City Council approve the attached Termination Agreement
and General Release, including the one time lump sum payment of $75,000.00 to
Hector F. Elizalde.
REQUEST FOR PAYMENT
PAYEE: Hf-G7pf F, L L1 Z AL_ D 1=
MAILING 162 SavT H 016 M
ADDRESS: �-o5 Cn- 10063
ACCOUNT AMOUNT
OSs. 02-3. 1516200 3- $oo.00-
,
oz3. 10000 :37r Soo ,Op
o l IFtL- 7 S, 600, ay
FOR:
(ATTACH DOCUMENTS, LITERATURE OR MEMOS)
PREPARED BY: DATE: ))
DEPT. HEAD APPROVAL: DATE: d�
ADMIN. APPROVAL: DATE:
PURCH. PROCESSED: DATE:
FINANCE/DEMAND LISTING: DATE:
SUBMIT THIS FORM TO ADMINISTRATION FOR APPROVAL TO MAKE
PAYMENT WHEN THERE IS NO INVOICE TO PROCESS, PURCHASE
ORDER OR CONTRACT INVOLVED.
ORIGINAL: TO ADMINISTRATION/FINANCE • COPY: REQUESTING UNIT
f
RECEIVED
a c 1 2 s 2009 STAFF REPORT
CITY CLERK'S OFFIGUTY ADMINISTRATION OFFICE
z
NOV 0 ZQQ�
CITY ATTOFINC'y C7 p
DATE: October 27, 2009
TO; Honorable Mayor and City Council
FROM: Donal O'Callaghan, City Administrator
RE: Termination Agreement and General. Release -- Hector F. Elizalde
na a f�a�d
The City of Vernon ("City") and Hector F. Elizalde ("Consultant") sia
Termination Agreement and General Release effective October 1, 2009, to terminate
the Consulting Agreement betwobn the City of Vemon and Hector F. Elizaide ftgard'ing
Public Relafons. This Termination Agreement requires that the consultant receives pay
for the remaining portion of his contract/agreement to a total sum of $75,000.00 through
March 31, 2010.
Staff recommends that the City Council approve the/One time lump sum payment of
$751000 O0 to Hector F. Elizalde
9
Tolmasoff, Robin
From: Gena Stinnett [gstinnett@rwglaw.com]
Sent: Tuesday, November 03, 2009 3:30 PM
To: Tolmasoff, Robin; Muro, Evangelina
Cc: O'Callaghan, Donal; Laurence S. Wiener; Giron, Nelly
Subject: Resolution & Staff Report - Termination Agreement Hector Elizalde
Attachments: Vernon - Reso - Termination Agreement Hector Elizalde.DOC; Vernon - Staff Report -
Termination Agreement & General Release - Hector F. Elizalde.PDF
Mini
Vernon - Reso - Vernon - Staff
Termination Ag... Report - Termin...
<<Vernon - Staff Report - Termination Agreement & General Release
Hector F. Elizalde.PDF>> Robin - Attached please find a pdf with our comments on the
Hector Elizalde staff report. If Donal concurs, please make the changes and submit a
revised staff report to Nelly.
Eva - Attached in track changes are our comments on the Hector Elizalde resolution.
Please let me know if you have questions about the above.
Gena M. Stinnett
Richards Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071-3101
Voice: 213.253.0240
Facsimile: 213.626.0078
NOTICE: This communication may contain privileged or other confidential information. If
you are not the intended recipient of this communication, or an employee or agent
responsible for delivering this communication to the intended recipient, please advise the
sender by reply email and immediately delete the message and any attachments without
copying or disclosing the contents. Thank you.
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