Loading...
Resolution No. 2010-146RESOLUTION NO. 2010-146 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SEPARATION AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND DONAL O'CALLAGHAN WHEREAS, on May 7, 2007, the City Council of the City of Vernon adopted Resolution No. 9315 approving an Employment Agreement with Donal O'Callaghan ("O'Callaghan") dated May 7, 2007; and WHEREAS, the employment agreement was amended by Resolution Nos. 9890 9943 and 2010-116 adopted on March 16, 2009, May 11, 2009 and May 16, 2010; and WHEREAS, the City desires to terminate the employment agreement with O'Callaghan effective October 14, 2010. THE CITY COUNCIL OF THE CITY OF VERNON HEREBY RESOLVES AS FOLLOWS: SECTION 1.: The City Council of the City of Vernon hereby approves the Separation Agreement with Donal O'Callaghan (the "Agreement"), a copy of which is attached hereto as Exhibit A. SECTION 2: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the Separation Agreement for, and on behalf of, the City and the City Clerk or Deputy City Clerk is hereby authorized to attest thereto. SECTION 3: 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 1st day of November, 2010. Hilario Gonzales Name: Title: Mayor / - em— ATTE Willard G. m guc i; City Clerk 2 STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2010-146, 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 1, 2010, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this 'fo day of November, 2010, at Vernon, California. w Willard ma hi, City Clerk (SEAL) - 3 - f ��,' ��� f:' SEPARATION AGREEMENT This Separation Agreement ("Agreement") is entered into by and between Donal O'Callaghan ("Employee"), an individual, and the City of Vernon, a California charter city, ("Employer" or "City") as of the date set forth below. Recitals A. Employee is employed by Employer under the terms of an employment agreement, dated as of May 7, 2007, as amended ("Employment Agreement"). The Employment Agreement and Employee's employment are subject to early termination by City for cause. A termination "for cause" includes willful misconduct unless cured within 30 days after notice. B. Employer believes Employee engaged in willful misconduct by participating in the formation and administration of City contracts involving his spouse, permitting early termination of the Employment Agreement for cause. C. Employee denies that grounds exist for early termination of the Employment Agreement and contends that established City policies and procedures were followed in the formation and administration of City contracts involving his spouse, that Employee had no capacity to make contracts for the City, and Employee's conduct was approved and authorized by the City Administration D. The foregoing notwithstanding, the parties have mutually agreed to end their employment relationship according to the terms of this Agreement, while reserving the right of Employee to (a) arbitrate his claim of wrongful termination under Section 17 (Dispute Resolution) of the Employment Agreement and (b) obtain full damages as would be available under those claims in the absence of this Agreement. NOW THEREFORE, in consideration of the above recitals and of the mutual promises set forth below, the parties hereby agree: Separation of Employment. A. By his signature below, Employee irrevocably resigns his employment with Employer, to be effective at the close of business on October 14, 2010 ("Separation Date"). Employer accepts Employee's resignation and expressly agrees that such resignation is not a breach of the Employment Agreement, nor shall it prejudice Employee's right to (a) , contest that this termination was in fact implemented at Employer's initiative under paragraph 8.3 of the Employment Agreement, and (b) contest the termination in arbitration. Notwithstanding the resignation, Employee expressly and irrevocably waives re-employment, reinstatement, and future employment rights, if any. 2 1010151-1 2. Final Pay and Benefits. A. Employer shall pay Employee his contracted salary and benefits through the Separation Date. B. Employee shall receive a cash payment for all properly accrued and unused paid leave time to which he is entitled, if any, under Employer's rules and the Employment Agreement through the Separation Date. C. Except as provided in this Agreement and except for accrued and vested retirement benefits, if any, Employee agrees that he is owed no other salary, wages or benefits, including any cash equivalent or conversion and that no other payment is due him arising from or in any manner related to his employment, except for all matters reserved herein for Arbitration as set forth in paragraph 3 of this Agreement. 3. Arbitration under Employment Agreement. Employee's resignation notwithstanding, the parties agree that Employee is reserving all of his rights under the Employment Agreement, and seeks arbitration of his claims under Section 17 (Dispute Resolution) that grounds do not exist for his early termination under Section 8.3 (Termination by City for "Cause") of the Employment Agreement. For purposes of arbitration, Employee and the City agree that Employee's resignation is an involuntary separation by the City and that Employee may challenge his involuntary separation as a violation of the terms of the Employment Agreement and any applicable law and may contend that he is eligible to obtain full damages, including without limitation front and back pay dating from the Separation Date. The City may assert any and all defenses to such claim, including without limitation, any defenses provided in the Employment Agreement or under applicable law. The parties also agree that, for purposes of arbitration: (a) the notice provisions of Section 8 (Termination) of the Employment Agreement are either not applicable or are waived and (b) any right to cure provided in Section 8 of the Employment Agreement is hereby reserved and may be raised in the arbitration, but shall not be applicable to any misconduct that the arbitration panel determines was not capable of being cured. Regardless of the. results of the arbitration or any other legal challenge to Employee's separation, Employee expressly and irrevocably waives re-employment, reinstatement, and future employment rights, if any. 4. Advice and Expense of Counsel. A. Employee acknowledges that he has been advised to consult an attorney prior to executing this Agreement, and has done so, and that he has been provided with adequate time to do so. 2 1010151-1 2 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. Employee 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, Employee does not rely on any inducements, promises, or representations by Employer or anyy 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 turnout 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 effective and not subject to termination or rescission by reason of any such different facts. C. Employee 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 or waives (if any) 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 or waived (if any). Employee 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. Employer pursuant to Section 2 of this Agreement, and Employee agrees to indemnify, defend, and hold harmless Employer 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. . Employee represents and warrants that no action of any kind is currently pending against Employer in any federal or state court or before any administrative agency relative to Employee's employment or the termination of that employment. 2 1010151-1 3 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. Mutual Cooperation. A. Within five (5) days of the Separation Date, Employee shall return all keys, documents, files, equipment, and property belonging to Employer that are in his possession or under his control. B. Within five (5) days of Employee's request, Employer will provide reasonable supervised access to Employee's office at the City in order for a representative of Employee to retrieve any personal property of Employee that remains on Employer's premises. C. Employee shall cooperate with Employer as may be reasonably necessary in the transition of his responsibilities. After the Separation Date, Employee shall be available for such purposes as his schedule permits. 7. Written. Modifications. This Agreement supersedes any prior written or verbal adjustment of this matter. There shall be no modification of this Agreement except in writing signed by both parties. 8. No Right to Reinstatement. Employee acknowledges that his continued employment with Employer will end, as provided in this Agreement, and he waives all rights, if any, to reemployment, reinstatement or future employment with Employer. .Employee further waives any rights to any compensation or benefits of employment with the City except as provided in this agreement or awarded through Arbitration pursuant to Section 3. Employee further agrees that he will not apply for or otherwise seek employment with Employer. 9. Attorney's Fees to Enforce Agreement. ement. 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. 10. 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. 11. 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. 2 1010151-1 4 12. 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. 13. Integration. This Agreement constitutes a single integrated written contract, expressing the entire agreement of the parties hereto relative to the separation of the Employee from the City. 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 concerning the separation have been and are merged and integrated into, and are superseded by, this Agreement. 14. 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. 15. 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. DATED: O ` Q DATED: EMPLOYEE Donal O'Callaghan CITY OF VERNON (`Employer") Its: Mayor / Mayor Pro-Tem ATTEST: Willard G.. Yamaguchi, City Clerk 2 1010151-1 5 P OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 November 3, 2010 Mark J. Werksman, Esq. 888 West Sixth Street Fourth Floor Los Angeles, CA 90017 Re: Separation Agreement — Donal O'Callaghan Dear Mr. Werksman: Transmitted herewith is a fully executed separation agreement approved by the Vernon City Council on November 1, 2010, through Resolution No. 2010-146. If you have any questions regarding this matter, please contact me at (323) 583-881J1 ext. 175. Very truly yours, 4C1erk/Interi G.91ty I Cttorney WGY:dj Enclosure c: Rory Burnett Karina Rueda Martha Valenzuela Mark Whitworth Agreement File No. 10-074 Resolution No. 2010-146 E ,ccuszvely Industrial' SEPARATION AGREEMENT This Separation Agreement ("Agreement") is entered into by and between Donal O'Callaghan ("Employee"), an individual, and the City of Vernon, a California charter city, ("Employer" or "City") as of the date set forth below. Recitals A. Employee is employed by Employer under the terms of an employment agreement, dated as of May 7, 2007, as amended ("Employment Agreement"). The Employment Agreement and Employee's employment are subject to early termination by City for cause. A termination "for cause" includes willful misconduct unless cured within 30 days after notice. B. Employer believes Employee engaged in willful misconduct by participating in the formation and administration of City contracts involving his spouse, permitting early termination of the Employment Agreement for cause. C. Employee denies that grounds exist for early termination of the Employment Agreement and contends that established City policies and procedures were followed in the formation and administration of City contracts involving his spouse, that Employee had no capacity to make contracts for the City, and Employee's conduct was approved and authorized by the City Administration D. The foregoing notwithstanding, the parties have mutually agreed to end their employment relationship according to the terms of this Agreement, while reserving the right of Employee to (a) arbitrate his claim of wrongful termination under Section 17 (Dispute Resolution) of the Employment Agreement and (b) obtain full damages as would be available under those claims in the absence of this Agreement. NOW THEREFORE, in consideration of the above recitals and of the mutual promises set forth below, the parties hereby agree: 1. Separation of Employment. A. By his signature below, Employee irrevocably resigns his employment with Employer, to be effective at the close of business on October 14, 2010 ("Separation Date"). Employer accepts Employee's resignation and expressly agrees that such. resignation is not a breach 'of the Employment Agreement, nor shall it prejudice Employee's right to (a) contest that this termination was in fact implemented at Employer's initiative under paragraph 8.3 of the Employment Agreement, and (b) contest the termination in arbitration. Notwithstanding the resignation, Employee expressly and irrevocably waives re-employment, reinstatement, and future employment rights, if any. 2 1010151-1 2. Final Pay and Benefits. A. Employer shall pay Employee his contracted salary and benefits through the Separation Date. B. Employee shall receive a cash payment for all properly accrued and unused paid leave time to which he is entitled, if any, under Employer's rules and the Employment Agreement through the Separation Date. C. Except as provided in this Agreement and except for accrued and vested retirement benefits, if any, Employee agrees that he is owed no other salary, wages or benefits, including any cash equivalent or conversion and that no other payment is due him arising from or in any manner related to his employment, except for all matters reserved herein for Arbitration as set forth in paragraph 3 of this Agreement. 3. Arbitration under Employment Agreement. Employee's resignation notwithstanding, the parties agree that Employee is reserving all of his rights under the Employment Agreement, and seeks arbitration of his claims under Section 17 (Dispute Resolution) that grounds do not exist for his early termination under Section 8.3 (Termination by City for "Cause") of the Employment Agreement. For purposes of arbitration, Employee and the City agree that Employee's resignation is an involuntary separation by the City and that Employee may challenge his involuntary separation as a violation of the terms of the Employment Agreement and any applicable law and may contend that he is eligible to obtain full damages, including without limitation front and back pay dating from the Separation Date. The City may assert any and all defenses to such claim, including without limitation, any defenses provided in the Employment Agreement or under applicable law. The parties also agree that, for purposes of arbitration: (a) the notice provisions of Section 8 (Termination) of the Employment Agreement are either not applicable or are waived and (b) any right to cure provided in Section 8 of the Employment Agreement is hereby reserved and may be raised in the arbitration, but shall not be applicable to any misconduct that the arbitration panel determines was not capable of being cured. Regardless of the results of the arbitration or any other legal challenge to Employee's separation, Employee expressly and irrevocably waives re-employment, reinstatement, and future employment rights, if any. 4. Advice and Expense of Counsel. A. Employee acknowledges that he has been advised to consult an attorney prior to executing this Agreement, and has done so, and that he has been provided with adequate time to do so. 2 1010151-1 2 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. Employee 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, Employee does not rely on any inducements, promises, or representations by Employer 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 effective and not subject to termination or rescission by reason of any such different facts. C. Employee 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 or waives (if any) 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 or waived (if any). Employee 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 Employer pursuant to Section 2 of this Agreement, and Employee agrees to indemnify, defend, and hold harmless Employer 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. Employee represents and warrants that no action of any kind is currently pending against Employer in any federal or state court or before any administrative agency relative to Employee's employment or the termination of that employment. 2 1010151-1 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. Mutual Cooperation. A. Within five (5) days of the Separation Date, Employee shall return all keys, documents, files, equipment, and property belonging to Employer that are in his possession or under his control. B. Within five (5) days of Employee's request, Employer will provide reasonable supervised access to Employee's office at the City in order for a representative of Employee to retrieve any personal property of Employee that remains on Employer's premises. C. Employee shall cooperate with Employer as may be reasonably necessary in the transition of his responsibilities. After the Separation Date, Employee shall be available for such purposes as his schedule permits. . 7. Written Modifications. This Agreement supersedes any prior written or verbal adjustment of this matter. . There shall be no modification of this Agreement except in writing signed by both parties. 8. No. Right to Reinstatement. Employee acknowledges that his continued employment with Employer will end, as provided in this Agreement, and he waives all rights, if any, to reemployment, reinstatement or future employment with Employer. Employee further waives any rights to any compensation or benefits of employment with the City except as provided in this agreement or awarded through Arbitration pursuant to Section 3. Employee further agrees that he will not apply for or otherwise seek employment with Employer. 9. Attorney's Fees to Enforce Agreement. 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. 10. 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. 11. 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. 2 1010151-1 4 12. 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. 13. Integration. This Agreement constitutes a single integrated written contract expressing the entire agreement of the parties hereto relative to the separation of the Employee from the City. 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 concerning the separation have been and are merged and integrated into, and are superseded by, this Agreement. 14. 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. 15. 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. DATED: O �t DATED: /I A /a EMPLOYEE Donal O'Callaghan CITY OF VERNON ("Employer") By: ��� , , Hi.lario onzales Its: Mayor — - AT ST: Willard G. Ya ag chi ty Clerk 2 1010151-1 INTEROFFICE MEMORANDUM CITY ADMINISTRATION DEPARTMENT TO: Hilario Gonzales, Mayor Michael McCormick, Mayor Pro Tem William Davis, Councilman Richard J. Maisano, Councilman Daniel D. Newmire, Councilman p �� 1"� FROM: Donal O'Callaghan, City Administrator DATE July 20, 2010 It has been my pleasure to serve, in addition to my duties as Director of Light and Power, as City Administrator for the City of Vernon for the past thirteen months. However, responsibilities and duties inherent in these positions represent more than two full-time jobs, a situation that is untenable for the long term.; As the new fiscal year begins, I believe that this is the right time for me to refocus on and continue the management of the Light and Power Department and the variousprojects that we are working on Therefore, this memo serves to inform you that I shall no longer be serving as the City Administrator of the City of Vernon, effective close of business Wednesday, July 21, 2010, I take this action so that I will be able to fully focus on my duties as Director of Vernon's Light and Power Department. I am very proud of the City's achievements over this past thirteen months since assuming the added City Administrator duties. We have been successful in accomplishing the key goals I set out, including 'important milestones and numerous improvements to our internal systems. Some of these successes include: • Ensuring a balanced budget for fiscal year 2010-2011, during an extremely difficult economic climate • Positioning the City to move forward towards sustainable General and Governmental services • Creating controls and tracking mechanisms for departmental managers to ensure sound departmental financial management that will help ensure the City stays within its budget • Streamlining City departments, and establishing new cost reductions, allowing the City to do more with less, while still providing top-quality services to our businesses • Managing the sale of over 12,700 acres of Vernon's wind farm property in Kern County, which brought significant revenue to the City