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2009/08/11 City Council Resolution 2009-81RESOLUTION NO. 2009 -$ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK, APPROVING A RESIGNATION AND RELEASE AGREEMENT WITH STEPHEN DONLEY WHEREAS, City Manager Stephen Donley has indicated his desire to resign from his position as City Manager, effective December 31, 2009. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby authorize and approve the Resignation and Release Agreement between Stephen Donley and the City of Rohnert Park attached hereto as Exhibit "A ". BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to execute same on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED on this 11 `h day of August, 2009 CITY OF ROHNERT PARK w M AR eeze ATTEST: T A Clerk ( V rte/ Lk4L41 C LlpO BELFORTE: AYE CALLINAN: AYE MACKENZIE: AYE STAFFORD: AYE BREEZE: AYE AYES: (5) 1 NOES: (0) ABSENT: (0) ABSTAIN: (0) RESIGNATION AND RELEASE AGREEMENT This Resignation and Release Agreement ( "Agreement ") is between the City ;of Rohnert Park ( "CITY ") and Stephen Donley ( "'DONLEY ") (collectively "the Parties "). This Agreement is made in consideration of the following facts, among others. BACKGROUND FACTS A. DONLEY has been employed by CITY as the City Manager since June 28, 2005 under an employment agreement dated June 28, 2005, as amended on November 27, 2007 (the "Employment Agreement "); and B. DONLEY has indicated his desire to resign his employment with the City and the Parties have agreed that it is in the best interests of the City and Donley to enter into this Resignation and Release Agreement; and C. Subject only to the excluded items specifically expressed in this Agreement, the Parties wish to resolve all issues related to DONLEY's employment with the CITY. NOW, THEREFORE, CITY and DONLEY, in consideration of the mutual covenants and agreements herein contained, agree as follows: AGREEMENT I. Incorporation of Recitals The factual recitals set forth above are hereby expressly incorporated into this Agreement as if set forth in full in this provision. 2. Resignation From Employment A. DONLEY hereby resigns from his position as City Manager, effectipe December 31, 2009. (the "Resignation Date "). DONLEY agrees that the City may begin to discuss a search and /or recruitment process to replace DONLEY upon DONLEY's execution of this Agreement. B. DONLEY is currently on active military duty and has been on military leave since October 2008. Donley will remain on paid military leave until December 31, 2009, at which time Donley's employment with the City shall terminate. Pursuant to existing City policy, Donley will be entitled to continue receiving the differential between his military pay and his current City Manager salary until December 31, 2009. 1214194v2 80078/0019 EXHIBIT A The differential salary DONLEY will be entitled to per month shall equal Seven Thousand Seven Hundred and Sixty Dollars and Eighty -Six cents ( $7,760.86). C. From the Effective Date of this Agreement until the Resignation Date, the Parties expressly agree that similar to the current situation of not accruing leave, DONLEY shall not accrue any additional paid leave time (e.g. vacation, sick leave, administrative leave, etc.) However, the City shall continue to make all PERS contributions and the current level of fringe benefits on DONLEY's behalf at the levels in effect on the Effective Date of this Agreement. 3. Compensation and Benefits. A. DONLEY shall be entitled to either use any accrued vacation,. sick and administrative leave as of the Effective Date prior to the Resignation Date or he shall be entitled to payment of any unused vacation, sick or administrative leave on December 31, 2009 as provided for in Section 6.F. of his Employment Agreement; Any such payment of unused leave shall be made at his monthly salary rate currently in effectas provided for in DONLEY's Employment Agreement. B. DONLEY shall retain his rights, entitlements, ownership, and interest`.in the deferred income accounts in his name which the CITY has with the ICIvIA Retirement Corporation or any successor Trustee or Administrator. DONLEY may contribute into any existing CITY deferred compensation plans, including but not limited to, the City's 401(a) Money Purchase or 457 Plans up to his Resignation Date. C. It is understood by and between the Parties that DONLEY has used the services of an attorney to assist him with reviewing this Agreement and that DONLEY shall be entitled to reimbursement for all fees expended by DONLEY in an amount not to exceed Three Thousand Five. Hundred Dollars ($3,500.00). DONLEY shall be entitled to said reimbursement upon the provision of evidence of any such payments it a manner that is satisfactory to the City Attorney of Rohnert Park but will not include the disclosure of any attorney - client privileged communication. D. All payments made pursuant to this Agreement shall be subject to all customary payroll taxes and withholdings. E. CITY expressly states, and DONLEY expressly acknowledges and agrees, that any tax consequences arising from DONLEY's decision regarding any payment due under this Agreement are DONLEY's to investigate and address based on independent legal advice. DONLEY further agrees that he will hold harmless and indemnify CITY from and against any claims, costs, and expenses, limited . to payroll taxes, tax deficiencies, penalties, and interest incurred in connection with any investigation, 2 1214194v2 80078/0019 challenge, levy, or assessment by the Internal Revenue Service, the state Franchise Tax Board, or any other taxing authority of any state, locality, or country with respect to the non - payment of taxes by reason of the payment described in this Agreement unless any such cost is due to the sole negligence of City's improper calculations of payroll taxes and withholdings. DONLEY also agrees to notify the CITY in the rnanner provided herein of any action or notice served upon him by any taxing authority so as to afford the CITY the opportunity to address the matter. 4. Consideration. DONLEY acknowledges and agrees that the promises made by City in this Agreement exceed what he is entitled to receive under his Employment Agreement or under CITY's standard policies and procedures, and, therefore, constitute valid legal consideration for the Agreement. 5. Property and Equipment. A. On or before the Resignation Date, DONLEY shall remove from his CITY office all of his personal property, including but not limited to, pictures, plaques, certificates, and books. B. On or before the Resignation Date DONLEY shall return to the Interim City Manager all CITY property he has in his possession or control including, but not limited to, cellular phones, credit cards, entry cards, keys, identification badges, and computer data. 6. Release of Claims. A. DONLEY represents that he has not filed any complaint, grievance, claim, or action against CITY or any of its City Council members, officers; agents, directors, employees or assigns (collectively, "RELEASEES ") with any state, federal, or local agency, board, arbitrator, or court, and will not do so at any time hereafter, based on any matters arising out of his employment with CITY and /or his Resignation from CITY employment. B. DONLEY hereby releases and forever discharges CITY and RELEASEES from any and all claims, liabilities, demands, causes of actibn, costs, expenses, damages, indemnities, and obligations of every kind, in law, equity or otherwise, known or unknown, arising out of or in any way related to DONLEY's CITY employment or his Resignation from CITY employment. 3 1214194x2 80078/0019 C. Nothing provided in the Agreement is intended to abrogate the duties owed by CITY to DONLEY pursuant to the Government Tort Claims Act. D. CITY hereby waives the notice requirements of Section 6.A of the Employment Agreement. E. Except as otherwise set forth in this Agreement, CITY further releases and forever discharges DONLEY from any and all claims, liabilities, demands, causes of action, costs, expenses, damages, indemnities, and obligations of every kind, in law, equity or otherwise, known or unknown, arising out of or in any way related: to DONLEY's CITY employment or his Resignation from CITY employment. F. Nothing in this Agreement shall be construed as a release by any Party of any obligation or claim arising out of a breach of this Agreement. 7. Waiver and Release of Discrimination Claims. DONLEY understands and acknowledges that Title VII of the Civil Rights Act. of 1964, the Age Discrimination-._ in Employment Act, the Civil Rights Act of 1991, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, the Military and Veterans Code, Uniform Services Employment and Reemployment Rights Act ( "USERRA "), the Americans with Disabilities Act ` of 1990, the federal Family and Medical Leave Act of 1993, the California Family Rights Act of 1991, the California Fair Employment and Housing Act, and other similar statutes (collectively "the Acts ") provide DONLEY with the right to bring an action against CITY if DONLEY believes . he has been discriminated against based on race, ancestry, creed, color, religion, sex, sexual orientation, marital or domestic partner status, national origin, age, status as an individual who has filed a claim for workers' compensation benefits or who has sustained an industrial injury, status as a veteran; of the Vietnam era, physical or mental handicap and /or disability, or status as a person who has taken a legally- protected leave of absence. DONLEY understands the rights afforded to him under the Acts and agrees that he will not bring any action against CITY based on any alleged violation(s) of the Acts based on any matters arising -out of his employment with CITY and /or his Resignation from City employment. DONLEY hereby waives any right to assert a claim for any relief under the Acts, including but not limited to back pay, attorneys' fees, damages, reinstatement, and /or injunctive relief. In addition, DONLEY also waives any right to recover any relief as a result of any such proceeding, or any other proceeding, initiated on his behalf S. Specific Acknowledgment Of Waiver Of Claims Under ADEA And OWBPA: 4 1214194x2 80078/0019 The Age. Discrimination in Employment Act of 1967 ( "ADEA ") makes it illegal for an employer to discharge any individual or otherwise discriminate with respect: to the nature and privileges of an individual's employment on the basis that the individual is age forty or older. The Older Workers Benefit Protection Act ( "OWBPA ", 29 U.S.C. §§ 626, et. seq., Pub L 101 -433, 104 Stat. 978 (1990)) further augments the ADEA and prohibits the waiver of any right or claim under the ADEA unless the waiver': is knowing and voluntary. By entering into this Agreement, DONLEY acknowledges that . he is knowingly and voluntarily, for just compensation in addition to anything of value to which DONLEY was already entitled, waiving and releasing any rights he may have under the ADEA and /or OWBPA. DONLEY further acknowledges that he has been advised and understands, pursuant to the provisions of the ADEA anal OWBPA, that: A. This waiver /release is written in a manner understood by DONLEY; B. DONLEY is aware of and has been advised of, or has had ample opportunity to seek advice of counsel regarding, his rights under the ADEA and OWBPA, and of the legal significance of his waiver of any possible claims he currently may have under the ADEA, OWBPA, or similar age discrimination laws; C. DONLEY is entitled to a reasonable time of at least twenty -one (21) days within which to review and consider this Agreement, and the waiver and release of any rights he may have under the ADEA, the OWBPA, or similar age discrimination laws, but he may, in the exercise of his own discretion, sign or reject this Agreement at any time before the expiration of the twenty -one (21.) days; D. The waivers and releases set forth in this Agreement shall not apply to any rights or claims that may arise under the ADEA and /or OWBPA after the Effective Date of this Agreement; E. DONLEY acknowledges that he has consulted with an attorney, or has had ample opportunity to consult with an attorney, prior to executing this Agreement; F. DONLEY has been given the opportunity to discuss this waiver and release with any counsel of his choice and that he does not need any additional time within which to review and consider this Agreement; G. DONLEY has seven (7) days following the Parties' full and complete execution of this Agreement to revoke the Agreement; and H. This Agreement shall not be effective until the Effective Date set forth below. 9. Mutual Waiver of Civil Code Section 1542. 5 1214194x2 80078/0019 A. The release contained herein is intended to be complete and final as to any matters arising out of his employment with CITY and /or his Resignation from CM. employment, and to cover not only such claims, demands, liabilities, damages, actions and causes of action which are known, but also claims, demands, liabilities, damages, actions and causes of action which are unknown or which DONLEY does not suspect to exist in his favor which, if known at the time of executing this Agreement might have affected his actions, and therefore he expressly waives the benefit of the provisions' of section 1542 of the California Civil Code, which provides: 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. DONLEY hereby expressly waives and relinquishes all rights and benefits which he has or may have had under section 1542 of the California Civil Code or the law, of -any other state, country, or jurisdiction to the same or similar effect to the full extent that he may lawfully waive such rights. As a .part of this waiver, DONLEY waives any right to notice and an opportunity for a hearing regarding his Resignation from CITY employment. B. The release contained herein is intended to be complete and final as to any matters arising out of his employment with CITY and /or his Resignation from CITY employment, and to cover not only such claims, demands, liabilities, damages, actions. and causes of action which are known, but also claims, demands, liabilities, damages, actions and causes of action which are unknown or which CITY does not suspect_ to exist in its favor which, if known at the time of executing this Agreement might have affected its, actions, and therefore it expressly waives the benefit of the provisions of section 1542 of the California Civil. Code, which provides: 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. CITY hereby expressly waives and relinquishes all rights and benefits which it has or may have had under section 1542 of the California Civil Code or the law of any other state, country, or jurisdiction to the same or similar effect to the full extent that it may lawfully waive such rights. 6 1214194x2 80078/0019 10. No Admission of Liability. This Agreement and compliance with it shall not operate or be construed as an admission by CITY of any liability, misconduct, or wrongdoing whatsoever against DONLEY or any other person; nor as an admission by CITY of any violation of the rights of DONLEY or any other person; nor as a violation of any order, law, statute, duty, or contract whatsoever against DONLEY or any other person. Rather, CITY expressly denies any liability to DONLEY. 11. Limitation on Disclosure of Agreement; Communications With Prospective Employers. A. The Parties agree to issue the joint statement attached as Exhibit A and there shall be no further comment by DONLEY or CITY on personnel matters discussed in arriving at this Agreement. Other than this agreed -upon statement, the Parties agree not to issue any press release or other comments regarding the terms, conditions, or existence of this Agreement. CITY agrees that it will not discuss DONLEY's performance as City Manager with third parties and DONLEY agrees that he will not discuss CITY's performance as an employer with third parties. CITY agrees that it will release to prospective employers or to other third parties only DONLEY's dates of employment, positions held, and final salary. Other employment information about DONLEY (including but not limited to this Agreement) will be released by the CITY only (a) with DONLEY's written consent, (b) to refute or defend a claim initiated by DONLEY, or (c) as otherwise required by law. B. Individual City Council members may, in their capacities as private citizens only, and without the use of CITY letterhead or representation that they speak on behalf of the CITY, provide personal letters of reference and /or recommendations':at their discretion to assist DONLEY in obtaining comparable employment and salary /benefits package to which he was provided under the Employment Agreement. DONLEY expressly waives any and all claims against CITY arising out of or related to such individual letters. 7 1214194x2 80078/0019 12. Confidentiality. CITY shall maintain DONLEY's personnel, employment and health records as confidential and private as required by applicable law. Such records shall not be released without DONLEY's written authorization except as required . by law. 13. Mutual Drafting; Governing Law. This Agreement shall be deemed to have been jointly drafted by the Parties and shall be governed by and construed in accordance with the laws of the State of California. 14. Entire Agreement: This Agreement constitutes the entire agreement between DONLEY and CITY. No other promise or inducement has been offered for this Agreement. Any amendments to this Agreement must be in writing, signed by duly authorized representatives of both CITY and DONLEY, and must state that the parties intend to amend the Agreement. Any purported amendment failing to comply with this provision shall be null and void. 15. Severability. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision of this Agreement. 16. Venue of Actions; Costs and Fees. Venue of any legal action shall be in Sonoma County. If any legal action is instituted to enforce any provision of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of its provisions, the court shall award the prevailing party reasonable attorneys' fees and other litigation costs incurred in that action, in addition to any other relief to which the prevailing party may be entitled. Nothing in this section 16 shall prevent the Parties from mutually agreeing to binding arbitration of any dispute, in which case the arbitrator may award attorney's fees and Iitigation costs to the prevailing Party as described above. 17. Voluntary Execution of Agreement. 8 1214194v2 80078/0019 DONLEY represents that he has carefully read this entire Agreement and that he knows and understands its contents. DONLEY has had the. opportunity to receive independent legal advice from attorneys of his choice with respect to the preparation, review, and advisability of executing this Agreement. DONLEY further represents and acknowledges that he has freely and voluntarily executed this Agreement after independent investigation and without fraud, duress, or undue influence, with a full understanding of the legal and binding effect of this Agreement and with the approval of his legal counsel, if any. DONLEY thereby knowingly waives the twenty -one (21) day period under the Older Workers Benefits Protection Act to review this Agreement with his attorney prior to signing. 18. Indemnification. In accordance with the California Government Torts Claims Act, CITY shall pay, defend, save harmless, and indemnify against any tort, professional liability claim or demand or other legal .action, whether groundless or otherwise, arising out of any alleged act or omission occurring in the performance of DONLEY's duties as City Manager through and including December 31, 2009. This Section is not intended to modify, expand, or diminish the obligations of CITY under Government Tort Claims Act. 19. Conflict with City Personnel Rules; Termination of Employment Agreement: A. The Employment Agreement shall be of no further force and effect and shall be considered terminated on this Agreement's Effective Date. B. Notwithstanding any other provision herein to the contrary, if the provisions of this Agreement differ or are in conflict with CTTY's personnel rules and regulations, the CITY Municipal Code or other rules, then the provisions of this Agreement shall prevail. 20. Notice. Excepting the notice of revocation described in Section 21, any and all notices given to any Party under this Agreement shall be given as provided in this Section. All notices given to either Party shall be made by certified or registered United States mail, or by personal delivery, at the noticing Party's discretion, and addressed to the Parties as set forth below. Notices shall be deemed, for all purposes, to have been given on the 9 1214194x2 80078/0019 date of personal service or three consecutive calendar days following deposit of the same in the United States mail. As to DONLEY: As to CITY: Stephen Donley CITY MANAGER P.O. Box 22962 130. Avram Avenue San Diego, CA 92192 Rohnert Park, CA 94928 With a copy to: With a copy to: Craig Scott ROHNERT PARK CITY ATTORNEY Executive Law Group 1901 Harrison Street, 9th Floor One Newport Place, Suite 1000 Oakland, CA 94612 Newport Beach, CA 92660 21. Right of Revocation, Effective Date. DONLEY has the right to revoke this Agreement for any reason within seven (7) days after he signs it. To be effective, DONLE?s notice of revocation must be in writing and must be hand - delivered or mailed to CITY's City Attorney at 1901 Harrison Street, 9th Floor, Oakland, California 94612. If mailed, the revocation must be postmarked within the seven -day period, properly addressed and sent by certified mail, return receipt requested. If hand - delivered, it must be given to the City Attorney within the seven -day period. This Agreement shall not become effective until the seven -day revocation period has expired. Therefore, this Agreement shall take effect.on the eighth day following DONLEY's signature, with the signature date being day one ( "the Effective Date "). 22. Execution of A ,g_reement. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN . WITNESS WHEREOF, DONLEY has signed and CITY, following a duly passed resolution approving the above terms has directed its authorized representative to sign this Agreement. Dated: August —5-, 2009 STEPHEN DONLEY By: , STEPHEN DONLEY 10 1214194x2 80078/0019 Dated: August_, 2009 CITY OF ROHNERT PARK By: An-de Breeze, Mayor Approved as to Form: Michelle Marchetta Kenyon, Esq. Counsel for the City of Rohnert Park 11 12141902 80078/0019 EXHIBIT A joint Statement PRESS RELEASE FOR IMMEDIATE RELEASE August 11, 2009 Rohnert Park, CA - City. Manager Steve Donley announced his resignation from the City of Rohnert Park an is intent to continue his public service in the military. Mr. Donley has been serving in the military with the U.S. Coast Guard since October 1, 2008. He was appointed City Manager in 2005 and previously served as Assistant City Manager from 2001 -2005. "Since September 11, 2001, I have really struggled with choosing between my military and civilian careers. Given the shortage of experienced military officers, I have decided that my public service career will have the greatest impact by extending my service in the Coast Guard. Rohnert Park is a model employer for military reservists and has always been extremely supportive of my service. My family and I will greatly miss the community that has been our home these past eight years," said Steve Donley. While at Rohnert Park, Donley was involved in a variety of projects including the construction of the Rohnert Park Community Library, the LEED Gold City Hall, Vida Nueva and The Arbors affordable housing projects, and the City Center Plaza. As the 2008 chair of the Sonoma City /County Managers` Association, he provided the initial leadership to form a countywide coalition of the nine cities and the County to work jointly on Climate Protection initiatives. During his career in city government, he worked at the cities of Burbank and Alhambra. He became interested in local government during his service in Americorps at the City of Vallejo. He earned a Bachelor of Arts from the University of California, San Diego, a Master of Public Administration from the Universit of Sthern California and is a credentialed City Manager by the International CityyCounty ou Management Association. In 2008, he was named one of the top Forty Business Leaders under 40 by the North Bay Business journal. He and his wife; Julia, have three children ages 9, 6, 4. The Council greatly appreciates Mr. Donley's work on behalf of the City and wishes . to thank Mr. Donley for his services to the City of Rohnert Park, City Council of the City of Rohnert Park 12 1214194v2 80078/0019