Loading...
HomeMy WebLinkAboutBenjamin A. Martinez - Mutual Agreement to Sever Employment and General Releases - 2025 MUTUAL AGREEMENT TO SEVER EMPLOYMENT AND GENERAL RELEASES This Mutual Agreement to Sever Employment and General Releases ("Agreement") is entered into by and between the City of National City ("City" or "Employer") and Benjamin A. Martinez ("Martinez"). Collectively,the City and Martinez are referred to as the "Parties." RECITALS WHEREAS,Martinez became employed by the City August 1,2022; and WHEREAS, Martinez began his term as City Manager with the City on December 5, 2023; and WHEREAS, Martinez and City negotiated an employment agreement as City Manager, effective December 5,2023 to June 30,2026;and WHEREAS, Martinez serves as City Manager - an officer of the City as an "at-will" employee,serving at the pleasure of the City Council; and WHEREAS, the City and Martinez desire to enter into this Agreement in order to confirm the terms of their relationship and to implement a mutually amicable separation that is substantially consistent with the terms and conditions of Section 10 of Martinez Employment Agreement (Severance). NOW,THEREFORE,THE PARTIES AGREE AS FOLLOWS: AGREEMENT In consideration of the mutual promises contained herein, and for other good and valuable consideration as set forth below, the sufficiency of which is acknowledged, the Parties do hereby agree as follows: 1. Consideration and Separation. In consideration for signing this Agreement and General Releases and in compliance with the promises made herein, City agrees to pay Martinez the following sum: (a) One check for One Hundred and Thirty-Six Thousand One Hundred and Eighteen Dollars and Ninety-Seven Cents ($136,118.97), less lawful deductions, shall be made payable to "Benjamin Martinez" reflecting one-half year's base salary at Martinez's current rate of pay. The check shall be hand-delivered to Martinez on the last day of employment. In accordance with Martinez's Employment Agreement with the City, his Compensation must include payment for all accrued sick and vacation at the time of his separation from employment. Notwithstanding, City and Martinez agree that Martinez shall remain on paid leave utilizing and exhausting accrued sick and vacation leave until the last day of employment, below, at which time any remaining sick and vacation leave shall be calculated and paid in a second check on the last day of employment. The City agrees to continue providing Martinez a monthly check for a cafeteria health benefit of$1,200.00 per month during his paid leave. 1 Last Day of Employment. Martinez's last day of employment shall be July 21, 2025. By executing this Agreement, Martinez confirms that he has handed over all access keys, car keys, mobile devices, and all other City-issued property to the City Manager's Executive Assistant. City agrees that it will not contest any claims Martinez may file for unemployment insurance benefits and will promptly respond to and not withhold or misstate any information in response to inquiries from the Employment Development Department of the State of California. Housing. Martinez shall continue to have the right to occupy the City provided housing until the last day of employment with the City. Martinez agrees to vacate the housing by the last day of employment. Transition Period. Upon execution of this Agreement or earlier Martinez must cooperate with the City or its designee to effect an orderly transition of the services, including but not limited to, know-how,documents,notes,schedules,etc.Martinez had been providing to the City. 2. No Consideration Absent Execution of this Agreement and General Releases. Martinez understands and agrees that he will not receive the monies and benefits described in Section 1 above unless both Parties execute this Agreement and General Releases and the promises contained herein are fulfilled. Should Martinez initiate a lawsuit or administrative claim seeking damages or any other relief covered by the Agreement,the City may rescind the Agreement and seek to recover any amounts paid pursuant to the Agreement or seek additional recovery (including attorneys'fees and costs incurred in connection with recovering such amounts). 3. Martinez General Release of Claims. Martinez knowingly and voluntarily releases and forever discharges, to the fullest extent permitted by law, the City, its officers, including the members of the City Council, appointed officials, and employees, successors, assigns, heirs, estates, executors, administrators,agents, representatives, and other related persons and entities, and each of them, knowingly and voluntarily compromises,waives and releases, relieves, and discharges all rights and claims, known and unknown, which Martinez may have against the City, its present and former council members, appointed officials, elected officials, affiliates, subsidiaries, and/or assigns, or any health or welfare plan sponsored by the City, or any of their current and former officers, directors, managers, supervisors, attorneys, agents, affiliates, administrators, insurers, partners, representatives, and each of them and their successors, assigns, and heirs (collectively referred to throughout the remainder of this Agreement as "Releasees"), of and from any and all claims, known and unknown, asserted and unasserted, Martinez has or may have against the City and/or Releasees as of the date of execution of this Agreement and General Releases, including, but not limited to, any alleged violation of: • Title VII of the Civil Rights Act of 1964,as amended; • The Civil Rights Act of 1991; • Sections 1981 through 1988 of Title 42 of the United States Code,as amended; • The Americans with Disabilities Act of 1990,as amended; • The Age Discrimination in Employment Act of 1967;as amended; • The Occupational Safety and Health Act,as amended; • California Government Code sections or any other applicable laws pertaining to California Labor Code sections; • The California Fair Employment and Housing Act,as amended; • Any other federal,state or local law, regulation or ordinance that may lawfully be released; • Any public policy,contract,tort,or common law;or 2 • Any claim for costs, fees, or other expenses including attorneys' fees incurred in these matters. This general release shall not apply to any other governmental, private, corporate, or non-profit entity, nor shall it be construed to restrict the Parties from truthfully responding to any statements, accusations or comments made by any other individual, governmental, private, corporate or non-profit entity. Neither shall this general release restrict Martinez's right to pursue undisputed workers compensation benefits. 4. City General Release of Claims. The City knowingly and voluntarily releases and forever discharges, to the fullest extent permitted by law, Martinez and his assigns, heirs, estates, executors, administrators, agents, representatives, and other related persons and entities, and claims, known and unknown, which the City may have against Martinez, of and from any and all claims, known and unknown, asserted and unasserted, the City has or may have against Martinez, his assigns, heirs, estates, executors, administrators, agents, representatives, and other related persons and entities, as of the date of execution of this Agreement and General Releases. 5. Mutual Waivers of Civil Code Section 1542. Martinez and the City agree that by signing this Agreement and General Releases, each Party gives up any and all rights he or it may have to file a claim or complaint of any kind against the other Party. Martinez and the City each therefore specifically and freely waive any and all rights he or it may have under California Civil Code Section 1542,which states: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. In waiving the protection of California Civil Code Section 1542, Martinez and the City each acknowledges his or its awareness of the actual facts and circumstances surrounding the agreement upon which this release is given may later be discovered to be different from those he or it knows or believes to be true, and Martinez and the City each assume such risk to effect a full and complete waiver and release of the other Party. kik, (INITIAL) 44101ek (INITIAL) 6. Release of ADEA Claims. This Agreement constitutes a comprehensive, general release of any and all claims against the City, including,without limitation,the Age Discrimination in Employment Act (ADEA). Martinez understands and acknowledges that he has been advised of his right to have at least twenty-one (21) calendar days to consider his release of claims under the ADEA, and he hereby freely and voluntarily waives the 21-day notice period. Martinez acknowledges that he instead has seven (7) calendar days from the date he executes this Agreement to revoke his release under the ADEA, but understands that should he revoke his release, the City may in its sole discretion rescind this entire Agreement and obtain all amounts paid hereunder. !c)Av` (INITIAL) 7. Workers' Compensation Claims. Martinez represents and warrants that he has not filed any workers' compensation claims with the City. Martinez further warrants that he is not aware of any work injury prior to the date of execution of this Agreement. 3 8. Affirmations. Martinez affirms that he has not filed,caused to be filed,or presently is a party to any claim, complaint, or action against the City or Releasees in any forum or form Martinez further affirms that he has been paid and/or has received all leave (paid or unpaid), compensation, wages and/or benefits to which he may be entitled and that no leave (paid or unpaid), compensation,wages,and/or benefits are due to him,except as provided in this Agreement and General Releases. Martinez furthermore affirms that he has no known workplace injuries or occupational diseases that have not previously been addressed and resolved. Martinez affirms that he has been provided and/or has not been denied any leave requested under the Family and Medical Leave Act or the California Family Rights Act. 9. Non-Disparagement. Neither of the Parties (which for the purposes of this section includes any National City employee and elected or appointed official) will defame, disparage, demean or besmirch the reputation, character, image or services of the other Party, or make any comments that reflect adversely or negatively upon the reputation, character, image or services of the other Party. Nor will the Parties aid,encourage or assist any other individual or entity to defame, disparage, demean or besmirch the reputation, character, image or services of the other Party, or make any comments that reflect adversely or negatively upon the reputation, character, image or services of any Party. The Parties agree that, if asked about this Agreement, they will say that the severance payment,the Agreement,and the General Releases were negotiated to the mutual satisfaction of the Parties. Nothing contained in this Agreement (including Sections 9 and 10) shall bar or prohibit Martinez from(a) disclosing information about unlawful acts in the City's workplace pursuant to a court order, subpoena, or written request from an administrative agency or the Legislature, (b) participating in any proceeding before or conducted by, any federal or state administrative agency to the extent permitted by applicable federal or state law, (c) reporting suspected violations of federal or state law to any governmental agency, including but not limited to the EEOC or California Civil Rights Department or(d) making other disclosures that are protected under any applicable"whistleblower" provision of federal or state law. 10. Confidentiality. Except as otherwise provided by law and/or the California Public Records Act,the Parties agree that the terms and conditions of this Agreement and General Releases are confidential and not to be disclosed to third parties. Martinez shall not disclose any information that could be reasonably interpreted as proprietary or confidential that is unrelated to unlawful acts in the workplace. Nothing in the foregoing shall preclude Martinez from communicating with his attorneys, accountants, or other professionals concerning the terms of this Agreement and General Releases. Martinez has at least five business days to consult with an attorney regarding this Agreement. Nothing in the foregoing shall preclude the City or Releasees from any disclosure of documents or information required to be disclosed by law and/or the California Public Records Act. 11. Full Power to Enter Into Agreement and Make Releases. Martinez represents and warrants that he has full power to make the releases and agreements contained herein. Martinez expressly represents and warrants that he has not assigned, encumbered or in any manner transferred all or any portion of the claims covered by the releases and agreements contained herein. Martinez acknowledges and agrees that this warranty and representation is an essential and material term of the Agreement. 12. Governing Law and Interpretation. This Agreement and General Releases is executed in the State of California and the rights and obligations of the Parties shall be construed and enforced in accordance with the laws of the State of California. The Parties stipulate that jurisdiction and venue shall be exclusively in the State of California, County of San Diego, for any action involving the validity, interpretation and enforcement of this Agreement and General 4 Releases, or for any claim for breach of this Agreement and General Releases, for damages, and for any other relief sought under this Agreement and General Releases. Should any provision of this Agreement and General Releases be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Agreement and General Releases in full force and effect. 13. Non-Admission of Wrongdoing. The Parties agree that neither this Agreement and General Releases nor the furnishing of the consideration for these Releases shall be deemed or construed at any time for any purpose as an admission by either Party of any liability or unlawful conduct of any kind. 14. Amendment. This Agreement and General Releases may not be modified, altered or changed except upon express written consent of both Parties wherein specific reference is made to this Agreement and General Releases. 15. Entire Agreement. This Agreement and General Releases sets forth the entire agreement between the Parties hereto, and fully supersedes any prior obligation of the City to Martinez. Martinez acknowledges that he has not relied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this Agreement and General Releases, except for those set forth in this Agreement and General Releases. Both Parties have had an equal opportunity to participate in the drafting of this Agreement. The usual construction of an agreement as to the drafting party shall not apply to this Agreement. 16. Attorney's Fees. Except as otherwise provided herein, each Party agrees that they will bear his,her or its own attorneys'fees and costs, if any. 17. Effective Date. This Agreement will become effective on the eighth (81 day after it is signed by Martinez, but only if Martinez (a) executes this Agreement on or within twenty-one (21) days following the date on which he receives this Agreement from the City, and (b) does not revoke this Agreement (by email notice of revocation to Barry J. Schultz, City Attorney at bschultz@nationalcityca.gov within seven (7) days following the date on which he executes this Agreement. 18. References. If contacted by another organization, the City will provide the organization with Martinez's dates of employment, Martinez's most recent job title with the City, and a positive reference. 19. Severability. The Parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable. However, if any portion or provision of any section of this Agreement is determined to be illegal, invalid, or unenforceable by any arbitrator or court of competent jurisdiction, or void or voidable as against public policy or otherwise, and cannot be modified to be legal, valid, or enforceable, the remainder of this Agreement shall not be affected by such determination and shall be valid and enforceable to the fullest extent permitted by law, and said illegal, invalid, void, or voidable, or unenforceable portion or provision shall be deemed not to be a part of this Agreement. 20. Agreement is Contingent Upon Final Approval. This Agreement and General Releases is contingent upon final approval of the City Council. 5 IN WITNESS WHEREOF, the Parties knowingly and voluntarily executed this Agreement and General Releases as of the date set forth below: BENJAMIN A. MARTINEZ: CITY OF NATIONAL CITY: A 4 Benjamin A.Martinez yor Ron Morrison Date Signed: /Na1/45 Z b Z,� 1- 2-02j g ( Date Signed: �- APPROVED AS TO FORM: By.len Barry J. Schultz, City Attorney 6