ABSTRACT: On the 5 April 2011 Regular City Council Meeting Agenda, Consent Calendar (“routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action”), Item J concerns the Settlement Agreement between the City and Rich Guillen, City Administrator, as follows: J. Ratify Settlement Agreement between the City of Carmel-by-the-Sea and Richard Guillen, City Administrator. Excerpts from the Agenda Item Summary are presented and the SETTLEMENT AGREEMENT AND GENERAL RELEASE is reproduced.
Regular Meeting
Tuesday, April 5, 2011
4:30 p.m., Open Session
Live & Archived video streaming
City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues
VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.
J. Ratify Settlement Agreement between the City of Carmel-by-the-Sea and Richard Guillen, City Administrator.
City Council
Agenda Item Summary
Description: Agreement reached between the City Council and the City Administrator on February 15, 2011.
Overall Cost:
City Funds: Six months severance pay and health benefits as specified
Staff Recommendation: Authorize Mayor to sign agreement.
Important Considerations: The Settlement was negotiated by the Council on February 15, 2011 and has been reviewed by the City Attorney.
NOTE: Six months severance pay and health benefits amounts to approximately $100,000.
SETTLEMENT AGREEMENT AND GENERAL RELEASE
1. This Settlement Agreement and General Release (“Agreement”) is made and entered into by and between Rich Guillen (“Guillen”) and the City of Carmel-by-the-Sea (“Carmel”).
2. Guillen was hired by Carmel as an interim City Administrator on October 9, 2000, and then hired as the permanent City Administrator on January 1, 2001. On February 15, 2011, Guillen announced his retirement from his position. Guillen and Carmel have decided to resolve any and all issues arising from Guillen’s employment with Carmel in a cooperative manner pursuant to the terms and conditions set forth in this agreement.
3. The parties to this Agreement are Guillen and Carmel, each of whom expressly deny liability to each other.
4. In exchange for the following good and valuable consideration, and the promises set forth herein, the parties hereby agree to the following terms:
a. Effective upon the hiring of a successor to the City Administrator’s position or on March 31, 2011, whichever occurs earlier, Guillen will officially retire from his position with Carmel.
b. Guillen will receive six months severance pay from the date he is replaced, or after March 31, 2011, whichever is earlier.
c. Guillen will receive health benefits for the duration of his severance period unless he finds another job that provides health insurance.
d. Guillen will receive no additional wages or any other benefits from Carmel other than as specifically set forth in this Agreement.
e. Carmel will respond to any and all inquires regarding Guillen’s employment by directing Carmel’s head of Human Resources to provide Guillen’s date of hire, his date of retirement and his last position before retirement.
f. Carmel’s official files concerning Guillen will be treated as confidential pursuant to Carmel policy and California law. Guillen’s personnel records will be made available only to authorized persons within the City as necessary, but Carmel will not make his personnel records available to any third party absent a court order or a signed authorization from Guillen granting Carmel permission to release those records.
5. In consideration for the full and timely performance of all terms and conditions of this Agreement, Guillen, for and on behalf of himself, and his respective heirs, administrators, executors, insurers, principals, agents, partners, employees, representatives, attorneys, officers, directors, parents, spouses, guardians, conservators, assigns, subsidiaries, predecessors in interest, successors in interest, or affiliates, hereby agrees to completely release and fully discharge Carmel, together with its principals, agents, officers, directors, partners, council members, employees, assigns, subsidiaries, predecessors in interest, successors in interest, affiliates, representatives, insurers and attorneys, and any other person, firm, entity or corporation with whom any of the former have been affiliated of and from any and all rights, claims, demands, causes of action and damages, compensatory, exemplary or other, that Guillen had, now has, or in the future may have of any kind, whether the same be now known or unknown, anticipated or unanticipated, which arise from the scope of Guillen’s employment with Carmel, except for obligations and duties arising from this Agreement. However, notwithstanding the foregoing, Guillen retains the right to exercise his rights under Government Code § 995.
6. Guillen hereby relinquishes and waives all rights conferred upon him by the provisions of Section 1542 of the Civil Code of the State of California, which reads 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.”
Guillen acknowledges that he is aware that he may hereafter discover facts different from or in addition to those which he or his attorneys now know or believe to be true with respect to the matters released in Paragraph 5 above, and agree that the releases so given in Paragraph 5 above will be and remain in effect as a full and complete release of the respective claims, notwithstanding any such different or additional facts. However, notwithstanding the foregoing, Guillen retains the right to exercise his rights under Government Code § 995.
Guillen acknowledges and agrees that these waivers are essential and material terms of this Agreement and the release provisions contained herein, and that without such waivers the settlement described in this Agreement would not have been entered into.
7. At the time of the execution of this Agreement, Guillen represents the following:
One: Guillen has no outstanding claims or suits filed or potential claims or suits contemplated to be filed against Carmel at the time of the execution of this Agreement.
Two: Guillen represents that he is of good health and has at the time of the execution of this Agreement no known or anticipated on-the-job injuries or illnesses.
The foregoing representations are material representations to Carmel to enter into this Agreement and the enforceability of this Agreement is conditioned upon the truth and accuracy of those representations.
8. At the time of the execution of this Agreement, Carmel represents that it is not aware of any outstanding claims or suits filed or potential claims or suits contemplated to be filed against Guillen or Carmel which arise from Guillen’s employment with Carmel.
9. As a further and material consideration for this settlement, Guillen will cooperate with Carmel in its defense against any claim or legal action which arises in any way from his employment with Carmel.
10. In executing the Agreement, the parties have not relied on statements or representations regarding their rights and claims for damages. On the contrary, the parties have considered all of these matters themselves and have relied entirely on their own judgment and consultation with counsel.
11. The terms of the Agreement reflect a compromise settlement of disputed claims arising from Guillen’s employment with Carmel. The terms of settlement reflected in the Agreement are not to be considered as an admission by Guillen of any responsibility whatsoever, in whole or in part, for any claims concerning Guillen’s employment.
12. Guillen and Carmel acknowledge and agree that they will bear their own costs, expenses and attorney’s fees arising out of the negotiation, drafting and execution of the Agreement, except that in the event any action is brought, or any order of judgment is obtained by Guillen or Carmel to enforce the Agreement, the prevailing party shall by entitled to reasonable attorney’s fees and costs in addition to all other relief to which that party may be entitled.
13. This Agreement contains the sole and entire agreement and understanding of Guillen and Carmel with respect to the entire subject matter hereof, and no other agreement, oral or written, will be deemed to exist or to bind them.
14. Guillen warrants that he is the owner and holder of the claims released; that he has the power and authority to make the representations and execute the releases contained in this Agreement; that he has made no assignment and will make no assignment of any claims, cause of action or right embodied in any of the claims that are the subject of the Agreement; and that no person or entity of any kind including any known or unknown heirs or executors may have or has any interest in any of the demands, obligations, actions or causes of action, debts, liabilities, rights, contracts, damages, attorneys fees, costs, expenses, losses or claims to which this Agreement applies.
15. The provisions of the Agreement are intended to be binding on Guillen and Carmel, and their respective assigns, successors, agents, heirs, beneficiaries, insurance carriers and representatives.
16. This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced, and covered under the laws of California.
17. Guillen and Carmel agree that each negotiated and contributed equally to the drafting of this Agreement and that no one party is deemed to have drafted it.
18. Guillen and Carmel agree that no provision hereof may be waived unless in writing, signed by Guillen and Carmel. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
19. This Agreement may be enforced by any party hereto by a motion under Code of Civil Procedure section 664.6 or by any other procedure permitted by law in the Superior Court of the State of California for the County of Monterey.
20. This Agreement may be executed in counterparts.
THE UNDERSIGNED HEREBY CERTIFY to have read this entire Agreement, consisting of five (5) pages. The undersigned fully understand the terms and consequences of this Agreement, and whereof, have executed this Agreement.
Dated: __3-29-11____
By: ______________(signed)
Rich Guillen
Dated:____________
By:_______________
Sue McCloud, Mayor
City of Carmel-by-the-Sea
Approved as to form:
Dated: __3/29/2011_
SPIERING, SWARTZ & KENNEDY
By: ____________(signed)
Andrew H. Swartz
Dated:__________
KENNEDY, ARCHER & HARRAY
By:_____________
Jon R. Giffen
Approved as to form:
Dated:_____________
SPIERING, SWARTZ & KENNEDY
By:________________
Andrew H. Swartz
Dated:__March 29, 2011_
KENNEDY, ARCHER & HARRAY
By:______________(signed)
Jon R. Giffen
ADDENDUM:
Agenda Packet
City Council
Regular Meeting
Tuesday, April 5, 2011
1 comment:
Thankfully we are finally rid of Guillen. It should have happened a long time ago. Prior to the suit that eventually forced him out. He should have been fired as soon as his sexual aggression on the job first became apparent. He should have been fired even earlier for general ineptitude. He should have been fired for lack of executive and administative skills. He would never have been hired if he hadn't been willing to allow the mayor to make the executive/administrative decisions that were really his job and that of other senior city managers (before they were forced out and never replaced). In any case, he is gone at last. Now Carmelites must make sure that Sue McCloud does not get to hire another Guillen. It will probably take years to undo the damage that Guillen and McCloud have done to Carmel. That can't even begin to happen until we get a competent city administrator running the city and a city council, whose members are willing to step up and do their job.
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