The former Mammoth Town Manager’s Separation Agreement with the Town of Mammoth Lakes became final yesterday. The Town released a copy to Sierra Wave Media upon request. The document confirms that Wilbrecht resigned, that neither party will sue the other and that Wilbrecht gets nine months’ salary and accrued comprehensive leave money. The Town and the Manager both agreed not to make disparaging remarks about each other.
The Separation and Release Agreement was signed by Wilbrecht and apparently Mayor Matthew Lehman on February 6th. It became fully effective on the 14th, allowing Wilbrecht seven days to change his mind. He didn’t.
Wilbrecht’s severance package includes nine months’ salary, which is the gross amount of $149,250. The Town must pay Wilbrecht within ten business days of the agreement’s effective date, and the Town will pay accrued but unused comprehensive leave. The document says by February 15th, Wilbrecht must return cell phones, credit cards, entry cards, keys, badges and computer data to the Town.
The document says Wilbrecht agrees not to file claims against the Town, including claims of discrimination of any kind. Both parties agree not to sue the other. The document says the agreement itself shall not be construed as “an admission by either party of any liability, misconduct, or wrongdoing whatsoever against the other or any other person.” The Town is also not admitting any violation of rights or laws.
The document says that the Town and Wilbrecht agree to “refrain from any comment that is disparaging of one another.” The Town also agrees that it will only release to prospective employers or others Wilbrecht’s dates of employment, positions held, and final salary.
So the public will likely never know what actually happened between Wilbrecht and Town officials. It is known that Wilbrecht’s contract with the Town was effective June 1, 2011 and, according to Town Attorney Andy Morris, was never “amended, revised, extended, or altered in any way.” Morris said he realized that there has been some confusion on this, but he said there was no later contract, side letter or anything else. The June 2011 contract is “all there ever was,” he said.
Asked when Wilbrecht had gone on administrative leave, Morris said he did not want to “characterize Dave’s leave as administrative leave or any other kind of leave.” Morris did confirm that Wilbrecht “has been out on leave since Monday, February 4th.” (The actual agreement follows:)
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (“Agreement”) is entered into by and between David Wilbrecht (“Employee”) on the one hand, and the Town of Mammoth Lakes (“Town”) on theotherhand. EmployeetogetherwithTownshallbereferredtohereinasthe“Parties.”
This Agreement is made with reference to the following facts:
1. Employee has been employed with the Town as Town Manager since June 2011.
2. Employee wishes to resign subject to the terms in this Agreement, and the Parties desire to resolve all issues related to Employee’s employment.
NOW, THEREFORE, in consideration of the foregoing recitals and the promises, mutual covenants and warranties set forth herein, and for other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT The Parties, and each of them, agree as follows:
Employee hereby resigns from his position as Town Manager effective on the Effective Date defined below, and Town hereby accepts and relies upon Employee’s resignation.
2. Severance Package
A. If Employee executes this Agreement, and does not revoke it as provided in Section 17 prior to the Effective Date, Town will provide Employee with the equivalent of nine (9) months’ salary, which is the gross amount of one hundred forty-nine thousand two hundred fifty dollars ($149,250.00) This payment shall be made within ten (10) business days of the Effective Date herein.
B. The Parties agree and acknowledge that all of Employee’s accrued but unused comprehensive leave will be cashed out in conjunction with the next available payroll cycle.
C. All payments under this Agreement are subject to applicable payroll taxes and withholdings, whether state or federal.
3. Property and Eciuipment
On or before February 15, 2013, Employee shall return to Town all Town property he has had in his possession or control, including but not limited to cellular phones, credit cards, entry cards, keys, identification badges, and computer data.
4. Waiver of Discrimination Claims
Employee 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 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 statutes provide Employee with the right to bring an action against the Town if Employee believes he has been discriminated against based on race, ancestry, creed, color, religion, sex, marital 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. Employee understands the rights afforded to him under these Acts and agrees that he will not bring any action against the Town based on any alleged violation(s) of these Acts. Employee hereby waives any right to assert a claim for any relief under these or similar Acts, including but not limited to back pay, attorney fees, damages, reinstatement, and/or injunctive relief arising out of his employment with Town or the separation from such employment.
5. Waiver of Age Discrimination Claim
Employee understands and acknowledges that the Age Discrimination in Employment Act of 1967, as amended, provides Employee the right to bring a claim against the Town if Employee believes that he has been discriminated against on the basis of age. Employee understands the rights afforded under this Act and agrees that he will not bring any action against the Town based on any alleged violation(s) of the Act. Employee hereby waives any right to assert a claim for relief under this Act, including but not limited to back pay, attorney fees, damages, reinstatement, and/or injunctive relief arising out of his employment with Town or the separation from such employment.
6. General Release of All Claims
Excepting the obligations that are expressly set forth in this Agreement, the Parties shall and hereby do release and forever discharge each other, as well as their predecessors, successors, heirs, executors, administrators, other present or former employees, board members, officers, agents, attorneys, directors, successors and assigns (collectively, “Released Parties”), from all claims related in any way to the transactions or occurrences between Employee and the Town to date, to the fullest extent permitted by law. This release is intended to be interpreted broadly to apply to all transactions and occurrences between Employee and the Town, including but not limited to any and all claims related to Employee’s employment and employment conditions with the Town and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising directly or indirectly out of or in any way connected to Employee’s employment with the Town or the separation from such employment
(collectively, “Released Claims”). Released Claims include, but are not limited to, any claim based in common law, the state or federal Constitution, state or federal statutes (including, without limitation, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Rehabilitation Act, the federal Family Medical Leave Act, 42 U.S.C. section 1983, the California Fair Employment and Housing Act, the California Labor Code, and the California Family Rights Act), all contract or tort claims (such as wrongful termination, constructive discharge, breach of contract, breach of the covenant of good faith and fair dealing, fraud, defamation, libel, invasion of privacy, and intentional or negligent infliction of emotional distress), and all related claims for physical injuries, illness or damage, and all claims for attorneys’ fees, costs and expenses, grievances, claims and/or appeals under federal or state law, the Town internal administrative review procedures, or Employee’s employment agreement.
7. Waiver of Civil Code Section 1542
It is understood and agreed that the releases as referred to herein are full and final releases by each party of the other, and that such full and fmal releases include, without limitation, all unknown and unanticipated claims, injuries, debts, or damages, as well as those now known or disclosed. With respect to all claims, each party expressly waives 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
In that connection, each party realizes and acknowledges that one or more of the Released Claims may include losses sustained by that party on account of the other that are presently unknown or unsuspected, and that such losses as were sustained may give rise to additional losses and expenses in the future which are not now anticipated. Nevertheless, each party acknowledges that this release has been negotiated and agreed upon and that in consideration for the rights and benefits under this Agreement, the Parties intend and hereby do release, acquit and forever discharge each other from any and all claims, including those that are unknown, unsuspected or unforeseen or that are presently unknown and unanticipated.
8. Release of Claims/Covenant Not to Sue
A. Employee represents that he has not filed any complaint, grievance, claim, or action against the Town or any of its Town Council members, officers, agents, directors, employees, or representatives with any state, federal, or local agency, board, arbitrator, or court based on any matters arising out of his employment with the Town and/or his separation from Town employment, and that he will not do so at any time hereafter.
B. Employee further covenants not to sue or file any complaint, grievance, claim or action at any time hereafter based on any matters arising out of or in any way relating to his employment with the Town, or separation from Town employment, that could have been filed as of the Effective Date of this Agreement.
9. No Admission of Liability
This Agreement and compliance with it shall not operate or be construed as an admission by either party of any liability, misconduct, or wrongdoing whatsoever against the other or any other person; nor as an admission by the Town of any violation of the rights of Employee or any other person; nor as a violation of any order, law, statute, duty, or contract whatsoever against Employee or any other person. Rather, the Parties expressly deny any liability to one another.
10. Mutual Drafting and 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.
Any notices or other communications to be given to either party pursuant to this Agreement shall be in writing and delivered personally or by U.S. Mail, postage prepaid, addressed to the party at the address set forth below. Notice so mailed shall be deemed delivered three (3) business days after deposit in the U.S. Mail. Nothing shall preclude the giving of notice by fax, which shall be effective upon receipt of the fax; provided, however, that notice by fax shall be followed by notice deposited in the U.S. Mail as discussed above.
TOWN OF MAMMOTH LAKES P.O. Box 1609 Mammoth Lakes, California 93546 ATTENTION: TownManager
DAVID WILBRECHT P.O. Box 1356 Mammoth Lakes, CA 93456
12. Mutual Non-Disparagement~ Confidentiality of Employment Information
The Parties agree to refrain from any comment that is disparaging of one another. Town agrees that it will release to prospective employers or to other inquiring third parties only Employee’s dates of employment, positions held, and final salary. Other employment information about Employee (including but not limited to this Agreement) will be released by the Town only: (a) with Employee’s written consent; (b) to refute or defend a claim or allegation by Employee; or (c) as otherwise required by law. The Parties acknowledge that this Separation Agreement is a public record subject to release upon request.
13. Entire Agreement
This Agreement constitutes the entire agreement between Employee and the Town. 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 the Town and Employee, and must state that the parties intend to amend the Agreement. None of the Parties are relying upon any other negotiations, discussions or agreements in connection with the subject matter of this Agreement. This is a fully integrated agreement.
14. Severability and Waiver
A. If any provision of this Agreement is adjudicated by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement which can be given full force and effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.
B. Any of the terms or conditions of this Agreement may be waived at any time by the party entitled to the benefit thereof; but no such waiver shall affect or impair the right of the waiving party to require observance, performance or satisfaction either of that term or condition as it applies on a subsequent occasion or of any other term or condition hereof
15. Choice of Law; Venue of Actions; Costs and Fees
This Agreement shall be interpreted according to the laws of the State of California. Venue of any legal action shall be in Mono 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 shall prevent the parties from mutually agreeing to binding arbitration of any dispute, in which case the arbitrator may award attorneys’ fees and litigation costs to the prevailing as described above.
16. Voluntary Execution of Agreement
Employee represents that he has carefully read this entire Agreement and that he knows and understands its contents. The Parties have each had the opportunity to receive independent legal advice from attorneys of their choice with respect to the preparation, review, and advisability of executing this Agreement. The Parties further represent and acknowledges that they have 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 legal counsel, if any.
17. Right of Review/Revocation
Employee acknowledges that he has sought the assistance of counsel in negotiating the terms of this Agreement and that he has consulted with an attorney prior to signing this Agreement. Pursuant to the Age Discrimination in Employment Act and the Older Workers’ Benefit Protection Act, the Town hereby notifies Employee that he has up to twenty-one (21) days within which to consider whether he should sign this Agreement, although he may sign this Agreement in less time if he so chooses. In addition, should Employee choose to sign the Agreement, he shall have seven (7) days following the date on which he signed the Agreement to revoke this Agreement. If Employee chooses to revoke this Agreement pursuant to this paragraph, Employee must do so in writing, delivered to the Town at the address specified above within the seven (7) day revocation period. This Agreement does not become effective until the eighth day after signature when this seven-day period has elapsed without Employee’s revocation of this Agreement (the “Effective Date”).
18. Each Part to Bear Own Costs and Fees
Each Party shall bear its own attorney’s fees and other costs (including costs of expert witnesses or other consultants) incurred in the preparation, negotiation, and drafting of this Agreement.
The Agreement may be executed in two or more counterparts, including via facsimile or electronically-transmitted signature, each of which shall be deemed an original, but all of which together shall constitute one-in-the-same document.