and: kevin modica between; city of portland, oregon...

SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS

BETWEEN; City of Portland, Oregon

AND: Kevin Modica

1. Parties to the Separation Asreement and Release of All Claims (herenmfter"Agreement")

1.1. The parties to this Agreement are the City of Portland (City) and Kevin Modica(Employee).

1.2. The term "Employee" means Kevin Modica, his heirs, executors, representatives,

attorneys and assigns.

1.3. The term "City" means the City of Portland, and each of the City's bureaus,

divisions, commissions, boards, affiliates, related corporations and independent

contractors of the City, and each of the past, present and future elected officials,officers, employees, representatives, insurers, and agents of the City (all and each

in their individual and representative capacities).

2. Effective Date

This Agreement shall become effective and enforceable upon signature by the Parties.

3. Background and Purpose

3.1. Employee has asserted potential claims against the City based upon, or related to,his employment with the City.

3.2. Employee represents that no charge, grievance, claim or action has been filed with

the EEOC, Oregon Bureau of Labor, any union, any court or administrative body.

3.3. The City and Employee desire to bring all pending and potential claims anddisputes that Employee has or might have with the City to a final resolution byway of compromise and settlement, and they consider it appropriate to settle andcompromise any and all claims arising prior to the effective date of thisAgreement that Employee has made or could make in the future concerning orrelated to his employment with the City.

4. Consideration

4.1. Reinstatement of Rank

Ji: Upon execution of this Agreement by the Parties, the City^ill reinstate Employee[)

to the rank of Assistant Chief until his retirement on June^; 2017. In exchange'•!-)iy':— for reinstatement to the rank of Assistant Chief, Employee agrees to a full and

SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS of 7

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complete release of all claims he has or might have against the City related to hisemployment with the City.

^Should Employee elect not to resign or retire on June ^9, 2017, his appointment toAssistant Chief will be rescinded and he will be reinstated to the rank of Captain.

4.2. General Release

In consideration of the promises and agreements made by City in this document,Employee, by signing this Agreement accepts this settlement as a complete andfinal resolution and settlement of any and all liabilities and claims, direct orindirect, under any state or federal authority, and voluntarily releases and forever

discharges the City from all claims arising from or in any way related toEmployee's employment as a City of Portland employee or his severance fromemployment. This release and discharge includes, but is not limited to, any andall claims Employee has or might have asserted for non-disclosure, fraud,

misrepresentation in the inducement of this Agreement, grievances under a

collective bargaining agreement or as claims in other actions, suits or proceedings

that have or could have been brought under any labor agreement, the Charter andCode of the City of Portland, Oregon, any local, state or federal statutes andregulations, or common law, including, but not limited to the City of PortlandCivil Service Rules, Human Resources Administrative Rules, the Oregon

Employer Liability Law pursuant to Chapter 654 of the Oregon Revised Statutes,Oregon Fair Employment Practices Act (ORS Chapters 659A and 659), Title VIIof the Civil Rights Act of 1964, the Civil Rights Act of 1991, the FederalRehabilitation Act of 1973, all federal and state wage and hour statutes and theFederal Fair Labor Standards Act, the Americans with Disabilities Act, theFamily Medical Leave Act, the Age Discrimination in Employment Act, theUniformed Services Employment and Reemployment Rights Act of 1994 (38USC Sections 4301-4333), 42 USC Sections 1981-1988, the Equal Pay Act of1963, the Oregon Constitution and the Constitution of the United States, and allclaims for attorney fees and costs.

5. ADEA Release

a. Employee expressly waives any and all claims alleging discrimination inemployment on the basis of age under state law, ORS 659A.030, as wellas claims under the federal Age Discrimination in Employment Act of1967(ADEA).

b. For purposes of the ADEA, Employee acknowledges that he has hadtwenty-one (21) days to consider the release of all claims under the federalADEA.

c. Employee understands and agrees that he has seven (7) days following thedate he signs this agreement to revoke his waiver of claims under the


ADEA and that this portion of this Agreement waiving claims of agediscrimination will not become effective until the revocation period hasexpired.

d. By signing this document, Employee knowingly and voluntarily waivesany and all claims under the ADEA as of the date that the Agreement islast signed by the parties and the 7-day revocation period has expired.Neither Employee nor anyone on his behalf may sue the City of Portland,any of its bureaus, board, commissions, elected officials, officers,

employees or agents, insurers or any of their successors or assigns for any

claim of discrimination based on age arising out of his employment priorto the effective date of this Agreement.

6. No Admission of Liability

The commitments by the City provided by this Agreement are to compromise disputedclaims and shall not operate or be interpreted as an admission of liability as to any claim,past, present or future, known or unknown, suspected or unsuspected, that Employee has

or might have asserted against the City, arising out of conduct that occurred prior to thedate of this Separation Agreement and Release of All Claims, which liability is expresslydenied.

7. Agreements

7.1 Agreement as to Total Severance from Employment

As a condition to the payment by the City described above. Employee, by thisAgreement waives any right employee has or may have to employment,reemployment, reinstatement, recall, bumping or seniority with the City. Thisincludes rights pursuant to Portland City Charter, City Code, City HumanResources Administrative Rules, labor agreement, or any local, state or federal

statute or common law. This provision does not preclude Employee from applyingfor re-employment with the City through the City's regular employmentprocesses.

7.2. Agreement That Retirement is Voluntary

Employee's decision to retire and separate from City service is made freely andvoluntarily and no threats, advice, or promises not evidenced in this Agreement

have been made by the City or its representatives.

7.3. Agreement Not to Sue

7.3.1. In exchange for the settlement considerations, undertakings and covenants

by the City described in this Agreement, Employee agrees not to prosecuteor hereafter maintain or institute any claim, action at law, suit or

proceeding in equity, administrative or any proceeding of any kind or


nature whatsoever in any court or any other forum against City for any

reason related in any way to the dispute or to any other claim released

herein. Employee further agrees that he will not raise any claim againstCity by way of defense, counterclaim or crossclaim or in any other

manner, on any alleged claim, demand, liability or cause of action released

herein. At the time of execution of this Separation Agreement andRelease of All Claims, Employee represents that there are no other claims,

complaints or charges pending against City in which he is a party orcomplainant.

7.3.2. Employee understands and expressly agrees that if he ever asserts any

claim, action or suit against the City or against any of the City's electedofficials, officers, bureaus, employees, agents and insurers and their

successors, individually and collectively, arising out of or in connection

with Employee's employment with the City provided by this Agreement,the City may plead this Agreement as an absolute defense to any suchclaim, action or suit. Furthermore, in the event any claim, action, or suit is

asserted, this settlement shall be construed to allow the City to use in itsdefense any and all matters, evidence, testimony, documentation, and

records that exist or existed prior to the execution of this settlement.

7.4. Agreement of Understanding as to Disclosure of Terms

7.4.1. The Parties further understand, stipulate and agree that since the City is apublic body under Oregon law, this document and the terms thereof aredisclosable and discoverable under the Public Records Law of the State ofOregon pursuant to Chapter 192 of the Oregon Revised Statutes, and thatno promise, guarantee or provision can be made with respect to the

confidentiality, publicity, or reporting of the terms of this Agreement.

7.4.2. This agreement shall be placed in the appropriate personnel files.

8. Acknowledements

8.1. Acknowledgement as to Known and Unknown Losses

8.1.1. This Separation Agreement and Release of All Claims is intended to, anddoes, cover not only all known losses and damages, and all claims asserted

or that could have been claimed or asserted as of the date of thisAgreement, but any further losses and damages resulting from Employee's

employment which are not now known or anticipated which may laterdevelop or be discovered, including all effects and consequences thereof.

This includes but is not limited to any tort or breach of contract, breach ofexpress or implied employment agreement, wrongful discharge,constructive discharge, intentional infliction of emotional distress,discrimination, defamation, non-disclosure, fraud, misrepresentation,

misrepresentation in the inducement, discrimination, defamation, loss of


consortium or tortious interference with contractual relations. This also

includes any damage that may result from disclosure of information madeas a result of any order issued pursuant to the State of Oregon PublicRecords Law (Chapter 192 of the Oregon Revised Statutes).

8.1.2. Employee acknowledges that he is aware that he or his attorney may

discover facts different from or in addition to the facts that they now knowor believe to be true with respect to his employment or any of the claimshe has asserted or could assert or any other claim that is in any way relatedto Employee's employment with City or his voluntary retirement, or withrespect to the subject matter of the Dispute, but that it is his intention toand he hereby does fully, finally absolutely and forever settle any and allclaims, disputes and differences with City as described herein.

8.2. Acknowledgment as to Cooperation in Implementing Agreement

Employee and City agree to execute, acknowledge and/or deliver any and alldocuments reasonably necessary to carry out and perform their respective

obligations under this Agreement.

8.3. Acknowledement as to Separation Agreement and Release of All Claims MadeWith Advjce of CQunsel

The Parties acknowledge and agree that they have been represented and advisedby legal counsel of their own choice throughout all negotiations and mediationsessions, if any, that preceded the execution of this Separation Agreement andRelease of All Claims, and with respect to the execution of this SeparationAgreement and Release of All Claims. The parties acknowledge and agree thatthe City advised Employee to take this Agreement and Release to an attorney ofhis own choosing for review and explanation, and that he did so.

8.4. Acknowledgment as to Time for Consideration of Offer and Agreement.

Employee acknowledges that he has had a reasonable period of time in which toconsider, negotiate and sign this Agreement.

8.5. AcknQwledgementas to Resolution of Ambiguous Terms

Both parties acknowledge that they have had an opportunity to provide, edit andalter language of this settlement agreement, and that they have had an opportunityto review it with counsel. Therefore the parties stipulate and agree that thissettlement shall not be automatically construed for or against either party in orderto resolve any ambiguity of any of the terms of this settlement.

9. Prior Agreements Superseded

This Separation Agreement and Release of All Claims contains the entire agreement ofthe City and Employee and supersedes all prior or contemporaneous oral or written


understandings, statements, representations or promises and is intended fully to integrate

the agreement between Employee and City with respect to settlement of the mattersdescribed herein,

10. Attorney Fees

The Parties agree and expressly represent that any and all claims for attorney fees

incurred in connection with or arising out of their respective claims or disputes are

expressly discharged by this Agreement.

11. Choice of Law

This settlement document shall be construed in accordance with and governed by thestatutes of common law of the State of Oregon (without regard to choice of law rules).Any disputes now or hereafter arising in connection with the execution or operation of

these documents, regardless of whether such disputes arise in contract, tort or otherwise,

shall be governed and determined by the applicable laws of the State of Oregon.

12. Signatures and Certifications

I, KEVIN MODICA FURTHER AGREE AND CERTIFY THAT [initial each]:

1 HAVE CAREFULLY READ THIS ENTIRE DOCUMENT

I HAD AN ADEQUATE OPPORTUNITY TO CONSULT WITH ANATTORNEY OF MY CHOICE PRIOR TO SIGNING THIS AGREEMENT

THE CITY HAS PROVIDED NO INFORMATION CONCERNING POSSIBLETAX CONSEQUENCES OF THIS AGREEMENT AND RELEASE OFPAYMENTS THEREUNDER

I INTELLIGENTLY, KNOWINGLY AND VOLUNTARILY AGREE TO THETERMS OF THIS AGREEMENT AND RELEASE

I AM SIGNFNG THIS AGREEMENT AND RELEASE VOLUNTARILY ANDWITH THE FULL INTENT OF RELEASING THE CITY FROM ALL CLAIMSRELATING TO, OR ARISING OUT OF, MY EMPLOYMENT WITH THECITY OF PORTLAND.

I UNDERSTAND THAT IF I EVER ASSERT ANY CLAIM AGAINST THECITY ARISING OUT OF MY EMPLOYMENT WITH THE CITY THATEXISTED OR OCCURRED BEFORE THE EFFECTIVE DATE OF THISAGREEMENT, THIS AGREEMENT MAY BE PLEADED AS ANABSOLUTE DEFENSE TO THE CLAIM.

I UNDERSTAND THIS AGREEMENT COVERS NOT ONLY KNOWNLOSSES AND DAMAGES, BUT ANY FURTHER LOSSES, DAMAGES ANDCONSEQUENCES RESULTING FROM MY CITY EMPLOYMENT EVEN IF


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THEY ARE NOT NOW KNOWN, ANTICIPATED, DEVELOPED ORDISCOVERED.

NO ONE HAS MADE ANY PROMISE OR REPRESENTATION TO INDUCEME TO SIGN THIS AGREEMENT THAT IS NOT CONTAINED IN THISAGREEMENT OR THE CONTEMPORANEOUSLY EXECUTED TARGETEDSEVERANCE AGREEMENT.

I HAVE NOT RELIED ON ANY PROMISE OR REPRESENTATION THAT IS/ NOT CONTAFNED IN THIS AGREEMENT OR THE

CONTEMPORANEOUSLY EXECUTED TARGETED SEVERANCEAGREEMENT IN DECIDING TO SIGN THIS AGREEMENT.

FN WITNESS WHEREOF, the parties have signed this Agreement as of the day and yearwritten below.

EMPLOYEE:

f/ . / /

^.- ^ ^/4^- _ Date: June ^7 ,2017]êvin Modica/E?nployee

CITY:

^^./^ cr^/^^. //A<^Date: June ^°, 2017

Ted Wheeler, Mayor and Commissioner In Charge

Date: June ^ ,2017Psft. Mike Marshman, Chief of PoJLiê

7^^^^ lc^^^t /ô^yLLT — Date: June -^ , 201 7Anna Kanwit, Director

Bureau of Human Resources

ÔVED.AS TO KORM:

A/i^f (-^\, ^: June 24.,Mark AmbergChief Deputy City Attorney

Matthew C. EllisAttorney for Employee

Date: June _, 2017


and: kevin modica between; city of portland, oregon...

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