SEPARATION AGREEM8NT AND RELEASE

'rHIS SEPARATION AGREEMENT AND RELEASE {hereinafter ''Agreement") is

made and entered into by and between the City of Carmel-by-the-Sea
(hereinafter "City") and Jason J. Stilwell (hereinafter "Employee").
RECITALS
This Agreement is made and entered into with respect to the
following facts;
(a) Employee presently serves as the appointed City Administrator
of the City pursuant to the September 28, 2011, Employment
Agreement; and First Amendment to Employment Agreement dated
.l);qt. . .J,ey- 3tzCO and
(b) Employee and City have provided in that Employment Agreement
for situations where the City Council of the City may provide
for the termination without cause of the employment
relationship described in that Employment Agreementi and
(c) City Council accepted Employee's resignation effective upon
the appointment of a new City Administrator; and
(d) City Council appointed a new Ci ty Administrator effective
October 6, 2014; and
(e) Employee recognizes the right of City to release Employee
from the Employment Agreement upon the terms stated therein,
and both parties r ecognize the authority of the City Council
to creat-e and direct policy, and to -determine th-e dir-ection
that the City Council decides to take for the City; and
(f) The parties desire by this Agreement to settle as between
them any and all claims arising out of Employee's employment
with City, and to effectuate the conclusion of such
employment under the Employment Agreement.
AGREEt4ENT
1. Resignation. Employee hereby voluntarily and irrevocably
resigns from employment v1ith City effective with the appointment of a
new City Administrator.
2: The Parties' Full Release. In return for the consideration
discussed in Paragraph 7. of this Agreement, Employee, and on behalf of
his heirs, successors, and assigns, on the one hand; and City, its
successors, assigns, employees, officers, and directions, on the other
hand; agree to forever release and discharge each other and each
other's predecessors, s uccessors, employees, officers, directors, and
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anyone else acting on behalf of such party (collectively "Released
Parties'') from any and all claims , charges, liabilities, liens, damages
and causes of action, obligations, and duties, known or unknown, which
the non-releasing party may have, or may claim to have, against any of
the Released Parties arising out of or, in any way related to
Employeets -relationship or involvement with City or any of the Released
Parties, including any contractual or employment relationship or
involvement, save and except for the obl igations stated in this
Agreement. This Release specifically extends to, without limitation,
claims or causes of action for breach of contract, wrongful
termination, breach of an express or implied contract, breach of the
covenant of good faith and fa ir dealing
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breach of fiduciary duty or
any other duty, fraud, mi srepresentation, interference wi th an
contract uaJ or other business relationship, infliction of emotional
distress, discrimination, harassment, retalialion, disability, loss of
future or past earnings, whistleblower-related claims , and claims
brought under the California State Constitution, the United Sates
Const itution, or applicable state and federal fair employment statutes
and regulations, including but not limited to: the Civil Rights Act of
1964, as amended; the Fai.r Labor Standards Act, as amended; the Worker
Retraining and Notification Act of 1988, as amended; the Americans with
Disabilities Act of 1990, as amended; the Rehabilitation Act of 1973,
as amended; the Emp loyee Retirement Income Securi ty Act of 1974, as
amended; the Age Discrimination in Employment Act , as amended; and the
California Fair Employment and Housing Act , as amended. Nothing in
this Agreement shall affect the U.S . Equal Employment Opportunity
Commission's ("EEOC") rights and responsibilities to enforce the Civil
Rights Act of 1964, as amended; the Age Discrimination Employment Act
of 1967, as amended; or any other applicable law, nor shall anything in
this Agreement be construed as a basis for interfering with Employee ' s
protected right t o file a charge with, or participate in an
investigation or proceeding conducted by, the EEOC, or any other state,
federal or local government entity; pr ovided, however, if the EEOC or
any other state, federal or local government entity commences an
investigation on Employee's behalf, Employee specifically waives and
releases his right, if any, to recover any monetary or other benefits
or r elief of any sort whatesoever arising from any such investigation .
Employee, on behalf of himself and the other Releasing
Parties, agrees that neither he nor the other Releasing Parties shall
make any accusation, claim, or comment, orally or in \vriting, to any
person or entity, or make or file any action regarding City or any
other Releasee (s), alleging City or any other Releasee (s) discriminated
against Employee based upon Employee's race, sex, age, or any other
characteristic; harassed Employee based on Employee's race, sex, age ,
or any other characteristic; or wrongfully terminated Employee .
3. Waiver - California Civil Code Section 1542. This release is
intended as a full settlement and compromise of each, every, and all
claims of every kind and nature whether based on statute, regul ation,
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tort, contract, public policy, or any other theory, which either party
has every had relating to, or arising out of, Employee's relationship
with City. No claim, right, cause of action or demand is reserved.
The Parties expressly waive any and all rights they may have under
Section 1542 of the Civil Code of the State of California, which
-p-rovide-s --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.
All parties, understanding and acknowledging the significance
and consequence of this Section, hereby expressly waiver and
relinquishes all rights and benefits he or it may have under that
statute as well as under any other statutes or common law principles of
similar effect.
The Parties understand and acknowledge that the significance
and consequence of the waiver of California Civil Code section 1542 is
that even if such party should ever discover damages arising out of or
relating to Employee's relationship with City, such party will not be
able to make any claim for those damages. The Parties acknowledge that
the other party intends these consequences even as to claims for
damages that may exist as of the date of this Agreement, but which such
party does not know exist, and which, if known, would materially af fect
such party's decision to execute this Agreement, regardless of whether
the lack of knowledge is the result of ignorance, oversight, error,
negligence, or any other cause.
4. Judicial Actions Prohibited. Employee and any person acting
by, through or under him shall not institute any claim in state or
federal court or with any state, federal or local governmental
administrative agency, arising out of or occurring durJ.ng his
employment with City or termination of that employment.
5. Disclosure. Employee and City acknowledge that, by reason of
City's obligations pursuant to the California Public Records Act
(Government Code Sections 6250 et seq.) City is required to provide a
copy of this Agreement, upon request , to members of the public.
6. f\cceptr.mce of Resigna,tj.gn. City shall be deemed, for all
purposes, to have accepted Employee's resignation by execution of this
Agreement.
7. Consideration. In consideration of Employee's release, by
virtue of this said resignation pursuant to Paragraph 1. of this
Agreement, City agrees to the follo\ving:
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a) Employee will remain on City payroll at his current
regular rate and will continue to receive his regular
benefits until November 30, 2014; and
b) Employee shall be placed on leave status from December
1, 2014, through and including until January 31, 2015,
(hereinafter "Notice Period"); and
c) Payment to F:mpl oyee in monthly installments as cash
severance payment equal to six months pay following the
Notice Period us set forth in paragraph 7.b) above; and
d ) Payment to Employee of salary and all benefits at his
current rate, as set forth in this paragraph 7. less all
applicable federa l , state and local withholding taxes
and deductions; and
e) Payment of Employee's benefits previously accrued to
Employee under the City' s adopted personnel policies at
the current level with the same coverage for Employee
and his dependents and at the current rate so as to
continue coverage in effect. without interruption for six
months after the Notice Period; and
f) Employee agrees to be available to assist the new City
Administrator , J.f requested, at no additional cost to
City.
8. No Claims, Com,plalnts or ActiQns. Employee affirms that he
has not filed, caused to be filed, or presently is a party to any
claim, complaint, or action against. City or Releasees in any forum.
Employee furthermore affirms that he has no known workplace
injuries or occupational diseases and 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.
Employee furthermore affirms that he currently is unaware of
any claim, right, demand, debt, contract, agreement, action,
obligation, liability or cause of action that he may have against City
or any other Releasees which will not be released by this Agreement.
9. Professional Reputation. City shall refrain from any
statements, public or private, concerning Empl oyee which would have the
effect of damaging his professional reputation or personal character.
10. Employment Records. Employment records of Employee
maintained by City shall contain an entry reflecting his "voluntary
resignation". 'l' he employment records maintained by City shall incl ude
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only the normal and customary employment records, and not any notes,
drafts, or other documents not previously provlded to Employee and made
part of his official employment file.
""""tl. -unemplO\lroent. City agrees that lt -will not- contest
Employee's application for unemployment benefits nor wi l l it appeal any
de.cision by the Employment Development Departmnt.
12. LegaJ. Servlces-Ihird Party !=:]aims . City will defend Employee
and will indemnify him as provided in Government Code Sections 825(a)
and {b) to the same extent that it would provide any other employee or
officer of City with such legal defense and indemnification in ay
action in which Employee is named as a defendant, in either his
official or individual capacity, arising out of his employment with
City. ln turn, Empl oyee will cooperate with City in the preparation or
defense of pending or actual litigation involving his knowledge of City
actions to the extent reasonably possible.
13. Prior Agreements . 'I'his Agreement superseded any prior
agreement or understanding between the parties, written or oral, and
constitutes a complete resol ution of all claims between the parties .
14. Modification of Agreement . There can be no modification of
this Agreement except in a writing duly executed by the parties hereto.
15. Interpretation of Agreement . This Agreement and the rights
and obligations hereunder shall be governed by, and construed and
interpreted, in all respects in accordance with the laws of the State
of California.
16. Venue. Should any dispute arise under this Agreement, venue
for any court action shall be in the appropriate court in Monterey
CountyJ California.
17. Effect of Agreement. Parties agree that this agreement is
not an admission of guilt or concession of fault by either party.
18. Legal Advice. Employee sought and received legal and
financial advice regarding the effect of this Agreement prior to
signing it. Employee acknowledges that he has been given a reasonable
per1od of time to study this Agreement before signing it . Employee
also acknowl edges that he is executing this Agreement freely, kno\tlingly
and voluntarily and is fully aware of the contents and effects thereof
and that his execution of this Agreement is not the result of any
fraud, duress , mistake or undue influence whatsoever. Other than the
terms and conditions se t forth in this Agreement, Employee does not
rely on any inducements , promises or representations by City or any
person in executing this Ag r eement.
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19. Attorney's E"ees. Each party shall bear his or its own
attorney's fees and costs i ncurred in connection with negot1ating and
entering into this Agreement. If any legal action or any arbitration
or other proceeding is brought to enforce this Agreement or because of
-- arr alleged dispute , breach, default -or in conrtection
with any of the provisions of this Agreement, the prevailing party or
parties shall be entitled to recover reasonable attorney's fees and
otl-.er costs ir.cur red in that action or proceeding, including those
incurred in enforcing any judgment, in addition to any other relief to
wryich he or it may be entitled.
20. Understandi ng of the Parties. Employee and City acknow_edge
that they have read this Agreement and fully understand the terms,
nature and effect of this Agreement which they voluntarily execute in
good faith and deem to be a fair and equitable settlement of all claims
between the part ies.
21. Employee In executing this Agreement,
Employee understands and represents that reliance is placed whol ly upon
his judgment, belief and knowledge as to th.e nature, extent and
duration of his claims against Cityi that no statement with regard
thereto made by or on behalf of any of the Releasees has in any way
influenced Employee in making his settlement; that the foregoing
payment is received in settlement and compromise of a disputed claim
and not an admission of any liability whatsoever; that this Agreement
contains the entire agreement between Employee and Releasees with
regard to the subject matter of this Agreement; and that the terms
hereof are contractual and not mere recitals.
22. Counterparts. This Agreement may be executed in
counterparts, each to constitute and original.
23 . Employee may revoke this Agreement within a
period of seven {7} calendar days following the day he executes this
Agreement. 7\ny revocation within this period must be submitted, in
writing, to Donald G. Freeman, City Attorney, City of Carmel-by-the-
Sea, and state, "I hereby revoke my acceptance of our Separation
Agreement and Release". Thi s revocation must be personally delivered
to Attorney Freeman, or mailed to Attorney F'reeroan at P. 0. Box 805,
Carmel, California, 93921, and postmarked within seven (7} calendar
days of execution of this Agreement. This Agreement shall not become
effective or enforceable under the revoca1:ion period has expired. If
the last day of the revocation period is a Saturday, Sunday, or legal
holiday in the state in which Employee was employed at the time of his
last day of employment, then the revocation period shall not expire
under the next following day which is not a Saturday, Sunday, or legal
holiday.
EMPLOYEE IS HEREBY ADVISED THAT HE HAS UP TO TWENTY-ONE (21)
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CALENDAR DAYS TO REVIEW THIS AGREEMENT TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTION OF THIS AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIALS OR
-MADE - To THis -.AGREEMENT oo NoT o:a AFF'ElCT nriNY-M.ANNER THE -
ORIGINAL TWENTY-ONE (21) CALENDAR-DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREJCMENT, TO FULFILL THE PROMISES
AND TO RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH 7 . ABOVE, EMPLOYEE
FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS
AGREEMENT rNTENOING TO WAIVE
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SETTLE AND RELEASE ALL CLAIMS HE HAS OR
MIGHT HAVE AGAINST CITY, INCLUDING ANY CONTRACTUAL OBLIGATIONS CITY MAY
HAVE TO EMPLOYEE.
The undersigned hereby declares that he has read this Agr eement
carefully and fully understands the same.
EXECUTED on tP d 1 _,
California.
2014, at

The foregoing is approved and accepted.
Date:
CARME.L- BY -THE-.SEA rf-1__ .
By: . .?'J.)t7V-
ON BURNETT, Mayor
JASON J. STILWELL
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