WANER AND RELEASE AGREEMENT
BY AND BETWEEN
THE CITY OF DESERT HOT SPRINGS
AND
DALE R. MONDARY

This WAIVER AND RELEASE AGREEMENT, hereinafter the ?Agreement," is
entered into this 24%? day of May, 2019, by and between the City of Desert Hot Springs,
a municipal corporation located in the County of Riverside, State of California and
DALE R. MONDARY (?Employee") an individual, his representatives, successors in
interest and assigns, as a complete, ?nal and binding settlement of all claims and
potential claims, if any, with respect to their employment reiationship, with the City and
Employee together sometimes referred to as the ?Parties" and individually as ?Party."

RECITALS

WHEREAS, Employee commenced regular, full-time employment with the City
on or about June 22, 2015, as Chief of Police as an "at-will? employee, as set forth in his
Employment Agreement (?Employment Agreement?); and

WHEREAS, Employee was placed on paid administrative leave pending an
investigation; and

WHEREAS, Employee wishes to resign, effective as of 6:00 pm. on May 24, 2019
(?Resignation Date"); and

WHEREAS, in order to facilitate Employee?s desire to resign forthwith, the City and
Employee hereby enter into the following separation, release, and waiver agreement.

NOW THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration the receipt and adequacy of which is hereby acknowledged,
the Parties hereby agree as follows:

TERMS AND CONDITIONS OF AGREEMENT

a. RECITALS. The above Recitals are true and correct and are incorporated
herein by this reference.

5. SETTLEMENT PAYMENT AND CONSIDERATION

Upon the expiration of the revocation period, as described in Section 8.1,
City will pay to Employee the total sum of One Thousand One
Hundred Eight Two Dollars, and 2310!] lama) as consideration, to
be paid to Employee in twelve (12) equal installments, beginning
on ?rst regular City pay day following the date upon which this Agreement
becomes ?nal and binding. Said payment is in exchange for and expressly

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contingent on the following:

1.1.1

1.1.2

1.1.3

Employee?s employment will be terminated as of the date this
Agreement becomes ?nal and binding;

Employee agrees to cooperate with any and all governmental
agencies or their designated investigator(s). with any and all
investigations related to Employee?s conduct during Employee?s
employment, and/or the conduct of others about which Employee has
personal knowledge, which occurred during Employee?s employment
with City, excluding participation that would forfeit the Employee's
Fifth Amendment Right against self-incrimination as that Amendment
is currently understood and enforced;

Except for communication via the Public lnfonnation Officer of the
City through the City Manager's Of?ce, Employee agrees that during
the pendency of any governmental agency investigation as described
in section 1.1.2.1, Employee will not communicate any details of the
facts surrounding his resignation of employment, any allegations
made against him or the City. this Agreement, or any ongoing
investigation with any person, news media, or on any social media
account where Employee could be identi?ed. This clause in no way
attempts to prevent Employee from speaking to legal counsel or
family members about such details;

Employee agrees that the conditions contained in sections 1.1.2 and
1.1.3 of this Agreement are material tenns of this Agreement, and any
failure to cooperate with investigators pursuant to such investigation,
or communication with the news media or on social media regarding
the events and/or investigations into matters related to Employee's
conduct or the conduct of others about whom Employee has direct
knowledge, will constitute a material breach of this Agreement.
Quantifying the damages that the City would suffer as a resu3t of a
material breach of this part of the Agreement is impossible to
determine at the time this Agreement is entered into. Therefore, the
Parties agree to liquidated damages in the full amount of the
consideration paid by the City should Employee breach any of the
material terms contained in this section.

Employee acknowledges and agrees that City has made no representations
to him regarding the tax consequences of the monies received by him
pursuant to this Agreement. Employee agrees to pay federal and state
taxes, if any, which are required by law to be paid with respect to this
settlement. Employee further agrees to indemnify and hold City harmless
from any claims, demands, de?ciencies, levies, assessments, executions,
judgments or recoveries by any governmental entity against City for any

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amounts claimed due on account of this Agreement, and any costs,
expenses or damages sustained by City by reason of any such ciaims,
including any amounts paid by City as taxes, de?ciencies, levies,
assessments, ?nes, penalties, interest or otherwise.

i.3 The foregoing payment to Employee is made in full, ?nal, and complete
settlement of any and all claims and causes of action held by Employee
against City, including its current and former employees, agents, members,
owners, and af?liated entities. including, but not limited to, attorneys? fees
and/or expenses and costs which Employee or his attorneys may have
incurred.

2 NO PRECEDENT. This Agreement is in no way intended and Shall in no
way be construed, to restrict rights guaranteed to the City under local, state or federal law,
rule, policy or agreement or to establish a precedent' In this or any other matter, now or in
the future

3. NO ADMISSION OF LIABILITY. This Agreement shall not in any way be
construed as an admission by the City or Employee of any unlawful or wrongfui acts or
other liability whatsoever against each other or against any other person. The City and
Employee specifically disclaim any liability to, or wrongful acts against each other or
against any other person on the part of themselves, any related person or any related
predecessor corporation or its or their agents, representatives or successors in interest
and assigns.

4. EFFECTIVE DATE OF RESIGNATION. At the time of executing this
Agreement, Empioyee shall: submit to the City Manager his written resignation from
employment as Chief of Police for the City, with said written resignation being effective and
implemented at 6:00 pm. on May 24, 2019. The written resignation shall provide only as
follows, as set forth in Exhibit 

?Effecrive May 24, 2019 at 6:00 pm, I hereby voluntarily and irrevocably resign from
employment as Chief of Police for the City of Desert Hot Springs. Signed: (Employee)."

5. UNPAID EARNED AND ACCRUED SALARY AND BENEFITS. City shall
pay Employee any and all unpaid, earned and accrued salary and bene?ts owed to
Employee as of the Resignation Date less any deductions and withholdings required or
permitted by law in a final check on or before the close of the business day on May 29,
2019.

6. RESIGNATION BENEFITS. Employee understands and agrees that
Employee shall not be entitled to receive any bene?ts from the City aside from the
payment as provided in this Agreement.

7.. COBRA BENEFETS. Employee has the option at his own cost to continue
his heai'ih insurance under the Consolidated Omnibus Budget Reconciliation Act

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(COBRA) for eighteen (18) months following the Resignation Date, unless Employee
receives other health coverage prior to the expiration of this period in which case City's
obligations under this Section shall cease. City?s Human Resources Department will
coordinate the exchange of information as required by law for Employee to determine his
participation in COBRA.

3. RELEASE. Employee represents that he has not ?led any lawsuits,
complaints. claims, applications, or charges against City or any related person or
corporation or against any of its or their past or present of?cers, director, governing
bodies, employees, agents, predecessors, attorneys, division, af?liates,
representatives, successors in interest and assigns and/or all persons acting by,
through, under, or in concert with any of them, with any state or federal court, or local,
state or federal agency, or administrative or quasi-administrative tribunal or person,
based on any events occurring prior to the date of execution of this Agreement.

Employee specifically agrees that, in exchange for the consideration provided herein,
he shalt not in the future ?le, participate in, instigate, or encourage the ?ling of any
lawsuits. complaints, charges, or any other proceedings in any state or federal court or
before any local, state or federal agency, administrative tribunal, quasi?administrative
tribunal or person, regarding claims that City has violated any local, state or federal
laws, statutes, ordinances, or regulations, or claiming the City has engaged in any
tortious, other State, or other Federal based misconduct of any kind, based upon any
events occurring prior to the date of execution of this Agreement. Employee further
agrees that immediately upon executing this Agreement, he will withdraw in writing and
cause to be dismissed with prejudice in its entirety and any and all lawsuits, complaints,
charges, or claims against City regardless of whether they are speci?cally referred to
herein

In addition to the various general releases of liability and agreements to dismiss and/or
forego any lawsuits, complaints. charges, or claims against the City, Employee
understands and agrees that he is waiving any rights he has, may have had, or may
have, to pursue any and all remedies available to his/her under any employment-
related cause of action against the City, including but not limited to, and without
limitation, any claims for discrimination, harassment, and/or retaliation, claims under
the Ralph M. Brown Act (G'ov. Code, 54950, et seq.), the Fair Employment and
Housing Act (Gov. Code, 12900, et seq.), the California Family Rights Act (Gov.
Cooe, 12945.2), the Unruh and George Civil Right Acts (Civ. Code, 51, et seq.,
all provisions of the California Labor Code and any wage orders or similar directives or
authorities issued by any federal or state authority having enforcement powers, the
Constitution of the United States, the Constitution of the State of California, Title VII of
the Civii Rights Act of 1964 (42 U.S.C. 2000a et seq.), the Age Discrimination Act
in Empioyment Act (29 U.S.C. 621, et seq.), the Equal Pay Act (29 U.S.C. 206(d)),
the Fair Labor Standards Act (29 U.S.C. 201, et seq.), the Family and Medical Leave
Act (29 U.S.C. 2601, et seq.), the Employment Retirement Income Security Act of
1974 {29 U.S.C. 1001, et seq.), Sections 1981-88 of Title 42 of the United States
Code {48 U.S.C. 1981, et seq.), the Americans with Disabilities Act (42 U.S.C. 

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12101. et seq), claims of retaliation or whistle-blowing (including but not limited to
California Labor Code 1102.5, et seq. and Government Code 12653), claims for
breach of any type of contract, including written, oral, or implied, breach of any
covenant, promise or representation pertaining to Employee's employment, whether
expressed or implied, and all other claims arising in contract, tort, or equity or under
any other statute. federal, state, or local statute arising prior to the date of execution of
this Agreement, all of which are waived. It is speci?cally acknowledged by the Parties
to this Agreement, that the provisions of this Agreement are con?ned to the Parties
only and are intended to definitely resolve all disputes between the City and Employee
and perv-seen Employee and any and all present or former City employees and has no
evidentiary impact on administrative/civil proceedings that may be brought by the City
against present or former City employees.

This Agreement does not limit Employee's ability to bring an administrative charge with
an administrative agency, but Employee?s expressly waives and releases any right to
recover any type of personal relief from the City, including monetary damages or
reinstate ment, in any administrative action or proceeding, whether state or federal, and
whether brought by Employee's or on Employee?s behalf by an administrative agency,
related in any way to the matters released herein. Furthermore, nothing in this
Agreement prohibits Employee from reporting possible violations of law or regulation
to any government agency or entity, including but not limited to the Equal Employment
Opportunity Commission, the California Department of Fair Employment and Housing,
the Department of Labor and/or the Department of Justice, or making other disclosures
that are protected under the whistleblower provisions of law. Employee does not need
prior authorization of the City to make any such reports or disclosures and is not
required to notify the City that he has made such reports or disclosures.

8.1 In accordance with the federal Older Workers? Bene?t Protection Act of
1990. Employee acknowledges that he is aware of the following with respect to his
reiease of any claims under the federal Age Discrimination in Employment Act (ADEA):
(1) he has the right to consult with an attorney before signing this Agreement, and that
to the extent, if any, Employee has desired, he has done so; (2) Employee has twenty?
one (21) days to review and consider his release of any ADEA claims, and he may use
as much of this twenty-one (21) day period as he wishes prior to signing; (3) for a
period at seven (7) days following execution of this Agreement, Employee may revoke
his waiver of any ADEA claim and that waiver shall not become effective or enforceable
with respect to the claims under the ADEA until the revocation period has expired; (4)
this release and waiver will become effective as to any ADEA claim eight (8) days after
it is signed by Employee and City, and in the event the Parties do not sign on the same
date. then this Agreement shall become effective as to any ADEA claim eight (8) days
after the date it is signed by Employee. Thereafter, Employee understands that he
does not have any right to revoke his waiver of any claim under the ADEA and that it
will be binding upon Employee and City. In addition. it is agreed and understood
between the Parties that in the event Employee timely revokes his release/waiver of
any age discrimination claims. this Agreement shall have no force or effect and
Employee shall not have any right to receive any compensation or payment referred to

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hereir.

9. CODE SECTION 1542 WANER. Employee, on behalf of himself,
his assigns, successors, agents and representatives, understands and expressly
waives any and all rights and bene?ts conferred upon him by California Civil Code
Section 1542, including but not limited to those arising from and/or related to the
employment of Employee by the City and/or the resignation of Employee?s
employment with the City, whether or not heretofore brought before any state or federal
court or before any state or federal agency or other governmental entity, as well as
claims relating to any conduct or activity which occurs after the date of execution of
this Agreement, which reads as follows:

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
WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED 

This waiver shall be effective as a bar to any and all actions, fees, damages, losses,
claims. liabilities and demands of whatsoever character, nature and kind that are known
or unknown, or suspected or unsuspected. Employee further represents and warrants
that he understands this waiver and that if he does not understand this waiver, he shall
seek the advice of a qualified attorney before executing this Agreement.

Initials

?30. NO Employee agrees that he will not defame or
disparage the City or any of its of?oers, directors, employees, agents or services to any
third party, either oraliy or in writing, except as needed to cooperate with any
governmental investigation or legal proceeding. The City agrees that neither it, nor any of
its of?cers, directors, employees, agents or services to any third party, either orally or in
writing. except as needed to cooperate with any governmental investigation or legal
proceeding shall not defame or disparage the Employee during the course of the
invesugetion(s). Notwithstanding the above, the City and any of its officers, directors,
employees, agents or services to any third party, is expressly permitted and may orally or
in writing represent employment information and any of the facts and circumstances
surrounding Empioyee?s resignation and associated investigation(s) solely limited to any
potential employer.

'51. RETURN AND PRESERVATION OF CITY PROPERTY. Employee
represents that he has removed from his City office and any City vehicles all personal
items. materials and effects during the City's regular business hours and returned to
he City any and all of City's property in Employee's possession or control, including,
but not limited to, the City's records, documents, materials, computer disks, computers,

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mobiz?e cell phone devices, and pagers. Employee represents that he has not and further
shall not delete, eliminate, remove or destroy any information, data or other electronic
records, documents or materials stored on any computer, internet or electronic device
or unit owned by the City, and has notdone any of these acts sincethe Resignation Date.

12. CONFIDENTIALITY AND PUBLIC DISCLOSURE OF THIS
AGREEMENT. It is hereby agreed that the facts and terms of this Agreement are
confidentiai and will notbe disclosed publicly exceptas may be required by law. The parties
acknowledge that the City is a public entity and this Agreement and its terms may be a
pubiic record within the meaning of the California Public Records Act, and therefore the
City may be required to disclose the Agreement and/or its terms. The City agrees to notify
the employee in writing when any City investigation(s), over which the City has the sole
and absolute authority, has concluded. City does not have any responsibility to
Employee whatsoever to notify him as to the conclusion of any other investigation
conducted by any person or entity other than the City Failure to notify Employee of the
conclusmn of any investigation will not be considered a breach of this Agreement
whatsoever.

13. SEVERABILITY. If any clause, sentence, section or other provision of this
Agreement is, for whatever reason, deemed void, unlawful or otherwise unenforceable,
then such shall be severed and the balance of this Agreement construed as if the severed
language was not a part hereof. Employee agrees and understands that ifthis Agreement
is ever found to be invalid or unenforceable (in whole or in part) as to any particular type of
claim or charge or as to any particular circumstances, it shall remain fully valid and
enforceable as to all other claims, charges and circumstances. As to any actions,
ciaims. or charges that would not be released because of the revocation, invalidity, or
unem?orceability of this Agreement, Employee agrees to return any payments, with legal
interest, as a prerequisite to asserting or bringing any such claims, charges oractions.

hiO ADMISSION OF LIABILITY. The Parties agree that nothing in this
Agreement is or shall be construed as an admission by either Party of any breach of any
agreement or law or any intentional or unintentional wrongdoing of any nature. The
Parties agree and acknowledge that neither Employee nor the City has relied upon any
representations of each other except as set forth in this Agreement.

15. AND EXECUTION. The Parties represent that
they have relied upon the advice of their respective attorneys, who was/were the
attorneyis} of their own choice, concerning the legal and tax consequences of this
Agreement, that the terms of this Agreement have been completely read and explained
to them by their attorney(s), and that the terms of this Agreement are fully understood
and voluntarily accepteo by the Parties.

16. LAW. The Parties agree that this Agreement shall be
governed by and enforced in accordance with the laws of the State of California and all
disco?es regarding this Agreement shall be brought in the Superior Court of Riverside
County, California.

17. FEES AND COSTS. Each party shall bear its/hislher own costs,
expenses and attorneys? fees incurred in connection with the administrative and/or legal
proceedings resulting in this Agreement, or in connection with any other claims made or
investigated by either party against the other in any forum (civil, criminal, administrative or
quasi-administrative), and each of the parties hereto expressly waives any claim for recovery
of any such costs, expenses or attorneys' fees from the other party. Attorneys for all parties to
this Agreement do likewise expressly waive any claim for recovery of costs, expenses andlor
attorney?s fees from the party(ies) and/or from any source whatsoever. In the event that any
Party shall institute any action or proceeding against another Party to enforce the provisions of
this Agreement, the prevailing Party shall be entitled to recover her or its expenses, including
reasonable attorneys' fees, in addition to any other relief to which the Party is found entitled.

18. NO OTHER TERMS. This Agreement contains all of the terms and conditions
agreed upon by the parties hereto regarding the subject matter of this Agreement. Any prior
agreements, promises, negotiations, or representations, either oral or written, relating to the
subject matter of this Agreement, not expressly set forth in this Agreement. are of no force or
effect.

'39. SUCCESSORS AND ASSIGNS. This Agreement is binding upon, and
inures to the bene?t of, the parties and their respective successors and assigns.

20. OF THE AGREEMENT

203i Whenever the context requires, any gender includes all others, and
the singuiar number includes the plural, and vice-versa.

20.2 Any captions in this Agreement are inserted for convenience of
reference and do not define. describe. or limit the scope or intent of this Agreement or
any of its terms.

20.3 No inference, assumption, or presumption shalt be drawn from the
fact that a Party or her or its attorney prepared and/or drafted this Agreement.

20.4 Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable,
the legality, vaiidity, or enforceability of the remaining parts, terms, or provisions, shall
not be affected, and the illegal, unenforceable, or invalid part, term, or provision shall be
deemed not part of this Agreement.

21. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall the deemed to be an original.

OF PAGE INTENTIONALLY LEFT 

IN WITNESS WHEREOF, the Parties hereto have executed this Waiver and Release
Agreement.

NOTICE: BY EXECUTING THIS AGREEMENT, I, DALE R. MONDARY,
ACKNOWLEDGE THAT I HAVE READ THE FOREGOING AND UNDERSTAND,
APPROVE, AND VOLUNTARILY AGREE TO THE TERMS OF THE AGREEMENT
SINCE i AM BEING PROVIDED THE ADDITIONAL BENEFITS DESCRIBED IN THE
AGREEMENT TO WHICH I WOULD OTHERWISE NOT BE ENTITLED.

CITY OF DESERT HOT SPRINGS DALE R. MONDARY

5.2, mm,

S?cdtt iviateEEi?a?

ATTEST:

 

Jerryi Soriano, City Clerk

APPROVED AS TO FORM:
Jennifer A. Mizrahi, City Attorney

By:

Exhibit A
Notice of Resignation

Effective May 24. 2019 at 6:00 I hereby voluntarily and irrevocably resign from
employment as Chief of Police for the City of Desert Hot Springs.

5?30-2017

DALE R. MON DA . Date

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