SEPARATION Ai\D WAIYER AND RELEASE AGREEMENT

In consideration of the mutual covenants contained herein, as well as other good

and valuable consideration, the receipt and adequacy of which are hereby acknowledged,

Mark F. Pacholec ("Pacholec" or "Employee") and the Town of orchard park ("Town"),

wishing to resolve completely and fully any and all disagreements, disputes or claims

arising out of Pacholec's employment or Pacholec's separation from that employment with

the Town, enter into this Separation and Waiver and Release Agreement ("Agreement'),

and hereby agree as follows:

1. Employee hereby agrees that, effective May 3, 2019 at 5:00 p.m., his

employment with the Town shall terminate. Pacholec will continue to be on paid

administrative leave until his retirement upon the close of business (5:00 p.m.) on Apil29,
2019; however, it is understood that Pacholec shall make himself available during this

period for consultation and transition. Requests for assistance by the Town shall be made

through counsel. Pacholec will use available Personal Leave days from April 30, 2019

through May 3, 2019. Employee's execution of this Agreement shall constitute his
irrevocable written letter of retirement to the Town with the effective date of May 3,2019,

even if it is signed thereafter. It is understood and agreed that his position will be

terminated immediately at the close of business (5:00 PM) on May 3.20191' provided

however, that if this Agreement is executed and becomes fully effective as set forth herein,

the Town will reclassiff Pacholec's termination to a retirement and he shall be entitled to

the other benefits provided herein.

2. Following the execution of this Separation And Waiver And Release

Agreement ("Agreement") by all parties, and the occurrence of all other conditions set forth

22514040.v1
herein, this Agreement shall become fulIy effective and enforceable in accordance with its

terms, provided Pacholec does not revoke this Agreement.

3. In consideration of the foregoing and the terms of this Agreement, upon the

execution of this Agreement and following the expiration of the revocation period
(provided Pacholec does not revoke), the Town agrees to adopt the following additional

items of compensation in a formal Resolution on the record before April 17, 2019 for

purposes of qualiffing these payments for crediting by the retirement system:

a. To increase Pacholec's salary and holiday pay by twenty percent (20%)

above the current 2019 rate retroactive to January 1,2019 for hours paid in

2019 only.

b. To increase Pacholec's 2019 longevity by an additional $10,044 up to a

maximum of $12,500 effective January 1,2019.

c. To provide Pacholec an additional eighty (80) hours of compensatory time

retroactively efflective April l, 2019 (credited 20 hours per quarter to a

maximum of eighty (80) hours).

4. It is agreed and understood that any of Pacholec's accruals not creditable by

the retirement system shall be paid at Pacholec's rate of pay prior to the Apil 17, 2019

resolution set forth in paragraph "3".

5. In fuither consideration of the foregoing and the terms of this Agreement,

upon his retirement from the Town, the Town agrees to pay Pacholec the sum of one

hundred thousand and no/100 ($100,000) Dollars, less applicable withholdings and

deferred compensation that may be elected by Pacholec. The Town shall submit payment

to Pacholec in a payroll check within 30 days after the later of the ef[ective date of this
agreement or the expfuation of the revocation period, whichever is later.

6. Pacholec and his dependents shall have health insurance paid for by the

Town. Reference Article III, section 3.08 of the Town of Orchard Park Personnel Policy

Manual adopted by the Town on December 5, 2018, which states that the Chief of Police

will follow Article XII of the Command OfEcer Association Agreement, also referenced

in Town Board resolution dated August 21,2013 (copies of relevant sections are attached

hereto as EXHIBIT A). Pacholec will have the right to the use of unused sick -time upon

retirement as provided for by article IV, section 4.02 of the Town of Orchard Park Policy

Manual adopted by the Town on December 5,2018, Articles XV and XVI of the Command

Officers Association Agreement, and the Command Officers Association agreement to a

maximum accumulation of 2,160 hours or the maximum accumulation permitted under the

Command Officers Association Agreement, whichever is greater. The Town agrees to pay

Pacholec the value of his 2019 vacation time, which is 160.5 hours, within thirry days (30)

of the execution ofthis Agreement. Pacholec agrees and understands that his 2019 vacation

time shall be based upon his salary prior to the April 17, 2019 resolution set forth in

paragraph "3" ($156,879). The Town agrees to pay Pacholec the value of his remaining

compensatory time, which is 120 hours, within thirty days (30) of the execution of this

agreement. Pacholec agrees and understands that his 2019 compensatory time shall be

based upon his salary prior to the April 17, 2019 resolution set forth in paragraph "3"

($156,879). The Town agrees to pay Pacholec the value of his remaining sick time up to a

maximum of the amount permitted per Article XV of the Command Of[rcers Association

Agreement or 2,160 hours, whichever is greater, with the personal leave time already being

added in per the Command Officers Association Agreement (75 % is approximately 1,476
hours), within thirty (30) of the execution of this agreement, unless Pacholec elects to be

paid the value of the sick time over a t'wo (2) year period, per section l5-7 of the Command

Officers Association Agreement. Pacholec agrees and understands that his total sick and

personal time shall be based on his salary prior to the April 17 ,2019 resolution set forth in

paragraph "3" (S156,879). The Town agrees to allow Pacholec to pay for dental

insurance, at the Town rate, as is the common practice for retirees. The Town agrees to

issue a standard Police identification retirement card, and to allow Pacholec to participate

in annual HR 218 qualifications for retirees. Pacholec aclmowledges and agrees that he is

not entifled to receive any other or firrther compensation or benefits of any kind or

description from the Town or from or under any employee benefit plan sponsored by the

Town, except for any benefits to which Pacholec is or may become entitled under or from

any pension/retiremenVsavings plan or account available through his employment with the

Town.

7. Pacholec acknowledges and agrees that the Town's payments to Pacholec

the sums outlined in paragraphs "3" and "5", and other promises entered into herein, are

in exchange for this Agreement, his waiver and release of claims, and the other covenants

and promises set forth herein. Pacholec agrees he is not otherwise entitled to receive such

benefits.

8. Pacholec shall not be entitled to any other or further compensation or

benefits which the Town may pay, except as provided in paragraph 6, or make available to

its employees following the execution ofthis Agreement. Pacholec hereby waives any and

all rights he has under the Civil Service Law or any applicable law to contest any action by

the Town concerning Employee prior to his retiremenl, including his separation from
employment with the Town.

9. In consideration of this settlement, including the promises described above

and other promises herein, Pacholec does hereby firlly and forever discharge and release

the Town, its Supervisor, Town Board, individual Town Board members, officers,

employees, agents, attorneys, successors and assigns and each and all of the foregoing

(collectively referred to in this Agreement as "Releasees"), individually and collectively,

from any and all claims, demands, causes of action, damages, complaints, expenses, costs

and compensation of any nature whatsoever (collectively "claims") that Pacholec now has

or may have, or that any person or entity may have on Pacholec's behalf, on account of or

arising out of any matter or thing which happened, developed or occurred prior to
Pacholec's signing of this Agreement, including, without limitation and by way of example

only, all matters pertaining to Pacholec's employment with the Town, Pacholec's

separation and/or retirement from service with the Town, and Pacholec's other
relationships and dealings with the Town and the Releasees. Pacholec hereby waives any

and all such claims that he has or might have against the Town and/or any of the other

Releasees. This release, discharge and waiver includes, but is not limited to, any and all

claims arising out of or under the following:

i) The Federal Age Discrimination in Employment Act of

1967, as amended, which, Ermong other things, prohibits discrimination in employment on

account of a person's age.

ii) The Federal Title VII of the Civil fughts Act of 1964, as

amended, which, among other things, prohibits discrimination in employment on account

of a person's race, color, religion, sex, or national origin.

 ii| 42 U.S.C. $1981, as arnended, which, among other things,

prohibits certain race discrimination.

iv) The Federal Equal Pay Act of 1963, as amended, which,

among other things, prohibits, under certain circumstances, discrimination in pay on the

basis of sex.

v) The Federal Employee Retirement lncome Security Act of

1974, as amended, which, among other things, regulates pension and welfare plans and,

which, among other things, prohibits interference with individual rights protected under

the statute.

vi) The Americans with Disabilities Act, as amended, which,

among other things, prohibits discrimination relating to employment on account of a

person's handicap or disability.

vii) Executive Order 11246 (applicable to Federal Government

contractors and subcontractors), which, Exnong other things, requires affirmative action for

and prohibits discrimination against individuals by reason of race and sex.

viii) The Vietnam-Era Veterans' Readjustrnent Assistance Act of

1974, as amended (applicable to Federal Government contractors and subcontractors),

which, among other things, requires affirmative action for and prohibits discrimination

against individuals by reason of their status as a veteran or a disabled veteran.

ix) The Rehabilitation Act of 1973, x amended (applicable to

Federal Government contractors and subcontactors), which, among other things, requires

affirmative action for and prohibits discrimination against individuals by reason of

handicap or disability.
 x) The Uniformed Services Employment and Reemployment

Rights Act of 1994, as amended, which, among other things, prohibits discrimination on

account of a person's service in the uniformed services of the United States or any state.

xi) The National Labor Relations Act, as amended, which,

Elmong other things, prohibits discrimination against an employee for engaging in

concerted activities.

xii) The New York State Human Rights Law, as amended,

which, among other things, prohibits discrimination in employment on account of a

person's race, color, religious creed (including religious dress and grooming practices),

national origin (including language use restictions), ethnicity, ancestry, disability (mental

and physical) including HIV and AIDS, citizenship status, veteran status, sex (which

includes pregnancy, childbirth, breastfeeding and medical conditions relating to those),

age, sexual orientation, gender (including gender identity or gender expression), marital

status, medical condition, genetic information, status as a victim of domestic violence,

stalking or sexual assault, farnilial status, criminal history status, relationship or

association with members of a protected class, or any other characteristic protected under

applicable law.

xiii) Section 194 of the New York State Labor Law, as amendedo

which, among other things, prohibits, under certain circumstances, discrimination in pay

on the basis of sex.

xiv) Section 201-d of the New York State Labor Law, as

amended, which, among other things, prohibits discrimination on account of a person's

political activities outside of working hours, a person's legal use of consumable products,

an individual's legal recreational activities outside of working hours and an individual's

membership in a labor organization or exercise of rights under the National Labor Relations

Act, as amended.

xv) Section 740 of the New York State Labor Law, as amended,

which, among other things, prohibits retaliatory action against an employee because of

whistle-blower activity.

xvi) Sections 120 and 241 of the New York State Workers'
Compensation Law, as amended, which, among other things, prohibit discrimination on

account of a person having filed or attempted to file a claim for Workers' Compensation

or disability benefits or for having testified at a hearing held under the Workers'
Compensation Law.

xvii) Sections 75 and 76 ofthe New York State Civil Service Law,

which provides a procedure for the removal of competitive class employees as well as

certain rights to a person to notice of charges and a hearing.

xviii) Section 155 of the New York State Town Law, which

provides a procedure for the removal of competitive class employees as well as certain

rights to a person to notice of charges and a hearing.

xix) The Orchard Park Town Code.

xx) Any Federal, State or local law or rule, regulation, executive

order or guideline, including, but not limited to, those laws specifically described above.

xxi) All constitutional violations (including but not limited to

those that could be asserted under 42 U.S.C. $ 1983 or the New York State constitution),
defamation, wrongful discharge, attorney fees, costs, breach of contract, breach of implied

contract, negligence of any kind, including, but not limited to, negligent performance of
contractual obligations, breach of the covenant of good faith and fair dealing, tortious
interference with business and/or contractual relationship (or prospective relationship),

violation of the penal statutes, retaliatory discharge, whistleblower's claims, estoppel of

any kind, loss of consortium, exemplary damages, negligent and/or intentional infliction of
mental or emotional distress, discrimination, harassment and/or retaliation or wrongful

action which has been or could have been alleged under the common law, any civil rights

or equal opportunity employment law, or any other statute, regulation, ordinance or rule.

xxii) Any oral or written contract of employment with the Town

and/or other Releasees, express or implied, or any oral or written agreement, express or

implied, purporting to establish terms and conditions of employment or addressing

termination of employment.
10. Pacholec specifically understands and agrees that his separation from Town

employment does not violate or disregard any oral or written promise or agreement, of any

nature whatsoever, express or implied. If any contract or agreement of employment exists

concerning the employment of Pacholec by the Town and/or other Releasees, or the terms

and conditions of such employment or the termination of such employment, whether oral

or written, express or implied, that contract or agreement is hereby terminated and is null

and void.

11. This release includes, but is not limited to, a waiver, discharge and release

by Pacholec of the Town and other Releasees from any damages or relief of whatever

nature or description, including, but not limited to, compensatory, liquidated, and punitive

damages and equitable forms of relief, as well as any claim for attomeys fees or costs,

which may arise from any of the claims waived, discharged or released.

12. Pacholec agrees that this Complete Release may be enforced in any court,

federal, state or local, and before any administrative agency or body, federal, state or local
or in arbitration.

13. It is understood and agreed that this waiver and release does not apply to an

obligation that the Town may be required to provide to Pacholec under Section l8 of the
New York Public Officers Law ("POL"). The Town's obligation will arise only to the

extent that POL Section 18 is applicable and only where the Town is legally obligated to

provide benefits set forth in POL Section 18.

14. Pacholec agrees that if he violates any of the terms of this Agreement, he

shall be liable to the Town for any and all sums of money as well as the costs and fees

incurred by the Town in enforcing its rights in this Agreement, including attorney's fees,

in addition to any other remedy that the Town may have in law or in equity. The Town's

enforcement of its rights under this Section will not affect the validity and enforceability

of the release, discharge and waiver contained in this Agreement.

15. Pacholec agrees that he shall not disparage, harass, or threaten or causie

another to disparage, harass, or tlreaten, orally, in writing, directly or by inference, or on

any social media, or through text message, the Town, its Supervisor, Town Board, Town

Board Members, the Police Department, Department Heads, employees, agents, attorneys,

or services. If the Town believes that this provision, or other term of this Agteement, has

been violated, as a condition precedent to bring suit the Town shall immediately notiff

Pacholec in writing, and with specificity set forth the content and source of the claimed

violation of this Agreement. The parties shall thereupon discuss in good faith whether the

alleged violation actually occurred and can be remedied short of litigation.

16. The Town, its Supervisor, Town Board, Town Board Members, Department

Heads, employees, agents, and/or attorneys agree that it shall not disparage, harass or

10
threaten Pacholec orally, in writing, or on any social media, or through text message.

17. Pacholec agrees that his separation from employment with the Town and

his position at the Police Department shall be final, and he shall not apply for, nor is he

eligible for, employment with the Town at any time in the future, other than elected office.

Pacholec acknowledges that he has no interest in future employment with the Town.

18. The Town agrees to issue the following statement with respect to

Pacholec's retirement from employment with the Town:

The Town accepts retirement of Chief Mark Pacholec with greatregret. The
Town appreciates Chief Pacholec's over 22 years of service and dedication
to the Orchard Park Police Departrnent. He has been a hard worker,
conscientious, dedicated, and strong leader. We wish him and his fa:rrily
well in future endeavors.

19. Pacholec agrees to issue the following statement with respect to his
retirement:

I would like to thank the Town of Orchard Park for allowing me to serve
our community, which I am very proud of. After having served in the United
States Marine Corps for 26 years, the Orchard Park Police Departrnent was
another way to serve and protect the community that I chose to raise my
family in. The time has come now to pursue future endeavors. My family
and I wish the Town and the Departrnent great success going forward.

20. Pacholec agrees and promises that he shall stay away from and not enter the

Town administrative ofEces or any other Town property, except on official business as a

Town resident or otherwise. Pacholec understands and agrees that this paragraph is an

essential part of this Agreement. In the event Pacholec violates this paragraph, the Town

shall be entitled to a1l relief permitted in this Agreement and/or under the law.

21. To the extent such terms are not otherwise required to be made available

to the public pursuant to law or in accordance with legal process, the Town and Pacholec

11
agree to keep the terms and the existence of this Agreement completely confidential and

shall not disclose any information concerning the existence or terms of this Agreement or

provide a copy of this Agreement to anyone except the United States lnternal Revenue

Service, the New York State Ta,x Commission, the United States Equal Employment

Opportunity Commission, the New York State Division of Human Rights, a Court, an

unemployment insurance authority (for all the above, if legally compelled to do so), or a
party's attorney, accountant, or other professional advisor to whom disclosure must be

made in order for them to render professional services, or to Pacholec's lawful spouse or

partner. Prior to disclosing any such information to any third party, Pacholec shall advise

such person that the terms of this Agreement are confidential and that unauthorized
disclosure ofthe terms of the Agreement will subject such person to suit by the Town. The

parties agree to notiff all other parties in writing within five (5) business days of receipt of
any subpoena seeking to discover a copy of this Agreement and will permit such other

party, alone or through its designated representative, to review and investigate and, if
necessary, quash such subpoena prior to compliance. In the event an inquiring prospective

employer shall enquire regarding his employment with the Town, the Town's Personal

Department shall provide only Pacholec's position, date of hire and date of separation from

employment with the Town. If asked for further inforrration about Pacholec's

employment, the Personnel Department shall advise that he/she is only able to provide the

foregoing information. The parties fi.uther agree that they will make no public

announcement regarding this Agreement or regarding Pacholec's retirement, except that

which is described in paragraphs 18 and 19. The town, its agents, and employees will

state to retirement, when asked, either verbally, or in writing, that all the items listed in

t2
para$aph three (3), salary, holiday pay, longevity pay, and compensatory time pay, are

part of Pacholec's negotiated 2018 and 2019 compensation.

22. As of the date ofthis Agreement, Pacholec agrees that he has not sustained any

disabling personal inj,rry and/or occupational disease which has resulted in a loss of wage

earning capacity during his employment with the Town or due to the separation from that

employment and that he has no personal injury and/or occupational disease which has been

contributed to, or aggravated or accelerated in a significant manner by his employment

with the Town and/or the separation from that employment. The Town acknowledges that

Pacholec has submitted paperwork related to previous on the job injuries and exposures,

and to the extent that there is any Workers Compensation Claims for the same, Pacholec

is not waiving such claims.

23. Pacholec agrees to return to the Town any remaining Town-related

information, including all files, paperwork, equipment, communication devices, uniforms,

and any other Town materials that have been kept off site prior to the close of business

(5:00 PM) on April 17,2019.

24, Neither the Town nor Pacholec, by signing this Agreement, make any

admission of fault or liability in any fashion.

25. Pacholec represents and warrants that the Town has encouraged and advised

Pacholec in writing, prior to signing this Agreement, to consult with an attorney of

Pacholec's choosing concerning all of the terms of this Agreement.

26. Pacholec represents and warants that: (i) he has carefully read each and

every provision of this Agreement; (ii) he has consulted with counsel regarding the same;

(iii) he fully understands all of the terms and conditions of this Agreement; and, (iv) he

13
enters into this Agleement voluntarily of his own free will.

27. Pacholec understands that Pacholec has up to twenty-one (21) days from

April 1,2019, the date the Agreement was delivered to Pacholec's attorney, to consider

its terms, sign it and return it to the Employer. Pacholec agrees that any changes made to

this Agreement, whether material or immaterial, do not restart the running of the twenty-

one (21) day period. During this twenty-one (21) day period and before signing below,

Pacholec is advised to consult with his attorney, should Pacholec so desire, regarding the

terms of this Agreement, at Pacholec's own expense. The terms of the offer contained in

this Agreement will expire at the conclusion of the twenty-one (21) day period, if not

accepted during that period of time. Pacholec may sign the Agreement prior to the

conclusion of the twenty-one (21) day period. If Pacholec elects to do so, Pacholec

acknowledges that Pacholec has done so voluntarily. Pacholec's signature below indicates

that Pacholec is entering into this Agreement freely, knowingly and voluntarily, with a full

understanding of its terms.

28. This Agreement may be revoked by Pacholec within seven (7) days after

the date this Agreement is signed by Pacholec by delivering written notice ofhis revocation

to John Bailey, Esq., Town Attorney. This Agreement shall not become effective or

enforceable until the revocation period has expired. None of the agreements/payments

described in this Agreement, including the decision to forgo instituting disciplinary action,

shall be made or provided unless Pacholec signs this Agreement and does not revoke this

Agreement within the revocation period.

29, Whenever possible, each provision of this Agreement shall be interpreted

in such manner as to be effective and valid under applicable Federal law and the laws of

l4
New York State; however, if any provision of this Agreement is held to be prohibited by

or invalid under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such provision or the

remaining provisions of this Agreement.

30. This Agreement when executed and upon expiration of the revocation

period without Pacholec revoking his assent to this Agreement, constitutes the entire

agreement between the parties and supersedes and replaces any and all prior agreements

between Pacholec and the Town. This Agreement may not be amended or modified except

by a writing signed by both Pacholec and the Town.

PACHOLEC TIEREBY EXPRESSLY WARRANTS AND REPRESENTS THAT,

BEFORE ENTERING INTO TIIIS AGREEMENT, IIE HAS RECETVED A
REASONABLE PERIOD OF TIME WITIIIN WHICH TO CONSIDER ALL OF
THE PROYISIONS CONTAINED IN THIS AGREEMENT, THAT HE IIAS
FTJLLY REAI), INT'ORMED HIMSELF OF AI[D T]IYDERSTANDS ALL THE
TERMS, CONTENTS, COI\DITIONS AND EFFECTS OF ALL PROVISIONS OF
TIIIS AGREEMENT, AI\ID TIIAT ITE CONSIDERS ALL SUCH PROVISIONS TO
BE SATISFACTORY.

PACHOLEC AI{D TIIE TOWN F'T]RTIIER DPRESSLY WARRANT ANID

REPRESENT THAT NO PROMISE OR REPRESENTATION OF AI\'Y KIND HAS
BEEN MADE, EXCEPT THOSE EXPRE,SSLY STATED IN THIS AGREEMENT.

PACHOLEC FURTHER EXPRESSLY WARRANTS AI\D REPRESENTS TIIAT

HE ENTERS INTO THIS AGREEMENT IOIOWINGLY AND VOLUIITARILY.

FOR THE TOWN

Dated: &g"\ ll ,Zo l?

15
 FOR MARK PACHOLEC

Dated: ,l
----7---7 ,
Mark Pacholec

STATE OF NEW YORK )

coLrNTY OF ERrE ) SS.:

On this 16th day of April, 2019, before me personally appeared Mark Pacholec, to me
known, and known to me to be the same person described in and who executed the
foregoing instument, and he acknowledged to me that she

Notary Public
State ofNew York

l5