HomeMy WebLinkAbout2016-03-02 PACKET 04.D. REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA
MEETING ITEM # ��
DATE 3/2/16 •
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PREPARED BY: Administration Charlene Stevens
ORIGINATING DEPARTMENT DEPARTMENT HEAD
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COUNCIL ACTION REQUEST:
Consider entering into a separation agreement with Golf Course Manager, Bruce Anderson.
STAFF RECOMMENDATION:
Approve the agreement as drafted.
BUDGET IMPLICATION:
BUDGETED AMOUNT ACTUAL AMOUNT
ADVISORY COMMISSION ACTION:
DATE REVIEWED APPROVED DENIED
❑ PLANNING ❑ ❑ ❑
❑ PUBLIC SAFETY ❑ ❑ ❑
❑ PUBLIC WORKS ❑ ❑ ❑
❑ PARKS AND RECREATION ❑ ❑ ❑
❑ HUMAN SERVICES/RIGHTS ❑ ❑ ❑
❑ ECONOMIC DEV. AUTHORITY ❑ ❑ ❑
❑ ❑ ❑ ❑
SUPPORTING DOCUMENTS:
❑ MEMO/LETTER:
❑ RESOLUTION:
❑ ORDINANCE:
❑ ENGINEERING RECOMMENDATION:
❑ LEGAL RECOMMENDATION:
� OTHER: Agreement
ADMINISTRATORS COMMENTS: �
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H:1Strategic Planning\council-action.doc
AGREEMENT, WAIV�R AND RELEASE
This Agreement, Waiver and Release (hereinafter "AgreemenY') is made and entered into
this 2"a day of March, 2016, by and between Bruce Anderson (hereinafter "Employee") and the
City of Cottage Grove(hereinafter"Employer").
WHEREAS, Employee has been employed by Employer since March 12, 1991; and
WIIEREAS, Employee and Employer mutually desire to set forth the terms and
conditions under which Employee ends his empioyment with the City;
NOW, THEREFORE, in considerafion of the mutual promises and covenants established
in this Agreement,the parties agree as foilows:
l. Se arn ation. Employee hereby acknowledges and confirms he is separating his
employment from Employer with his last day of in-office work to be March 18, 2016,
subject to modification pursuant to Section 2C.
2. Benefits. Employer agrees to provide the following benefits to Employee subject to the
rescission provisions of Sections 5 and 6:
A. Severance Pav and Personal Leave. Employee will be entitled to benefits that
Employee has earned under the Empioyer's Personnel Policy, including:
i. Authorized paid personal lea�e benefits (288 hours), payments for which
will be made twice each month at the same times that compensation is
paid to other employees. Such paid personal leave shall be paid beginning
March 21, 2016 through pay period May 9, 2016, with the last payment
being made on May 26, 2016, at which time a11 paid personal leave should
be exhausted. Employee will not accrue personal leave benefits during this
period; and
ii. Twenty-four weeks compensation (960 hours) at Employee's established
rate, less applicable payroll deductions, with payments beginning May 10,
2016 ("Severance Period"). Severance payments will be made twice each
month at the same times that compensation is paid to other employees.
However, the Employer will not contribute to PERA for any part of the
Severance benefit paid to Employee. At the conclusion of the Severance
Period (October 24, 2016), Employee shall no longer be considered an
employee of the City.
B. Health Insurance. Employee will continue to be covered by the Employer's
benefits plan unril the end of the Severance Period. Thereafter, Employee
understands that the Health Benefits Continuation Plan allows Employee to
continue health and dental benefits for a period of 18 months from the last
date of employment and that coverage can commence on the first day after
Employee's regular group health and dental benefits end. After the last date
of employment, health and dental benefits may be continued at Employee's
own cost. A notice will be sent regarding Employee's right to continue health
and dental benefits under State and Federal law.
C. In consideration of the above benefits granted to the Employee, Employee
agrees to continue to perform his duties as Golf Manager in good faith and in
the ordinary course of business until March 18, 2016. Employer agrees to
allow Employee to perform his dufies without interference ar interruption
until March 18,2016,unless the parties mutually agree to some other date.
D. Disclosures. The parties agree that Employer will disclose information about
Employee's employment with the Employer in accardance with, and only to
the extent allowed by, the provisions of the Minnesota Government Data
Practices Act governing"personnel data."
Employee understand that he will receive the benefits set forth in this Section 2
only if he signs this Agreement and does not rescind it within the fifteen (15) days
rescission period provided for in Section 5.
3. Release of Claims. Employee, on behalf of himself and his heirs,
representatives, executars, administrators, successors, agents, and assigns, knowingly,
voluntarily, and unconditionally releases and forever discharges the City, its present,
future, or former elected ofFicials, Council members, managers, attorneys,
representatives, officers, agents, employees, consultants, insurers (including the League
of Minnesota Cities Insurance Trust), successars, assigns, employee welfare benefit plans
and pension ar deferred compensation plans, and their trustees, administrators and other
fiduciaries, and a11 persons acting by, through, under, or in concert with them, ar any of
them ("Released Parkies"), both individually and collectively, from any and all rights,
ciaims, demands, controversies, attomeys' fees, liabilities, actions, causes of action,
damages, losses, costs, expenses and compensation, of any nature, known or unknown,
asserted or unasserted, fixed ar contingent ("Claims"), which Employee may have, ever
haue had, ar in the future may have against the Released Parties by reason of any matter,
cause, or thing whatsoever, from the beginning of time to the date hereof, including but
not limited to any Claims arising out of, based upon, or relating to Employee's
recruitment, hire, employment, benefits, compensation, remuneration, or separation by
the City, or any contract, agreement, or compensation arrangement between Employee
and the Released Parties, or any of them. Employee hereby agrees that the Release set
forth in this Paragraph 3 is a general release, and Employee waives and assumes the risk
of any and a11 claims for damages which exist as of this date but of which he does not
know whether through ignorance, error, oversight, negligence, or otherwise, and which, if
known, would materially affect his decision to enter this Agreement. "Claims" do not
include, if applicable: (i) unemployment insurance benefits; (ii) workers' compensation
benefits to the extent that such benefits are awarded by a state agency or agreed upon
consistent with applicable state law; (iii) vested post-ternunation benefits under any
employee benefit plan; (iv) rights and benefits under the Consolidated Omnibus
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Reconciliation Act of 1985, as amended, (COBRA); (v) the right to enforce the terms of
this Agreement (vi) any right to defense, indemnification ar contribution, whether
pursuant to the Released Parties' bylaws, contract, applicable law or otherwise for claims
brought against Employee in Employee's capacity as an employee or agent of City; (vii)
rights under the Uniformed Services Employment and Reemployment Rights Act
(USEItRA) 38 U.S.C. § 4301, et seq.; (viii) the right to assert claims that are based on
events occurring after this Agreement becomes effective, and (ix) any other rights which
cannot be waived or released under applicable law. In exchange for his agreement to
release these Claims, Employee is receiving satisfactory consideration (compensation)
from the City to which he is not otherwise entitled by law, contract, or under any City
policy. The consideration Employee is receiving is a full and fair payment for the release
of all Claims. The City does not owe Employee anything in addition to what Employee
shall be receiving.
The Clauns released by this Agreement specifically include, but are not limited to, the
following:
(a) any and all claims relating to Employee's hiring, terms and conditions of
employment, termination, compensation, and benefits of any kind that Employee
did receive or could have received in connection with his employment with the
City;
(b) any and all claims relating to any conduct ar statements by any of the Released
Parties;
(c) any and all claims for violation of any federal, state or local Constitutions, laws,
statutes, ordinances,policies,rules or regulations;
(d) any and all claims for violation of any of the following statutes:
(1) The Minnesota Human Rights Act,Minn. Stat. Chap. 363A;
(2) Any provision of Minn. Stat. Chapter 181: Employment, including the
Minnesota Whistleblower Act;
(3) The Minnesota Government Data Practices Act,Minn. Sat. Chap. 13;
(4) The Veterans Preference Act,Minn. Stat. §197.46;
(5) Any act that provides workers' compensation benefits, including Workers
Compensation Act,Minn. Stat. Chap. 176;
(6) Retaliation claims under Minn. Stat. §176.82;
(7) The Public Employment Labor Relations Act, Minn. Stat. §§179AA1 -
.30;
(8) The Occupational Safety and Health Act,29 U.S.C. §651, et seq.;
(9) The Minnesota Occupational Safety and Heakh Act, Minn. Stat. §182.65,
et seq.;
(10) The Civil Rights Act, 42 U.S.C. §§1981 - 1988;
(11) The Fair Labor and Standards Act, 29 U.S.C. §201, et seq.
(12) The Fair Labor and Standards Act,Minn. Stat. §§177.21 - 177.35;
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(13) The Age Discrimination in Employment Act, 29 U.S.C. §621, et seq.,
including, without limitation, the Older Warkers Benefit Protection Act,
29 U.S.C. §623;
(14) The Americans with Disabilities Act, 42 U.S.C. §12101, et seq.;
(15) The Rehabilitation Act of 1973,29 U.S.C. §701, et seq.;
(16) The Family and Medical Leave Act,29 U.S.C. §2601, et seq.;
(17) The Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq.;
(18) Title VII of Civil Rights Act, 42 U.S.C. § 2000e, et seq.;
(19) The National Labor Relations Act, 29 U.S.C.§151, et seq.
(20) The Equal Pay Act, 29 U.S.C., §206(d);
(21) The Immigration and Reform Control Act, 8 U.S.C. §§1324a- 1324b;
(22) The Warker Adjustment and Retraining Notificaflon Act (WARN), 29
U.S.C. §2101, etseq.;
(23) Any other federal statute that provides protections of any kind to
employees;
(24) Any amendments to any of the laws referenced in this subparagraph (d);
(25) Any and all claims under any other federal, state, city or local human
rights, civil rights,wage-hour,wage-payment,pension, employee benefits,
City's Personnel Policy, veteran's preference rights, labor, or other
statutes, laws, rules, regulations, guidelines, constitutions, ardinances,
public policy, and any and a11 common law or non-statutory claims,
whether based in law or equity, and whether based upon tort or contract
law, including, but not limited to: breach of contract; fraud or
misrepresentation; negligent representation; promissory estoppel;
severance; back pay; attorney's fees, expenses or costs; defamation
(including both libel and slander); negligence; retaliation; pain, suffering,
mental anguish, intentionaUreckless/negligent inflicrion of emotional
distress; negligent hiring, supervision, or retention; breach of the covenant
of good faith and fair dealing; breach of a right of privacy; breach of
fiduciary duty; conversion; false imprisonment; assault; battery; unjust
enrichment; interference with contractual or other relations; interference
with prospective business advantage;whistle-blowing claims; employment
discrimination; sexual ar other harassment; wrongful termination; breach
of public policy; constructive discharge; and/or any other common law
claims, based upon any conduct occurring up to and including the date of
the complete execution of this Agreement and/or the date of Employee's
retirement from the City.
Employee further understands and agrees that by releasing the Released Parties from the
claims described in subparagraphs (a) through (d) above, he is giving up any and all rights to
seek damages of any kind from any or all of the Released Parties for any conduct predaUng his
execufion of this Agreement, including, without limitation, compensatory damages, incidental
damages, consequentiai damages, exemplary or punitive damages, attorneys' fees, costs and
disbursements. Similarly, Employee understands that by releasing the Released Parties from the
claims described above, he is giving up his rights to seek any type of injunctive and/or
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declaratory relief from any or ali of the Released Parties for any cause of action predating his
execution of this Agreement.
4. Consideration Period. Employee understands and acknowledges that he may take up to
twenty-one (21) days from the date he receives this Agreement to consider it and seek
counsel to advise him regarding the terms. Employee acknowledges that he received this
Agreement on February 18, 2016, and that the twenty-one (21) days shall run from that
date. Employee represents that if he signs this Agreement befare the expiration of the 21-
day period, it is because he has decided that he does not need any additional time to
consider whether he wishes to release any potential claims.
5. Right to Rescind Bv Emplovee. Employee understands and acknowledges that he has the
right to rescind or revoke his release of any claims he may have under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., if done within
seven (7) calendar days from the date he signs this Agreement. Employee understands
and acknowledges that he has the right to rescind or revoke his release of any claims he
may have under the Minnesota Human Rights Act ("MIIRA"), Minn. Stat. Chap. 363, if
done within fifteen (15) calendar days from the date he signs this Agreement.
This Agreement shall not become effective unril the rescission or revocation period has expired.
Employee understands that in the event he rescinds this Agreement, the City shail have no
obligation whatsoever under this Agreement and the Agreement will be rendered null and void.
To be effective, the rescission or revocation must be in writing and hand-delivered or mailed to
Charlene Stevens, City Administrator, City of Cottage Grove, 12800 Ravine Parkway South,
Cottage Grove, Minnesota 55016, within the 15-day period. If mailed, the rescission or
revocation must be postmarked within the 15-day period, properly addressed as set forth in the
preceding sentence and sent by Certified Mail, Return Receipt Requested. If delivered by hand,
it must be given to Charlene Stevens,within the 15-day period.
6. Right to Rescind By Cit� Pursuant to Minnesota Statute § 465.722, the City shall have
fifteen(15)days after February 18, 2016, to rescind this Agreement. If the City so
rescinds, the rescission must be in writing and hand-delivered or mailed to Employee at
9484 — 71S` Bay South, Cottage Grove, MN 55016, within the 15-day period. If mailed,
the rescission must be postmarked within the 15-day period, properly addressed as set
forth in the preceding sentence and sent by Certified Mail, Return Receipt Requested. If
delivered by hand, it must be given to Employee within the 15-day period. This
Agreement shall not become effective until the rescission period has expired.
7. Conseauences of Rescission. Employee agrees, understands, and acknowledges that the
City's obligations to him, as set forth in this Agreement, shall be unenforceable uxiless
and until the rescission periods with regard to Paragraphs 5 and 6 have expired, and the
parties have not rescinded or revoked this Agreement in any part.
8. Recommendafion to Retain Counsel. Employee acknowledges that the City
recommended that he retain counsel in connection with the negotiations relating to, and
his execution of, this Agreement. Employee specifically acknowledges that the City's
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obligarions to recommend that he retain counsel, as required by the ADEA and/or the
MI1RA,have been fulfilled.
9. Records, Documents and Propertv. Employee will return to the City all its records,
correspondence and documents as well as all keys and equipment in his possession on
March 18,2016, unless modified pursuant to Section 2C.
10. Knowin� and Voluntary Waiver of Unknown Claims. Employee understands that this
Agreement extends to all claims which the Employee does not know or suspect to exist at
the time of executing this Agreement. By executing this Agreement, Employee intends
to, and hereby does, release Released Parties from claims which he does not presently
know or suspect to exist at this time.
11. No Lawsuits. Employee represents that there are no lawsuits initiated or pending by him
against the Released Parties.
12.No Claims Exist. Employee confirmS that he has no known workplace injuries and that
he has received all benefits and leaves to which he has been entitled. Employee
acknowledges and confirms that he has reported all hours warked and has been paid in
full far all hours worked.
13. Non-Admission of Liabilitv. The parties understand and agree that neither the
agreements set forth herein nar the execution of this Agreement shall constitute or be
conshued as an admission of any liability, wrongdoing, or violation of any law or
regulation by the City, or an admission of the existence of the facts upon which liability,
wrongdoing, or violation of law or regulation could be based. The parties acknowledge
and agree that they wili end the employment relationship in a mutually respectful manner,
without making acrunonious statements or disparaging comments about the other.
14. Data Pracrices Act. The parties agree that this Agreement is a public document under the
Minnesota Government Data Practices Act and will not be protected as private,
confidential, or non-public information. This Agreement will be treated as public data
within the meaning of the Minnesota Government Data Practices Act, Minnesota Statutes
Chapter 13.
15. Complete Agreement. The parkies aclaiowledge and represent that no promise or
representation not contained in this Agreement has been made to them, and acknowledge
and represent that this Agreement contains the entire understanding between the parkies
and contains all terms and conditions pertaining to the settlement of the parkies' disputes.
This Agreement supersedes all previous agreements, whether oral or written, between
Employee and the City.
16. Knowing and Voluntarv Execution. Employee acknowledges that he has read this
Agreement, that he fully understands his rights, privileges, and duties hereunder, and that
he enters into the Agreement freely and voluntarily. Employee further acknowledges that
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he has had an opporiunity to consult with an attorney of his choice to explain the terms of
this Agreement and the consequences of signing it.
17. Counterparts. This Agreement may be signed simultaneously in two or mare
counterparts, each of which will be deemed the original, but ail of which together will
constitute one and the same document.
18. Severability Clause. In the event that any provision of this Agreement shall be held void
or unenforceable by a court of competent jurisdiction wluch is affirmed on appeal, said
judgment sha11 not affect, impair, or invalidate the remainder of this Agreement unless
the provision declared totally or partially unenfarceable destroys the release of claims
provided by Employee in Section II.
19. Governine Law and Draftsmanshi�. This Agreement wiil be construed and interpreted in
accordance with the laws of the State of Minnesota. It is further agreed that any action
initiated in connection with the interpretation of or adherence to the terms and provisions
of this Agreement shall be venued solely and exclusively in state court, in the State of
Minnesota, in the County of Washington. The parties to this Agreement agree and
acknowledge that this Agreement shall be considered to have been drafted equally by
each of the parties.
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Bruce Anderson
Subscribe�and sworn to before me
this��day of �r,���-,r, 2016.
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No ry Public �` , -
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� � NEIL R.BELSCAMPER
�€ NOTARY PUBLIC-MINNESOTA
��.;a.� My Commission Expires Jan.31,2020
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City of Cottage Grove
By: Myron Bailey
Its: Mayor
By: Joseph Fischbach
Its: City Clerk
Subscribed and sworn to before me
this day of ,2016.
Notary Public
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