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HomeMy WebLinkAbout03B Public Works Organization Discussion AGREEMENT, WAIVER AND RELEASE This Agreement, Waiver and Release (hereinafter “Agreement”) is made and entered into this _____ day of ____________, 2019, by and between Harry Taylor (hereinafter “Employee”) and the City of Cottage Grove (hereinafter “Employer”). WHEREAS, Employee has been employed by Employer since May 19, 1977; and WHEREAS, Employee and Employer mutually desire to set forth the terms and conditions under which Employee ends his employment with the City; NOW, THEREFORE, in consideration of the mutual promises and covenants established in this Agreement and in order to put to rest any and all possible disputes between the parties, the parties agree as follows: 1. Separation. Employee hereby acknowledges and confirms he is separating his employment from Employer with his last day of work to be December 31, 2019. Employee further acknowledges that he will be placed on paid administrative leave effective November 5, 2019 through December 31, 2019 and shall not accrue any additional personal leave benefits after November 4, 2019. 2. Benefits. Employer agrees to provide the following benefits to Employee subject to the rescission provision of Section 5: A. Severance Pay and Personal Leave. Employee will be entitled to the following benefits: i. Accrued paid personal leave benefits (656.44 hours), with 50% payable to Employee’s HCSP account and the remaining 50% payable in a lump sum amount. ii. Forty-one weeks compensation at Employee’s established rate, less applicable federal and state withholdings. This payment shall be made in a single lump-sum payment between January 1, 2020 and January 15, 2020, by direct deposit (if active direct deposit is in place) or if not, by mailing the payment to Employee’s home address at 8539 Hamlet Avenue South, Cottage Grove, MN 55016. iii. Employee agrees that he is solely responsible for any and all personal and individual tax liability created under the state and federal tax laws related to such payments and agrees to indemnify the City and hold it harmless for all such personal and individual liability obligations, if any. B. Disclosures. The parties agree that Employer will disclose information about Employee’s employment with the Employer in accordance with, and only to the extent allowed by, the provisions of the Minnesota Government Data Practices Act governing “personnel data.” Employee understands 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) day rescission period provided for in Section 5. 3. Release of Claims. Employee, on behalf of himself and his heirs, representatives, executors, 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), successors, assigns, employee welfare benefit plans and pension or deferred compensation plans, and their trustees, administrators and other fiduciaries, and all persons acting by, through, under, or in concert with them, or any of them (“Released Parties”), both individually and collectively, from any and all rights, claims, demands, controversies, attorneys’ fees, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of any nature, known or unknown, asserted or unasserted, fixed or contingent (“Claims”), which Employee may have, ever have had, or 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 all 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-termination benefits under any employee benefit plan; (iv) rights and benefits under the Consolidated Omnibus Reconciliation Act of 1985, as amended, (COBRA); (v) the right to enforce the terms of this Agreement; (vi) any right to defense, indemnification or 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 (USERRA) 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 Claims released by this Agreement specifically include, but are not limited to, the following: Page 2 of 8 (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 or 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 (MHRA), 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. Stat. Chap. 13; (4) The Veterans Preference Act (VPA), 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 (PELRA), Minn. Stat. §§179A.01 - .30; (8) The Occupational Safety and Health Act (OSHA), 29 U.S.C. §651, et seq.; (9) The Minnesota Occupational Safety and Health 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 (FLSA), 29 U.S.C. §201, et seq. (12) The Fair Labor and Standards Act, Minn. Stat. §§177.21 – 177.35; (13) The Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621, et seq., including, without limitation, the Older Workers Benefit Protection Act, 29 U.S.C. §623; (14) The Americans with Disabilities Act (ADA), 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 (FMLA), 29 U.S.C. §2601, et seq.; (17) The Employee Retirement Income Security Act (ERISA), 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 (NLRA), 29 U.S.C.§151, et seq. (20) The Equal Pay Act (EPA), 29 U.S.C., §206(d); (21) The Immigration and Reform Control Act, 8 U.S.C. §§1324a – 1324b; (22) The Worker Adjustment and Retraining Notification Act (WARN), 29 U.S.C. §2101, et seq.; (23) The Genetic Information Nondiscrimination Act of 2008 (GINA); (24) Any other federal statute that provides protections of any kind to employees; (25) Any amendments to any of the laws referenced in this subparagraph (d); Page 3 of 8 (26) 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, ordinances, public policy, and any and all 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, intentional/reckless/negligent infliction 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 or 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 predating his execution of this Agreement, including, without limitation, compensatory damages, incidental damages, consequential 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 declaratory relief from any or all of the Released Parties for any cause of action predating his execution of this Agreement. Employee also understands that he is not being required to waive, dismiss or withdraw any charges, grievances, petitions, or complaints that he may have filed against the City with the Equal Employment Opportunity Commission (EEOC), or local human rights or fair employment practices agency to the extent that any such charges, grievance, petition, or complaint claims a violation of Title VII, the ADEA, the ADA, GINA, the EPA, or other applicable civil rights or fair employment practice statutes, rules or regulations. Employee understands, however, that he is waiving his right to recover individual relief including, but not limited to, back pay, front pay, reinstatement, attorneys’ fees, and/or punitive damages, in any administrative or legal action whether brought by the EEOC or other civil rights enforcement agency, Employee, or any other party. 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 represents that if he signs this Agreement before the Page 4 of 8 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 By Employee. 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 (“MHRA”), Minn. Stat. Chap. 363, if done within fifteen (15) calendar days from the date he signs this Agreement. This Agreement shall not become effective until the rescission or revocation period has expired. Employee understands that in the event he rescinds this Agreement, the City shall 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 Jennifer Levitt, 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 Jennifer Levitt within the 15-day period. 6. Consequences of Rescission. Employee agrees, understands, and acknowledges that the City’s obligations to him, as set forth in this Agreement, shall be unenforceable unless and until the rescission periods with regard to Paragraph 5 has expired. 7. Recommendation 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 obligations to recommend that he retain counsel, as required by the ADEA and/or the MHRA, have been fulfilled. 8. Records, Documents and Property. Employee will return to the City all its records, correspondence and documents as well as all keys and equipment in his possession on November 4, 2019. 9. Knowing 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. 10. No Lawsuits. Employee represents that there are no lawsuits initiated or pending by him against the Released Parties. 11. 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. Subject to Employer’s obligation to pay Employee through December 31, 2019 in accordance with Section 1, above, Page 5 of 8 Employee acknowledges and confirms that he has reported all hours worked and has been paid in full for all hours worked. 12. Non-Admission of Liability. The parties understand and agree that neither the agreements set forth herein nor the execution of this Agreement shall constitute or be construed 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 will end the employment relationship in a mutually respectful manner, without making acrimonious statements or disparaging comments about the other. 13. Data Practices 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. 14. Complete Agreement. The parties acknowledge 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 parties and contains all terms and conditions pertaining to the settlement of the parties’ disputes. This Agreement supersedes all previous agreements, whether oral or written, between Employee and the City. 15. Knowing and Voluntary 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 he has had an opportunity to consult with an attorney of his choice to explain the terms of this Agreement and the consequences of signing it. 16. Counterparts. This Agreement may be signed simultaneously in two or more counterparts, each of which will be deemed the original, but all of which together will constitute one and the same document. Facsimile or PDF copies of signatures on this Agreement shall be deemed valid and original. 17. Severability Clause. In the event that any provision of this Agreement shall be held void or unenforceable by a court of competent jurisdiction which is affirmed on appeal, said judgment shall not affect, impair, or invalidate the remainder of this Agreement unless the provision declared totally or partially unenforceable destroys the release of claims provided by Employee in Section 3. 18. Governing Law and Draftsmanship. This Agreement will 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. Page 6 of 8 EMPLOYEE Harry Taylor Subscribed and sworn to before me this ____ day of _______________, 2019. Notary Public Page 7 of 8 CITY OF COTTAGE GROVE By: Myron Bailey Its: Mayor By: Joseph Fischbach Its: City Clerk Subscribed and sworn to before me this ____ day of ________________, 2019. Notary Public Page 8 of 8