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5.0.1. SR 06-06-20111 t./ Y I ~~ c.p ~ c~ SEPARATION AGREEMENT AND RELEASE This Separation Agreement and Release (hereafter "Agreement") is entered into by and between Ms. Lori Johnson ("Ms. Johnson" or "Employee") and the City of Elk River (the "City" or the "Employer"). Ms. Johnson and the City are each a "Party" to this Agreement, and are referred to collectively throughout this Agreement as the "Parties." RECITALS WHEREAS, Ms. Johnson has been employed by the City as City Administrator pursuant to an Employment Agreement dated February 21, 2006, the "Employment Agreement"; and WHEREAS, Ms. Johnson has resigned from her employment with the City effective June 6, 2011 (the "Separation Date") conditioned on the City's approval of this Agreement; and WHEREAS, the City has accepted Ms. Johnson's resignation and approved this Agreement; and WHEREAS, the Parties intend to resolve any and all claims, known or unknown, that may exist between Ms. Johnson on the one hand and the City and/or its agents on the other hand arising out of her employment with the City; NOW, THEREFORE, Ms. Johnson and the City hereby agree as follows: 1. Resignation by Ms. Johnson. By signing this Agreement, Ms. Johnson and the City affirm her resignation from employment with the City effective June 6, 2011 (the "Separation Date"). The City and Ms. Johnson likewise affirm that Ms. Johnson's last day of employment with the City is June 6, 2011. Ms. Johnson will not be an employee of the City after the Separation Date, and will not accrue vacation or any other benefits after that date, nor will she become entitled to receive any additional pay or compensation after that date except as provided for below in Section 2 as payments for independent contracting consultant services actually performed by Ms. Johnson for the City at its request. 2. Consulting_Services. Ms. Johnson and the City agree that following the Separation Date Ms. Johnson will provide consulting services to the City on an as- needed basis at the City's request. Such services will be provided by Ms. Johnson as an independent contractor to the City. Ms. Johnson's providing such services will be strictly on an independent contracting basis and will not in any way extend or renew an employment relationship between Ms. Johnson and the City. The City shall pay Ms. Johnson $75 per hour for services she performs at its request as an independent contractor consultant, including for any time she spends in depositions or trial 7. No Contest of Unemployment Claim. To the fullest extent consistent with its duties under the law the City agrees not to contest any claim by Ms. Johnson for unemployment compensation benefits. Ms. Johnson acknowledges that the City does not determine, nor does it control the determination of, whether or not she is eligible for unemployment benefits. 8. Complete Waiver and Release of Claims by Ms. Johnson. In consideration of the City's agreement herein to provide Ms. Johnson with the Severance Payment and benefits continuation contributions and for other good and valuable consideration the receipt and sufficiency of which Ms. Johnson hereby acknowledges with respect to all aspects of this Agreement, Ms. Johnson, on behalf of herself and all of her past, present and future heirs, executors, administrators, agents, attorneys, insurers, subrogees, lienors, trustees, indemnitors, principals, servants, representatives, employees, partners, predecessors, successors and assigns, hereby releases the City and any and all of its predecessors, successors, assigns and/or affiliated entities, and all of their respective current and former officers, agents, Council members, commissioners, directors, employees, independent contractors, shareholders, attorneys, accountants, insurers, representatives, predecessors, successors and assigns, both individually and in any representative or official capacity (collectively, the "Released Parties"), from each and every legal claim and demand of any kind, whether known or unknown, existing at any time up to and including the date on which Ms. Johnson signs this Agreement, including without limitation any claim or demand in any way arising out of or related to Ms. Johnson's employment with the City, the end of that employment, and any previous employment or other agreement or contract between her and the City. Ms. Johnson understands, acknowledges and agrees that this Agreement is a full, final, and complete release of the Released Parties from, and waiver by her of, any and all claims she has or may have, whether known or unknown, including but not limited to any claims or rights she may have under the Employment Retirement Income Security Act, the Minnesota Human Rights Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the Family and Medical Leave Act, and all other federal, state, or local government laws and regulations governing or relating to employment. Ms. Johnson further understands, acknowledges and agrees that she is releasing any claims she may have, whether known or unknown, for payment of compensation or benefits of any kind, or for fraud or misrepresentation, promissory estoppel, wrongful or constructive discharge, defamation, invasion of privacy, breach of a covenant of good faith and fair dealing, reprisal or retaliation, breach of contract, unjust enrichment, negligence, negligent hiring, supervision and retention, intentional or negligent infliction of emotional distress, and any other claims arising under any law or contract. Ms. Johnson agrees that if any claim she releases in this Agreement is prosecuted in her name before any court or administrative agency, she has waived her 4 right to receive any damages obtained through such prosecution and that accordingly she will not accept any award of money or other damages from such suit. Notwithstanding the foregoing, this Agreement does not release any rights or claims Ms. Johnson may have under the Minnesota Human Rights Act or the Age Discrimination in Employment Act that arise after she signs this Agreement or that arise from acts occurring after she signs this Agreement. Furthermore, this Agreement does not release any post-separation rights Ms. Johnson may have under an ERISA welfare benefit or pension plan that are specifically provided for in the applicable plan document or required by law, any rights she may have under any plan subject to Section 409A of the Internal Revenue Code of the United States to the extent the release would cause a violation of Section 409A, or any rights to post- separation benefits continuation under state or federal law. This Agreement also does not prevent Ms. Johnson from pursuing any claim to enforce this Agreement, or any right or claim that by law may not be waived. 9. Period for Review and Consideration. Ms. Johnson acknowledges that she has been given a period of 21 days from the date on which she receives a copy of this Agreement to review and consider this Agreement and her decision whether or not to enter into this Agreement. Ms. Johnson further understands that she may use as much or as little of this 21-day period as she wishes prior to signing this Agreement; provided, however, that Ms. Johnson may not sign or otherwise enter into this Agreement unless and until the City has officially accepted her resignation and approved this Agreement. If Ms. Johnson does not sign this Agreement within such 21-day period, the City's offer to enter into this Agreement terminates immediately at 12:01 a.m. of the 22"d day after the date on which Ms. Johnson received a copy of this Agreement. 10. Opportunity to Consult. Ms. Johnson is advised by the City to seek the advice of an attorney of her choosing prior to signing this Agreement. Ms. Johnson hereby acknowledges that she has had fully sufficient opportunity to do so in connection with entering into this Agreement. 11. Opportunity to Rescind. Ms. Johnson understands that she has the right to rescind, i.e., cancel, this Agreement for any reason within fifteen (15) days after she has signed it. If she decides to rescind this Agreement and mails her notice of rescision, she understands that it must be postmarked within the fifteen (15) day period, sent by certified mail, return receipt requested, and addressed to City Attorney Peter K. Beck, Gray Plant Mooty, 500 IDS Center, 80 S. 8th St., Minneapolis, MN 55402. 12. Non-Admission by Parties. By signing this Agreement, the Parties agree that nothing whatsoever in this Agreement or otherwise is to be construed as an admission by either Party of any liability or unlawful conduct. 5 13. Miscellaneous. 13.1. Inte rag tion. This Agreement is entered into in accordance with the Employment Agreement and state law and this Agreement incorporates the Employment Agreement by reference and as such embodies the entire agreement and understanding among the Parties relative to the separation of Ms. Johnson from employment with the City and relative to Ms. Johnson's release of claims arising out of her employment with the City. Accordingly, this Agreement supersedes any and all prior agreements and understandings relating to such subject matter. 13.2. Applicable Law. This Agreement and the rights of the Parties shall be governed by, and construed and enforced in accordance with the laws of the state of Minnesota. 13.3. Venue. Every dispute, difference, or question that may at any time arise between the Parties or any person claiming under them, touching on or arising out of or in respect of this Agreement or its subject matter, shall be resolved through the courts of Sherburne County, Minnesota whether or not such venue is or subsequently becomes inconvenient. 13.4. Counterparts. This Agreement may be executed in several counterparts and as so executed shall constitute one agreement binding on the Parties hereto. 13.5. Definitions. Capitalized terms used in this Agreement shall have their defined meaning throughout the Agreement. 13.6. Binding_Effect. Except as herein or otherwise provided to the contrary, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors, assigns and personal representatives. 13.7. Severability. The invalidity or partial invalidity of any portion of this Agreement shall not invalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the provisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity, subject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body or arbitrator by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then applicable law. 13.8. Assi ent. Ms. Johnson may not assign any rights or obligations under this Agreement without prior written consent of the City. The City may assign its rights or obligations hereunder without prior written consent of Ms. Johnson. 6 13.9. Headings. The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. 13.10. Modification. This Agreement shall not be modified or amended except by a written instrument signed by the Parties. IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates written below, INTENDING TO BE LEGALLY BOUND. Dated: Dated: By Its 14. GP:2988010 v4 Ms. Lori Johnson The City of Elk River: 7