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4.13. SR 11-21-2016Request for Action To Item Number Mayor and City Council 4.13 Agenda Section Meeting Date Prepared by Consent November 21, 2016 Cal Portner, City Administrator Item Description Reviewed by Separation Agreement Lauren Wipper, HR Representative Reviewed by Roger Knutson, City Attorney Action Requested Approve, by motion, a separation agreement with Park Maintenance Worker Amy Borst. Background/Discussion Park Maintenance Worker Amy Borst has requested to leave city service on short notice with recognition of her service with severance. The City Council discussed her performance with regard to severance and the variation from policy in a closed session on November 17, 2016. Financial Impact Severance payout in accordance with agreement. The position is fully funded for 2016. Attachments  Separation Agreement SEPARATION AGREEMENT AND RELEASE OF CLAIMS THIS SEPARATION AGREEMENT AND RELEASE OF CLAIMS is entered into by the CITY OF ELK RIVER), AMY BORST ) and LOCAL 49, INTERNATIONAL UNION OF OPERATING ENGINEERS Employee, Union and the City are collectively referred to as the parties. WHEREAS, the City currently employs Employee; and WHEREAS, employee is a member of the Union and the terms and conditions of employment are governed by a Labor Agreement; and WHEREAS, the parties are entering into this Agreement because Employee and the City mutually desire to conclude their employment relationship in an amicable manner and to ensure that no potential claims or conflicts arise. NOW THEREFORE, IN CONSIDERATION OF the mutual promises contained in this Agreement, the relinquishment of certain legal rights, and other valuable consideration, the sufficiency of which is acknowledged, the parties agree as follows: 1. Irrevocable Resignation. Employee hereby resigns from all employment with the City effective November 21, 2016. The Parties agree that employee is ineligible for future employment with the City. 2. Severance. Within twenty five (25) calendar days after her resignation, the City will pay Employee the equivalent of four weeks of salary at her current rate of compensation, less applicable withholding for federal and state taxes but not PERA. 3. Unused Vacation Leave. Within twenty five (25) calendar days after her resignation, the City will pay Employee for all accrued and unused vacation at her current rate of compensation, less applicable withholding for federal and state taxes but not PERA. 4. Employment Letter. City shall provide Employee with an employment letter. 5. No Further Claim to Compensation. This Agreement fully and completely satisfies any and all obligations between Employee and the City that arise out of or relate to her employment and resignation. Employee has no claim to any compensation from the City, in any form, beyond the compensation that is specifically described in this Agreement. 6. Release of Claims by Employee. In consideration of the terms and benefits described in this Agreement, and as an inducement for the City to enter into this Agreement, Employee hereby fully and completely releases, acquits, and forever discharges the City, its current and former Council members, its current and former officers, its current and 190155v1 former employees, and its current and former agents, representatives, insurers, attorneys, and other affiliates from any and all liability for any and all damages, actions, or claims, regardless of whether they are known or unknown, direct or indirect, asserted or unasserted, that arise out of or relate to any action, decision, event, fact, or circumstance occurring before Employee signs this Agreement. Employee understands and agrees that by signing this Agreement she is waiving and releasing any and all claims, complaints, causes of action, and demands of any kind that are based on or arise under any federal or state law, including but not limited to the federal constitution, the state constitution, and any federal or state statute, regulation, rule, or common law. 7. Claims Not Waived. By signing this Agreement, neither the City nor Employee is releasing or waiving any rights or claims that are based solely on events that occur after this Agreement is signed, or any right to institute legal action for the purpose of enforcing this Agreement. Additionally, Employee does not waive the following: (a) any right to apply for unemployment compensation benefits; (b) any claims arising under the r (c) any right to file a charge with a governmental agency, including the Equal Employment Opportunity Commission, although Employee agrees that she will not be able to recover any award of compensation, damages, or any other monies if she files a charge or complaint or has a charge or complaint filed on her behalf with any federal, state, or local government agency. 8. Revocation Under the ADEA. Employee recognizes that by signing this Agreement she is waiving and releasing any employment discrimination, retaliation, or other claims that she might have under the Employee signs this Agreement, she will have twenty one (21) calendar days to revoke her waiver and release of any claims arising under the ADEA. This right of revocation applies only to claims arising under the ADEA. For a revocation of claims under the ADEA to be effective, it must be delivered to City Administrator Cal Portner, either personally or by United States mail within the twenty one-day period. If delivered by mail, the revocation must be postmarked within the twenty one-day period, properly addressed to Cal Portner, City Administrator, Elk River City Hall, 13065 Orono Parkway NW, Elk River MN 55330-5600 and sent by certified mail, return receipt requested. 9. Rescission Under the MHRA. Employee recognizes that by signing this Agreement she is waiving and releasing any employment discrimination and retaliation claims that she might have under the the MHRA (Minnesota Statutes §363A.31), Employee has the right to rescind her release of claims in writing within fifteen (15) calendar days after signing it. This right of rescission applies only to any claims arising under the MHRA. For a rescission of claims arising under the MHRA to be effective, it must be delivered to City Administrator Cal Portner, either personally or by United States mail within the fifteen-day period. If delivered by mail, the rescission must be postmarked within the fifteen-day period, properly addressed to Cal Portner, City Administrator, Elk River City Hall, 13065 Orono Parkway NW, Elk River MN 55330-5600 and sent by certified mail, return receipt requested. Agreement and Release of Claims Page 2 of 4 190155v1 10. Effect of Rescission of Release of Claims. If Employee revokes or rescinds any part of the Release of All Claims in this Agreement, paragraphs 2, 3 and 4 of this Agreement will automatically be rescinded without further action by either party but the rest of this agreement shall remain in place. 11. Return of Property. Employee agrees to immediately return all City property that is in her possession. The City will provide Employee with a reasonable opportunity to remove her personal effects from her office in a manner that is not embarrassing and at a time when other City staff are not present. 12. Representation by Union. Employee acknowledges that she has been represented by her Union Representative with respect to this Agreement and all matters covered by and relating to it. Employee further agrees and represents that she has not received or relied upon any advice or representations by the City or the Agreement. The parties acknowledge that they have consulted with their own legal counsel, that they have thoroughly read and understand the terms of this Agreement, and that they are voluntarily entering into this Agreement. 13. Responsibility for Costs. Each party is responsible for its own costs, expenses, and any attorney fees associated with this Agreement. 14. No Admission of Wrongdoing. Nothing in this Agreement may be construed to be an admission of liability or wrongdoing by, against, or on behalf of the City, Union or Employee. Any form of wrongdoing or liability is expressly denied by the City and its representatives and by Employee and her representatives and the Union and its representatives. 15. Choice of Law, Forum and Severability. This Agreement is governed by the laws of the ent of Minnesota or any other state. The parties agree that the Minnesota state and federal courts will have exclusive jurisdiction over any dispute arising out of this Agreement. If a court determines that any part of this Agreement is unlawful or unenforceable, the remaining portions of the Agreement will remain in full force and effect. 16. Entire Agreement. This Agreement constitutes the entire agreement between the parties No party has relied upon any statements, promises, or representations that are not stated in this document. No changes to this Agreement are valid unless they are in writing and signed by all parties. A copy of this Agreement will have the same legal effect as the original. 17. Data Practices. The Parties agree that this Separation Agreement and Release of Claims Agreement and Release of Claims Page 3 of 4 190155v1 IN WITNESS WHEREOF, the parties have approved and executed this Agreement on the dates shown by their signatures. EMPLOYEE Date: Amy Borst IUOE LOCAL NO. 49 Date: BY: Its CITY OF ELK RIVER Date: BY: John J. Dietz, Mayor BY: Tina Allard, City Clerk Agreement and Release of Claims Page 4 of 4 190155v1