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HomeMy WebLinkAbout04-349 Resolution No.04-349 RESOLUTION AUTHORIZING EXECUTION OF AN EMPLOYMENT SEPARATION AGREEMENT WITH DAVID M. DORGAN BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock, Mayor, and Dolonna Mecum, City Clerk,be and are hereby authorized and directed to execute an employment separation agreement on behalf of the City of Elgin with David M.Dorgan,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: December 15, 2004 Adopted: December 15, 2004 Vote: Yeas: 4 Nays: 2 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk December 16, 2004 MEMORANDUM TO: Loni Mecum, City Clerk FROM: William A. Cogley, Corporation Counsel SUBJECT: Employment Separation Agreement with City Manager David M. Dorgan Attached for the City Clerk' s files is an original fully executed copy of the Employment Separation Agreement between the City of Elgin and David M. Dorgan entered into and executed on December 15, 2004 . WW WAC nr Attachment EMPLOYMENT SEPARATION AGREEMENT THIS AGREEMENT made and entered into by and between the CITY OF ELGIN, a municipal corporation, on its own behalf and on behalf of its divisions, subdivisions, departments, affiliates, assigns, directors, officers, officials, elected officials, appointed officials, employees, attorneys and agents, past and present, (hereinafter collectively referred to as the "City") , and DAVID M. DORGAN, on his own behalf and on behalf of his agents, representatives, heirs, executors, attorneys, administrators, successors and assigns (hereinafter collectively referred to as the "Manager") . WHEREAS, Manager is currently employed by the City as City Manager pursuant to an employment contract; and WHEREAS, Manager has determined and agreed to retire and resign his position as City Manager with the City and the City has agreed to accept his retirement and resignation upon the terms and conditions stated in this agreement . NOW, THEREFORE, for and in consideration of the mutual promises and undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows : 1 . That Manager agrees to and does hereby retire and resign as City Manager of the City of Elgin effective March 1, 2005 at 5 : 00 p.m. (hereinafter referred to as the "Subject Retirement Date") . The City hereby accepts Manager' s retirement and resignation as City Manager . Manager shall return to the City all City of Elgin property and equipment by the Subject Retirement Date including, but not limited to, the City vehicle and cell phone . 2 . That the employment contract between the City and Manager dated January 31, 2003, as amended, (hereinafter referred to as the "Subject Employment Contract") is hereby terminated effective as of the Subject Retirement Date being March 1, 2005 at 5 : 00 p.m. Manager shall continue to receive his salary and other benefits provided for in the Subject Employment Contract until the Subject Retirement Date, whereupon as of the Subject Retirement Date (being March 1, 2005) all salary and all other benefits under the Subject Employment Contract shall terminate . 3 . That Manager shall receive from the City payment for all accrued unused vacation leave, if any, as of March 1, 2005 . Said payment for accrued unused vacation leave, if any, shall be paid by the City to the Manager in a lump sum on or before March 11, 2005 . The City shall deduct from such payment, if any, federal and state withholding taxes . The City shall pay, based upon the amount of the payment for any accrued unused vacation leave, if any, both the employer and employee contributions to the Illinois Municipal Retirement Fund and all applicable federal and state employer taxes . The City shall also deduct from such payment the deduction as set forth in paragraph 6 hereof . The limitation on the accumulation of -2- vacation leave provided for in City of Elgin Ordinance No. 56-88 is hereby waived for the Manager by the City Council pursuant to Section 6 of Ordinance No . S6-88 for unused vacation leave which would otherwise have been forfeited pursuant to Ordinance No . 56-88 at the end of the final payroll period for 2004 . 4 . That Manager shall receive from the City severance pay in the total sum of $141, 795 . Said total amount of $141, 795 shall be paid by the City to Manager in four (4) equal installments on December 27, 2004, January 28, 2005, February 11, 2005 and March 1, 2005 . The City shall deduct from such severance pay installments federal and state withholding taxes and employee contributions to the Illinois Municipal Retirement Fund. The City shall pay based upon the amount of such severance pay employer contributions to the Illinois Municipal Retirement Fund and all applicable federal and state employer taxes . The City shall also deduct from such severance pay installments the deduction as set forth in Paragraph 6 hereof. 5 . That the City shall pay for and continue in full force and effect until and including February 28, 2006, for Manager and his dependents the comprehensive major medical insurance equal to that which is provided to all other Class A employees of the City under the City' s 2004 non-bargaining unit member group benefit program for Group A employees, as amended. Manager, at his option, to the extent he remains eligible thereunder, may elect to continue at the Manager' s cost and -3- expense in the City' s program for the continuation of health insurance pursuant to City Ordinance No . G70-02 as amended. Notwithstanding anything to the contrary in this agreement, it is agreed and understood by the Manager that City Ordinance No. G70-02 providing for a continuation of health insurance may be amended in any fashion or repealed in the future by the City in the City' s sole and exclusive discretion . 6 . The parties agree that the Manager may elect to retire under and participate in the City' s currently pending Illinois Municipal Retirement Fund Early Retirement Incentive provided for under City of Elgin Resolutions 03-253, 03-254 and 03-255 . In the event the Manager does elect to retire under and participate in such currently pending Early Retirement Incentive the City shall pay the employer' s cost for Manager' s additional five (5) years of service under the Early Retirement Incentive and the Manager shall be responsible for the cost of the employee member' s contributions for the additional five (5) years of service under the Early Retirement Incentive. In the event Manager does elect to retire under and participate in such currently pending Early Retirement Incentive it is agreed that, unless the Manager provides the City with prior written instructions to the contrary, that the City shall also deduct from the payments provided for in Paragraphs 3 and 4 hereof the employee member contributions required for purchase of additional service as a reduction in earnings payments to the employee as provided in Resolution 03-255 . -4- 7 . That Manager waives and releases the City from any and all claims of any type arising out of or relating to his employment with the City or the separation of his employment with the City. This waiver and release includes, but is not limited to: claims that the City has violated its personnel policies, handbook, or any implied or express contract of employment; claims for entitlement to any pay, vacation, sick leave, severance, or welfare (including retiree medical coverage) or retirement benefits; claims for wrongful termination, violation of public policy, defamation, negligent or intentional infliction of emotional distress, invasion of privacy, loss of consortium, negligence, breach of contract, promissory estoppel, and any other common law, statutory law or constitutional claim; claims of discrimination or retaliation based on age (including the federal Age Discrimination in Employment Act) , ancestry, national origin, color, sex, pregnancy, concerted activity, disability, handicap, entitlement to benefits, marital status, parental status, race, religion, retaliation, sexual orientation, source of income, union activity, veteran ' s status, or other status protected by any -5- local, state or federal law or constitutional provision; and claims under any other local, state or federal statute, common law or constitution. 8 . That among the claims being waived and released by Manager are any and all claims under the federal Age Discrimination in Employment Act ("ADEA") . Pursuant to the requirements of the ADEA, Manager acknowledges that : (a) this waiver and release is written in a manner which is understood by Manager, that he in fact understands the waiver and release, and that he understands the entire agreement; (b) he expressly intends to waive and release claims under the ADEA; (c) he is not waiving rights or claims that may arise after the date this agreement is executed; (d) he is receiving valuable benefits under this agreement that he is not already entitled to receive, (e) he has been and is being advised by the City to consult with an attorney prior to executing this agreement; (f) he has been given a period of at least twenty-one (21) days within which to consider this agreement; (g) he has seven (7) days following the execution of this agreement to revoke the agreement; and (h) he has been advised this agreement shall not become effective or enforceable until the seven (7) day revocation period has expired. 9 . That it is the intention of Manager and the City that, in executing this agreement, Manager is providing the City a full and general release and that it shall be an effective bar -6- to and waiver of each and every claim, damage, cause, liability and/or cause of action either known or unknown, for all acts, omissions, practices occurring as of the date of this agreement . 10 . That to the fullest extent permitted by law, Manager agrees never to institute any suit, charge, complaint, proceeding, grievance or action of any kind at law, in equity, or otherwise in any court of the United States or in any state thereof or in any administrative agency of either the United States or of any state, county or municipality thereof or before any other tribunal, public or private, arising from or relating to Manager' s employment and/or separation with the City, and/or any other occurrence to the date of this agreement and also waives any right to recover any relief as a result of any such proceeding or proceeding instituted on his behalf. 11 . That both parties agree and acknowledge that this agreement does not constitute, is not intended to be, and shall not be construed, interpreted, or treated in any respect as an admission of liability or wrongdoing by the City or Manager. Both parties further agree that this agreement shall not be admissible in any proceedings as evidence of any improper action by the City or Manager. 12 . That the City and Manager agree that the Manager' s retirement and resignation shall be publicly announced via the statement from the Manager attached hereto as Exhibit A and via the press release from the City of Elgin attached hereto as Exhibit B. -7- 13 . That other than as stated herein, Manager states that no promise or inducement has been offered for this agreement and that he is legally competent to execute this agreement and accepts full responsibility therefor and has read and understands all of the terms of this agreement, that he has not been coerced, threatened or intimated into signing this agreement, and that he has voluntarily entered into this agreement with full knowledge of its meaning and consequences . 14 . That the parties agree that this agreement sets forth the entire agreement between the parties and supersedes any written or oral understanding, promise, or agreement directly or indirectly related to it which is not referred to and incorporated herein, all prior agreements and understandings between the parties having been merged herein and extinguished hereby. 15 . That the parties covenant and agree that this agreement shall be final and binding upon the parties, their successors, and assigns as to all past, present or future claims, disputes or causes of action referred to above which may have existed, exist now, or may exist in the future between them. 16 . That any changes in this agreement, whether by additions, deletions, waivers, amendments or modifications, may only be made in writing and signed by the parties . 17 . That this agreement is and shall be deemed and construed to be a joint and collective work product of the City -8- and Manager and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein . 18 . That to the extent any portion or covenant of this agreement may be held to be invalid or legally unenforceable by a court of competent jurisdiction, the remaining portions of the agreement shall not be affected and it shall be given full force and effect. 19 . That all notices or other communications hereunder shall be made in writing and shall be deemed given if personally delivered, sent by overnight courier or mailed by registered or certified mail, return receipt requested, to the parties at the following addresses or at such other addresses for a party as shall be specified by a like notice and shall be deemed received on the date which said notice is hand delivered or the second business day following the date on which so mailed: TO THE CITY: TO DAVID M. DORGAN City of Elgin David M. Dorgan 150 Dexter Court 115 Portsmouth Court Elgin, Illinois 60120-5555 Elgin, Illinois 60123 Attention: Corporation Counsel -9- 20 . That other than as specifically stated in this agreement, Manager is not entitled to receive and the City is not obligated to provide any other payments, monies or benefits . 21 . That this agreement shall be effective on the eighth (8th) day after Manager executes this agreement . IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement on the 15th day of December, 2004 . CITY OF ELGIN, a municipal corporation Ed Schock, Mayor David M. Dorgan Attest : J�-� Dolonna Mecum, City Clerk F:\Legal Dept\Agreement\Dorgan City Manager Separation Agreement-12-10-04-clean.doc -10- EXHIBIT A December 10, 2004 Dear Mayor Schock & Members of City Council: It has been my great privilege to be Elgin's City Manager for nearly two years. The City of Elgin today is financially stronger and better prepared for development and redevelopment opportunities. The City Council's priorities have been pursued, culminating in such achievements as the J.B. Sanfilippo Corporation project, annexation of more than 6,000 acres, expansion of the City's Fire and Police Departments, and general re-organization of staff into a more efficient and productive organization. However, in the best interest of the City, I am choosing to take the early retirement offered by the City thus allowing the City Council to choose a City Manager on which all members of the City Council can agree. My retirement is effective March 1, 2005. Much has been accomplished in the past two years and I would like to thank the City staff and citizens with whom I have enjoyed working and I am confident their endeavors will continue on behalf of the City of Elgin. Elgin is a great city with a bright future for which I only desire the very best. Sincerely, David M. Dorgan DMD/dr EXHIBIT B Elgin apes vi�M\ ' Clt of El in All-AmencaCitY Y g � 1 1 150 Dexter Court ' Elgin, Illinois 60120-5555 2002 NEWS RELEASE Date: December 15, 2004 FOR IMMEDIATE RELEASE CITY MANAGER DAVID M. DORGAN ANNOUNCES HIS RETIREMENT (Elgin, IL) — City of Elgin City Manager David M. Dorgan is retiring effective March 1, 2005. Mr. Dorgan has been the City Manager since March 10, 2003. During Mr. Dorgan's nearly two year tenure the city has realized a number of significant accomplishments including having put in place a long range strategy for the city's far west growth. The Mayor and members of the City Council and the city staff extend their thanks to Mr. Dorgan for his enthusiastic and diligent efforts on behalf of the City of Elgin and its citizens and wish Mr. Dorgan and his family best wishes in his retirement and future endeavors. 'SEC-10-2004 FRI 05:02 PM CITY OF ELGIN-LEGAL FAX NO. 1 847 931 5665 P. 02 CONFIDENTIAL-ATTORNEY CLIENT PRIVILEGED CC?Ib+iO'NICATION December 10, 2004 MEMORANDUM T0: Mayor and Members of the City Council FROM: William A. Cogley, Corporation Counsel SUBJECT: proposed Employment separation Agreement with David M. Dorgan Attached is the most recent draft of - the proposed employment separation agreement with City Manager David M. Dorgan. The proposed agreement may be summarized as follows : 1. Mr. Dorgan is retiring and resigning as the City Manager effective March 1, 2005 . 2 . Mr. Dorgan's employment contract with the city is terminated as of March 1, 2005 at 5: 00 p.m. Mr. Dorgan will continue to serve as the city manager until such date and will continue to receive his salary and other benefits provided for in his employment contract until such date. 3 . Mr. Dorgan will receive payment for all accrued unused vacation leave, if any, as of March 1, 2005 . This provision is already provided for in Mr. Dorgan' s employment contract and is the same benefit provided to all other city employees. 4. Mr. Dorgan would receive severance pay in the amount of one year's salary being $141, 795 . The city would pay such severance to Mr. Dorgan in four equal installments in December, January, February and on March 1, 2005 . 5 . The city would pay for and continue in effect for Mr. Dorgan and his family for one year the city' s comprehensive major medical insurance equal to that which is provided to other non-bargaining unit employees, 6. The agreement references the fact that Mr. Dorgan may elect to retire under the city' s pending IMRF early retirement incentive. The city is not agreeing to pay any portion of the employee share of the purchase of the additional years of service under the early retirement incentive. nEC-10-2004 FRI 05:03 PM CITY OF ELGIN-LEGAL FAX NO, 1 847 931 5665 P. 03 Mayor and Members of the city council -2- December 10, 2004 7. Mr. Dorgan is providing the city a comprehensive release from any and all claims arising out of his employment with the city or the separation of employment with the city. 8 . The city and Mr. Dorgan are agreeing that Mr. Dorgan's retirement and resignation shall be publicly announced via the written statement from Mr. Dorgan attached to the agreement as Exhibit A and the press release from the city attached to the agreement as Exhibit B. Based upon my discussions with Mr. Dorgan I expect this may be the final draft of the proposed agreement. I have a call in to Mr. Dorgan's attorney but I do not expect to hear from him until Monday morning. Please contact me as soon as possible if you have any comments on the agreement including, but not limited to, the proposed statement from Mr. Dorgan attached as Exhibit A or the proposed press release from the city attached to the agreement as Exhibit B. My telephone numbers over the weekend are 847-608-0261 (home) and 847-417-5972 (cell) . VVV/ WAc mg Attachment