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HomeMy WebLinkAbout22-206 Resolution No. 22-206 RESOLUTION AUTHORIZING EXECUTION OF AN EMPLOYEE SEPARATION AGREEMENT WITH BRENDAN BROOKS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Employee Separation Agreement on behalf of the City of Elgin with Brendan Brooks,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: November 16, 2022 Adopted: November 16, 2022 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk EMPLOYMENT SEPARATION AGREEMENT THIS AGREEMENT("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,assigns,officers,officials,elected officials,appointed officials,employees,attorneys and agents, past and present, (hereinafter collectively referred to as the "City"), and BRENDAN BROOKS, on his own behalf and on behalf of his spouse, family, agents, attorneys, representatives, heirs, executors, administrators, successors and assigns (hereinafter collectively referred to as"Mr. Brooks"). WHEREAS, Mr. Brooks is currently employed by the City as an ITS Network Manager; and WHEREAS, Mr.Brooks has determined and agreed to resign his position and employment with the City and the City has agreed to accept his 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 Mr. Brooks agrees to and does hereby irrevocably resign his position as a ITS Network Manager and his employment with the City of Elgin effective November 30,2022 at 5:00 p.m. (hereinafter referred to as the "Subject Resignation Date"). The City hereby accepts Mr. Brooks' resignation from his position and employment with the City. To the extent he has not already done so, Mr. Brooks shall return to the City all City of Elgin property and equipment by the Subject Resignation Date including, but not limited to, the City computer, cell phone, credentials and keys. Mr.Brooks shall continue to receive his current salary and other employment benefits until the Subject Resignation Date, whereupon as of the Subject Resignation Date(being November 30, 2022) all salary and other employment benefits with the City shall terminate. For purposes of clarification, Mr. Brooks shall also receive from the City payment for all accrued unused vacation leave, unused personal time and for a portion of unused sick leave pursuant to City policy, as of November 30, 2022. 2. If Mr. Brooks signs this Agreement and does not revoke this Agreement, Mr. Brooks shall receive from the City severance pay equal to two (2)months of Mr. Brooks' current salary in the total amount of$18,796. The amount of severance pay shall be paid by the City to Mr. Brooks in a lump sum at the time of the City's regular payroll date on December 9, 2022. The City shall deduct from such severance pay federal and state withholding taxes, the employee contribution to the Illinois Municipal Employee Retirement Fund and the employee contributions for the comprehensive major medical insurance and dental and vision insurance referred to in Paragraph 3 hereof(15% for comprehensive major medical insurance and 100% for dental and vision insurance). The City shall pay based upon the amount of such severance pay all applicable federal and state employer taxes and the employer contribution to the Illinois Municipal Employee Retirement Fund. 3. If Mr. Brooks signs this Agreement and does not revoke this Agreement,and if Mr. Brooks pays the employee's portion(15%) of the premiums, the City shall pay the City's portion (85%)of the premiums for and continue in full force and effect for Mr. Brooks the comprehensive major medical insurance for the PPO1 family insurance coverage offered to employees from December 1, 2022, through January 31, 2023. If Mr. Brooks signs this Agreement and does not revoke this Agreement, and if Mr. Brooks pays 100% of the premiums therefore, the City shall -2- continue in full force and effect for Mr. Brooks the dental insurance PPO1 family coverage and the vision insurance family coverage from December 1, 2022, through January 31, 2023. 4. If Mr. Brooks signs this Agreement and does not revoke this Agreement, in the event Mr. Brooks files a claim for unemployment benefits the City agrees not to contest or oppose such claim. 5. That in consideration of the benefits Mr.Brooks is receiving in this Agreement,Mr. Brooks waives and releases the City from any and all known or unknown claims,allegations,suits, claims for damages or any and all other liability of any type or of whatsoever nature (hereinafter collectively referred to as "Claims") arising out of or relating to his employment with the City and/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, procedures, handbook, any covenant of fair dealing or any implied or express contract of any kind; Claims that the City has violated public policy, statutory or common law, including but not limited to Claims for: personal injury;breach of fiduciary duties; invasion of privacy; retaliatory discharge; negligent hiring, retention or supervision; defamation; fraud; intentional or negligent infliction of emotional distress and/or mental anguish; intentional interference with contract; negligence; whistle blowing; detrimental reliance; loss of consortium to Mr. Brooks and any member of Mr. Brooks' family;promissory estoppels; and any other common law, statutory law or constitutional claim; -3- Claims that the City is in any way obligated for any reason to pay Mr. Brooks salary, compensation, benefits, commissions, bonuses, severance benefits, vacation,sick leave,paid time off,stock grants,stock options or other stock-related benefits, profit sharing, damages, expenses, litigation costs (including attorneys' fees), back pay, front pay, disability or welfare, pension or retirement benefits (other than any accrued retirement benefits), compensatory damages, punitive damages, and/or interest; Claims of discrimination or retaliation based on age (including but not limited to the federal Age Discrimination in Employment Act), ancestry, national origin, color, sex (including but not limited to sexual harassment), gender, pregnancy,concerted activity,disability(including but not limited to the Americans with Disabilities Act), handicap, entitlement to benefits, health factor, marital status, parental status, race, religion, retaliation, sexual orientation, source of income,union activities,veteran's status,or other status protected by any local,state or federal laws, constitutions,regulations, ordinances or executive orders; Claims that the City has retaliated against Mr. Brooks in violation of any federal, state or local laws; Claims that the City has violated the Fair Labor Standards Act, the Family Medical Leave Act, the Employee Retirement Income Security Act, the Workers Adjustment and Retraining Act, the National Labor Relations Act, the Labor- Management Relations Act, Sarbanes-Oxley, the Lily Ledbetter Fair Pay Act of 2009, the Genetic Information Non-discrimination Act, and all other federal, state or local laws; -4- Claims under the United States or the State of Illinois Constitutions including but not limited to Claims under 42 USC §1983; and Claims under any other local, state or federal statute, common law or constitution. 6. That among the Claims being waived and released by Mr. Brooks are any and all claims under the federal Age Discrimination in Employment Act ("ADEA"). Pursuant to the requirements of the ADEA, Mr. Brooks acknowledges that: (a) this waiver and release is written in a manner which is understood by Mr. Brooks,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 and he has in fact consulted 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. 7. That among the Claims being waived and released by Mr. Brooks are all rights, claims or causes of action under the Lily Ledbetter Fair Pay Act,including claims that he has been adversely affected by the application of a discriminatory compensation decision or other discriminatory practice. Mr. Brooks agrees and acknowledges that Mr. Brooks is waiving and releasing any right, claim or cause of action that the gross severance pay amount provided for in -5- this Agreement is the result of or based on discrimination based on sex, race, national origin, age or disability. 8. That it is the intention of Mr. Brooks and the City that, in executing this Agreement, Mr. Brooks is providing the City a full and general release and that it shall be an effective bar to and waiver of each and every claim, damage, cause, allegation, liability and/or cause of action either known or unknown, for all acts, omissions, practices occurring as of the date of this Agreement. 9. That excluded from the general waiver and release are any and all claims or rights which cannot be waived by law,and Mr. Brooks'right to any earned but unused vacation as of the date of Mr. Brooks' employment termination. Also excluded from the general waiver and release is Mr. Brooks' right to file a charge with an administrative agency or participate in any agency investigation. Mr. Brooks understands and agrees,however,that he is waiving his right to recover any money in connection with such a charge or investigation. Mr. Brooks further understands and agrees that he is also waiving his right to recover money in connection with a charge or complaint filed by any other individual or by the Equal Employment Opportunity Commission or any other federal, state or local agency. 10. That in addition to the general waiver and release provided by Mr. Brooks to the City, Mr. Brooks also agrees to the covenant not to sue the City as described in this paragraph. A covenant not to sue is different from the general waiver and release of claims set forth above. Besides waiving and releasing the claims covered by the general waiver and release described above, Mr. Brooks further agrees never to file or 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, -6- county or municipality thereof or before any other tribunal, public or private, arising from or relating to Mr. Brooks' 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. Notwithstanding the foregoing, Mr. Brooks may bring a claim against the City to enforce this Agreement or to challenge the validity of the general release under the ADEA,and he has the right to file a charge with an administrative agency or participate in any agency investigation. Mr. Brooks understands and agrees, however, that he is waiving his right to recover any money in connection with such a charge or investigation. Mr. Brooks further understands and agrees that if he sues the City in violation of this Agreement: (i) he shall be liable to the City for its reasonable attorney's fees and other litigation costs incurred in defending such a suit; and (ii) the City shall be excused from making or continuing any further payments otherwise owed to him under this Agreement. (As indicated above, however, it would not violate any part of this Agreement to sue the City to enforce this Agreement or to challenge the validity of the general release under the ADEA.) 11. Mr. Brooks further agrees that Mr. Brooks: (i) has been paid for all hours worked, and has been paid his earned compensation,(ii)he has not suffered any on the job injury for which he has not already filed a claim;and(iii)he has received all leaves of absences and reinstatements, that he has not been denied any requested leave of absence, and that he has been reinstated to his prior position following any leave. 12. 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 Mr. Brooks. Both parties further agree that this -7- Agreement shall not be admissible in any proceedings as evidence of any improper action by the City or Mr. Brooks. 13. That other than as stated herein, Mr. Brooks agrees and states that no promise or inducement has been offered for this Agreement;that he is competent as a matter of law to execute this Agreement and accepts full responsibility therefor;that he has not been coerced,threatened or intimidated into signing this Agreement; that he has knowingly and voluntarily entered into this Agreement with full knowledge of its meaning and consequences; that he has read and reviewed this Agreement carefully and fully understands all of the terms of this Agreement, including that he is waiving and releasing all Claims under federal, state and local laws(including but not limited to age discrimination, other discrimination and retaliation); that he fully understands that the general release does not waive rights or claims that may arise after the date this Agreement is executed; that he has been advised in writing to consult with an attorney before signing this Agreement; that he fully understands he may take up to twenty-one (21) days to consider this Agreement before signing it; and that he is not otherwise entitled to receive the benefits being provided to him under this Agreement. 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 terminated 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 -8- 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 and Mr. Brooks 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. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 20. 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: -9- TO THE CITY: TO BRENDAN BROOKS: City of Elgin BRENDAN BROOKS 150 Dexter Court 504 Belmont Parkway Elgin, Illinois 60120-5555 Sleepy Hollow, Illinois 60118 Attention: Corporation Counsel 21. That other than as specifically stated in this Agreement,Mr. Brooks is not entitled to receive and the City is not obligated to provide any other payments,monies or benefits. 22. That following Mr. Brooks' execution of this Agreement Mr. Brooks shall have seven (7) days from the date he signs this Agreement to revoke this Agreement. If Mr. Brooks wants to revoke the Agreement, Mr. Brooks should deliver a written revocation to William A. Cogley, Corporation Counsel for the City of Elgin, within seven (7) days after he signs the Agreement. This Agreement shall not become effective or enforceable until this seven day revocation period has expired. 23. That this Agreement has been presented to and offered to Mr. Brooks on October 31, 2022. Mr. Brooks shall not be required to execute this Agreement, and the City shall not withdraw its offer of this Agreement prior to twenty-one(21)days from such date or on or before November 21,2022.The parties further agree that,notwithstanding the changes to this Agreement which have been negotiated between the parties and made to this Agreement since the Agreement was originally presented and offered to Mr. Brooks on October 31, 2022, the parties hereto agree that the changes do not restart the running of the twenty-one (21) day period and do not extend the twenty-one(2 1)day period Mr. Brooks has to execute this Agreement. 24. That this Agreement shall be effective on the eighth (8th) day after Mr. Brooks executes this Agreement if he does not revoke this Agreement before then. [SIGNATURE PAGE FOLLOWS] -10- IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement on the dates following their respective signatures below. CITY OF ELGIN, a municipal corporation By: Richard G. Kozal, C1 Ma ger BRENDAN BROOKS Attest: Date of Execution: // 1 , 2022 a 61,,lt�/ � 6 d� mberly A. De Ms, City Clerk Date of Execution: November 16 2022 STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) 1, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that BRENDAN BROOKS personally known to me to be the same person whose name is subscribed to the foregoing instrument,appeared before me this day in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal this day of Na 1 gM 2022. k,'�Tt� �' "OFFICIAL SEAL" Notary Public KATLIN S.BENNETT Notary Public,State of Illinois My Commission Expires June 29,, 5 legal dept\agreement\employment separation agreement-brendan brooks-clean-I1-3-22.docx -11-