04-349 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