12-27 Resolution No. 12-27
RESOLUTION
AUTHORIZING EXECUTION OF AN EMPLOYMENT SEPARATION AGREEMENT
WITH DEBRA L. BARR
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that
Sean R.Stegall,City Manager,and Kimberly A.Dewis,City Clerk,be and are hereby authorized and
directed to execute an employment separation agreement on behalf of the City of Elgin with Debra L.
Barr, a copy of which is attached hereto and made a part hereof by reference.
s/ David J. Kaptain
David J. Kaptain, Mayor
Presented: February 8, 2012
Adopted: February 8, 2012
Omnibus Vote: Yeas: 6 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
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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 DEBRA L. BARR, on her own behalf and on behalf of her spouse, family, agents,
attorneys, representatives, heirs, executors, administrators, successors and assigns (hereinafter
collectively referred to as"Ms. Barr").
WHEREAS, Ms. Barr is currently employed by the City as a Senior Recreation
Supervisor for community programs; and
WHEREAS, the City has offered to certain employees a voluntary separation program;
and
WHEREAS, Ms. Barr has determined and agreed to resign her position and employment
with the City and the City has agreed to accept her 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 Ms. Barr agrees to and does hereby irrevocably resign her position as a
Senior Recreation Supervisor for community programs and her employment with the City of
Elgin effective February 3, 2012 at 5:00 p.m. (hereinafter referred to as the "Subject Resignation
Date"). The City hereby accepts Ms. Barr's resignation from her position and employment with
the City. To the extent she has not already done so, Ms. Barr 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. Ms. Barr shall continue to receive her current
salary and other employment benefits until the Subject Resignation Date, whereupon as of the
Subject Resignation Date(being February 3, 2012) all salary and other employment benefits with
the City shall terminate. For purposes of clarification, Ms. Barr 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 February 3, 2012.
2. If Ms. Barr signs this Agreement and does not revoke this Agreement, Ms. Barr
shall receive from the City severance pay in the total equal to Ms. Barr's current annual base
salary pro-rated for the time period of February 3, 2012, through March 30, 2012. The amount
of severance pay shall be paid by the City to Ms. Barr in installments in two-week intervals
according to the City's regular payroll schedule through March 30, 2012. 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 (15% and 100%
for dental) for the comprehensive major medical insurance and dental insurance referred to in
Paragraph 3 hereof. 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 Ms. Barr signs this Agreement and does not revoke this Agreement, and if Ms.
Barr pays the employee's portion (15%) of the premiums, the City shall pay the City's portion
(85%) for and continue in full force and effect until and including July 31, 2012, for Ms. Barr the
comprehensive major medical insurance equal to the current HMO BA single insurance coverage
currently being provided to Ms. Barr from February 3, 2012, through February 29, 2012, and the
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comprehensive major medical insurance equal to the current PPO #1 single health insurance
coverage from March 1, 2012, through July 31, 2012. If Ms. Barr signs this Agreement and does
not revoke this Agreement, and if Ms. Barr pays 100% of the premiums therefor, the City shall
continue in full force and effect until and including July 31, 2012, for Ms. Barr the dental PPO
#1 single coverage currently being provided to Ms. Barr.
4. If Ms. Barr signs this Agreement and does not revoke this Agreement, in the event
Ms. Barr files a claim for unemployment benefits the City agrees not to contest or oppose such
claim.
5. That in consideration of the benefits Ms. Barr is receiving in this Agreement, Ms.
Barr 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 her employment with the City
and/or the separation of her 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 Ms. Barr and any
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member of Ms. Barr's family; promissory estoppels; and any other common law,
statutory law or constitutional claim;
Claims that the City is in any way obligated for any reason to pay Ms.
Barr 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 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 Ms. Barr 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
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2009, the Genetic Information Non-discrimination Act, and all other federal, state
or local laws;
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 Ms. Barr are any and all
claims under the federal Age Discrimination in Employment Act ("ADEA"). Pursuant to the
requirements of the ADEA, Ms. Barr acknowledges that: (a)this waiver and release is written in
a manner which is understood by Ms. Barr, that she in fact understands the waiver and release,
and that she understands the entire Agreement; (b) she expressly intends to waive and release
claims under the ADEA; (c) she is not waiving rights or claims that may arise after the date this
Agreement is executed; (d) she is receiving valuable benefits under this Agreement that she is
not already entitled to receive, (e) she has been and is being advised by the City to consult with
an attorney prior to executing this Agreement and she has in fact consulted with an attorney prior
to executing this Agreement; (1) she has been given a period of at least twenty-one (21) days
within which to consider this Agreement; (g) she has seven (7) days following the execution of
this Agreement to revoke the Agreement; and (h) she 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 Ms. Barr are all rights,
claims or causes of action under the Lily Ledbetter Fair Pay Act, including claims that she has
been adversely affected by the application of a discriminatory compensation decision or other
discriminatory practice. Ms. Barr agrees and acknowledges that Ms. Barr is waiving and
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releasing any right, claim or cause of action that the gross severance pay amount provided for in
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 Ms. Barr and the City that, in executing this Agreement,
Ms. Barr 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 Ms. Barr's right to any earned but unused vacation as of the
date of Ms. Barr's employment termination. Also excluded from the general waiver and release
is Ms. Barr's right to file a charge with an administrative agency or participate in any agency
investigation. Ms. Barr understands and agrees, however, that she is waiving her right to recover
any money in connection with such a charge or investigation. Ms. Barr further understands and
agrees that she is also waiving her 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 Ms. Barr to the City,
Ms. Barr 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, Ms. Barr 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
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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 Ms. Barr'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 her behalf. Notwithstanding the foregoing, Ms. Barr
may bring a claim against the City to enforce this Agreement or to challenge the validity of the
general release under the ADEA, and she has the right to file a charge with an administrative
agency or participate in any agency investigation. Ms. Barr understands and agrees, however,
that she is waiving her right to recover any money in connection with such a charge or
investigation. Ms. Barr further understands and agrees that if she sues the City in violation of
this Agreement: (i) she 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 her 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. Ms. Barr further agrees that Ms. Barr: (i) has been paid for all hours worked, and
has been paid her earned compensation, (ii) she has not suffered any on the job injury for which
she has not already filed a claim; and (iii) she has received all leaves of absences and
reinstatements, that she has not been denied any requested leave of absence, and that she has
been reinstated to her 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 Ms. Barr. Both parties further agree that this
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Agreement shall not be admissible in any proceedings as evidence of any improper action by the
City or Ms. Barr.
13. That other than as stated herein, Ms. Barr agrees and states that no promise or
inducement has been offered for this Agreement; that she is competent as a matter of law to
execute this Agreement and accepts full responsibility therefor; that she has not been coerced,
threatened or intimidated into signing this Agreement; that she has knowingly and voluntarily
entered into this Agreement with full knowledge of its meaning and consequences; that she has
read and reviewed this Agreement carefully and fully understands all of the terms of this
Agreement, including that she is waiving and releasing all Claims under federal, state and local
laws (including but not limited to age discrimination, other discrimination and retaliation); that
she fully understands that the general release does not waive rights or claims that may arise after
the date this Agreement is executed; that she has been advised in writing to consult with an
attorney before signing this Agreement; that she fully understands she may take up to twenty-one
(21) days to consider this Agreement before signing it; and that she is not otherwise entitled to
receive the benefits being provided to her 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 fmal and binding
upon the parties, their successors, and assigns as to all past, present or future claims, disputes or
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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 Ms. Barr 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:
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TO THE CITY: TO DEBRA L. BARR:
City of Elgin DEBRA L. BARR
150 Dexter Court 625 Lake Ridge Drive
Elgin, Illinois 60120-5555 South Elgin, Illinois 60177
Attention: Corporation Counsel
21. That other than as specifically stated in this Agreement, Ms. Barr is not entitled to
receive and the City is not obligated to provide any other payments, monies or benefits.
22. That following Ms. Barr's execution of this Agreement Ms. Barr shall have seven
(7) days from the date she signs this Agreement to revoke this Agreement. If Ms. Barr wants to
revoke the Agreement, Ms. Barr should deliver a written revocation to William A. Cogley,
Corporation Counsel for the City of Elgin, within seven (7) days after she 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 Ms. Barr on January
27, 2012. Ms. Barr 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 February 17, 2012. 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 Ms. Barr on January 27, 2012, 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(21)-day period Ms. Barr has to execute this Agreement.
24. That this Agreement shall be effective on the eighth (8th) day after Ms. Barr
executes this Agreement if she does not revoke this Agreement before then.
[SIGNATURE PAGE FOLLOWS]
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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: 'I
tdI1f4:
n R. Stegall, City Ma er DEBRA L. BARR
Attest: Date of Execution: February 1 , 2012
'tt t 1 , A
Kimberly A. De is, City Clerk
Date of Execution: February 8 , 2012
STATE OF ILLINOIS )
) SS.
COUNTY OF KANE )
I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO
HEREBY CERTIFY that DEBRA L. BARR 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 she signed, sealed and delivered the said instrument as her free and
voluntary act, for the uses and purposes therein set forth.
Given under my hand and official seal this 1st day of February , 2012.
.: : ,�� ��•:�• i •�\\ ' tib �� 1 90 �_ 1\(\)
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"OFFICIAL SEAL"• otary 'ublic
BARBARA E.FURMAN
Notary Public,State of Illinois
My Commission Expires 08/06/15
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