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HomeMy WebLinkAboutcocc_addon_agenda_item_20190917 City of Cape Canaveral '' ' 44,4kCity Council Agenda Form %a," City Council Meeting Date: 9/17/2019 Item No. Add-On Subject: Consider approving Mutual Separation Agreement with David L. Greene Department: Office of the Mayor and City Manager Summary: This item is presented at Mayor Hoog's and City Manager David Greene's request. The City Council should consider approving the Mutual Separation Agreement between the City and David L. Greene. The Agreement provides for the end of David Greene's employment with the City by mutual agreement, effective September 17, 2019. The Agreement was prepared by the City Attorney at the Mayor's and City Manager's request. The material terms of the Agreement provide: 1. Standard provisions regarding Mutual Releases of liability,foregoing legal action against the City, general release and indemnification of actions taken by employee during the scope of his duties with the City (with exclusions), waiver of right of future employment with the City, miscellaneous provisions and provisions required by law, etc. 2. Non-Disparagement Clause of the City. 3. Payment of Six (6)month's severance pay - $75,191.04. 4. Cost of COBRA to continue health coverage not to exceed six(6)months - $5,009.94. 5. Payment of accrued Paid Time Off- 480 hours X $75.19 per hr. = $36,091.20 Submitting Department Director: N/A Date: Attachments: 1. Mutual Separation Agreement Financial Impact: Stated Above Reviewed by Administrative/Financial qInliiicesDictoJohn DeLeo Date: 6 cls) s:,•\ Nf e-k,N.c..l c -P- Approved QApproved by City Manager: David L. Greene Date: c'l/17/249/ q I MUTUAL SEPARATION AGREEMENT & RELEASE OF ALL CLAIMS THIS MUTUAL SEPARATION AGREEMENT & RELEASE OF ALL CLAIMS ("Agreement") is made and entered into by and between DAVID L. GREENE ("Employee") and THE CITY OF CAPE CANAVERAL, Florida. ("City"). WHEREAS, Employee and City desire to mutually agree to end Employee's employment with the City effective September 17, 2019 under the terms and conditions stated herein. NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. Effective Date. Effective Tuesday, September 17, 2019 and upon execution of this Agreement by the parties, Employee's employment with the City is hereby ended and Employee shall no longer be employed by the City as City Manager. 2. No Admission of Liability. Neither Employee's separation nor this Agreement shall be construed as an admission of liability against the City, the City Council, the City Manager, City Attorney and/or its past or present Council Members, Managers, employees, elected officials, City Attorneys or representatives, in their individual and official capacity, (hereinafter referred to individually and jointly as "Releasees"), or as a violation of local, state, or federal law or an admission of any wrongdoing of any kind by Releasees with respect to Employee's employment with the City. 3. General Release of the City. In consideration of the severance, covenants and promises of the City as stated in this Agreement, Employee on behalf of Employee and Employee's family members, heirs, devisees, and assignees, hereby fully and finally releases and discharges the Releasees from any and all present and future claims against the Releasees including, but not limited to, claims of unpaid interest, unpaid wages, recordkeeping violations, unpaid overtime compensation, unpaid minimum wages, unpaid expenses, liquidated damages, unpaid benefits, emotional distress or mental anguish, physical injury, unlawful retaliation, loss of consortium, and any other charges, demands, debts, rights, damages, liens, costs, losses, suits, actions, causes of action, claims for attorney's fees and costs, in law or in equity, known or unknown, which Employee and/or Employee's family members, heirs, devisees, and assignees presently have or have had against the Releasees arising from or by reason of any matter, act, omission, cause or thing whatsoever, known or unknown, foreseen or unforeseen, from the beginning of time to the date Employee executed this Agreement, including without limitation, any and all claims by or on behalf of Employee and/or Employee's family members, heirs, devisees and assignees against the Releasees, any alleged violation of any state or federal constitutional provision, Executive Order, any local, state, federal, or international law, norm or regulation, Mutual Separation Agreement & Release of All Claims City of Cape Canaveral / David L. Greene Page 1 of 6 violation of common law, breach of contract, tortious act, or other wrongdoing; any and all claims of other liability or damage of any nature whatsoever which have arisen or might have arisen from any alleged acts, omissions, events, circumstances or conditions related to Employee's employment with the City, or Employee's treatment by the Releasees; any and all possible claims asserted or which could have been asserted by Employee in any complaint, suit or charge against the Releasees (including, without limitation, any complaints made or which could have been made to any local, state or federal agency), for or on account of any matter or thing whatsoever occurring up to and including the date of Employee's execution of this Agreement; any and all claims arising out of alleged violations of any alleged employment or other contractual promise or covenant, express or implied, or any tort; any and all claims, including but not limited to the following laws and their supporting regulations, if any: Title VII of the Civil Rights Act of 1964; The Civil Rights Act of 1991; Sections 1981 through 1988 of Title 42 of the United States Code; any Executive Order; the Rehabilitation Act of 1973; the Americans with Disabilities Act ("ADA"); the Age Discrimination in Employment Act ("ADEA"); the Employee Retirement Income Security Act of 1974, as amended ("ERISA"); the Family and Medical Leave Act ("FMLA"); the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); the American Recovery and Reinvestment Act of 2009 ("ARRA"); Florida's Whistleblower Protection Act (Section 448.101, et seq., Florida Statutes); the Florida Civil Rights Act (Section 760.01, et seq., Florida Statutes); the Fair Labor Standards Act ("FLSA"); the Occupational Safety and Health Act ("OSHA"); the Worker Adjustment and Retraining Notification Act ("WARN"); the Sarbanes-Oxley Act of 2002; Chapter 448, Florida Statutes; the minimum wage amendment under the Florida Constitution; Florida Workers' Compensation Law; Florida's statutory provision regarding retaliation/discrimination for filing a Workers' Compensation claim (Section 440.205, Florida Statutes); Florida's Wage Discrimination Law (Section 448.07, Florida Statutes); Florida's law prohibiting discrimination on the basis of the sickle cell trait (Section 448.075, et seq., Florida Statutes); Florida's HIV/AIDS anti-discrimination law (Section 760.50, Florida Statutes); the Immigration Reform and Control Act; and other state law causes of action, whether statutory or based upon common law, including, but not limited to, those for wrongful termination, invasion of privacy, battery, assault, false imprisonment, defamation, libel, slander, intentional or negligent infliction of emotional distress, fraud, fraud in the inducement, breach of express or implied contract, and breach of any express or implied covenant of good faith and fair dealing, the validity, existence or occurrence of which is expressly denied by the Releasees. Nothing in this Agreement, however, prohibits Employee from pursuing any unemployment benefits they may be entitled to receive under Florida law. The City agrees that if Employee pursues a claim for unemployment benefits, the City will not contest the claim. 4. Promise to Forego Legal Action and Indemnification. In consideration of the severance, covenants and promises of the City as stated in this Agreement, Employee agrees upon signing this Agreement never to file any lawsuits, charges, or complaints Mutual Separation Agreement& Release of All Claims City of Cape Canaveral/ David L. Greene Page 2 of 6 (including, without limitation, any complaints with any federal, state, or local agency), or legal, equitable or administrative proceedings asserting any claims or rights that are released in Paragraph 3 above. If Employee or any of Employee's family members, heirs, devisees or assignees institute any legal, equitable or administrative proceeding or file any lawsuit, charge or complaint based on claims or rights that are released under this Agreement, then Employee will indemnify and hold the Releasees harmless from any liability imposed as a result of such action or proceeding and from all attorney's fees, costs, and expenses incurred in defending any such action or proceeding. Employee represents and warrants that Employee has filed no administrative, civil or criminal charges, action or complaints against the Releasees with any court or other entity, including without limitation, any federal, state, or local governmental agency. Employee affirms payment of all compensation, wages, bonuses, commissions or any other benefits for which employee was entitled to receive while employed by the City and that no other wages or leave is due. 5. General Release and Indemnification of Employee. City agrees to release, hold harmless, indemnify and defend Employee for all bona fide actions arising out of actions taken within the scope of his duties as City Manager and consistent with Employee's duties and responsibilities provided for in the City Charter. However, Employee shall not be held harmless and defended by the City for criminal conduct, gross negligence, or intentional misconduct. 6. Future Employment. In consideration of the covenants and promises of the City as stated in this Agreement, Employee agrees to waive the right to seek or pursue employment, reinstatement and/or re-employment with the Releasees, and hereby certifies that Employee shall never seek or pursue employment, reinstatement and/or re-employment with the Releasees. Employee acknowledges and agrees that if Employee seeks employment, reinstatement and/or re-employment with the Releasees that such employment, reinstatement and/or re-employment shall be refused. Employee acknowledges and agrees that the Releasees are legally permitted to refuse to employ, reinstate and re-employ Employee. 7 Payments to Employee and Health Insurance. In exchange for the general release and indemnification set forth hereunder, the City agrees to pay Employee the following: A. Employee shall receive payment for his Paid Time Off (PTO) balance up to the date of his termination in accordance with City policy. Such PTO payment shall include payment for four hundred eighty (480) hours of PTO at Employee's effective hourly rate of $75.19 equal to the sum of$36,091.20, and subject to applicable withholding taxes. B. Employee shall receive six (6) month's severance pay equal to the sum of Mutual Separation Agreement& Release of All Claims City of Cape Canaveral / David L. Greene Page 3 of 6 $75,191.04, which is equivalent to half of Employee's last salary with the City. The severance pay shall be subject to applicable withholding taxes. Additionally, said severance is subject to termination upon written notice by the City if the City discovers that Employee, while acting as City Manager, had engaged in criminal conduct, gross negligence, or intentional reckless misconduct. C. The City shall pay the cost of COBRA for the Employee to continue City health insurance for up to six (6) months following termination: currently $834.99 per month x 6 = $5,009.94. 8. Non-Disparagement. Employee agrees to not make any oral or written communication to any person or entity which disparages, or has the effect of damaging the reputation of, or otherwise working in any way to the detriment of the Releasees. 9. Non-Disparagement Condition. Employee acknowledges that Paragraph 8 of this Agreement is a material provision to the Releasees for which consideration has been paid. Employee further acknowledges that the breach of Paragraph 8 will cause irreparable damage and injury to the Releasees. In the event Employee breaches Paragraph 8, the City will be entitled to seek any and all legal and/or equitable remedies against Employee and the breaching parties, including but not limited to injunctive relief and monetary damages. 10. Older Workers' Benefit Protection Act. Employee acknowledges and agrees that pursuant to the Older Workers' Benefit Protection Act ("OWBPA"), Employee has twenty-one calendar (21) days to consider this Agreement before signing it. Employee, after having the opportunity to consult with an attorney, understands and acknowledges that Employee may sign this Agreement prior to the expiration of the 21-day period if Employee so chooses. Pursuant to the Older Workers' Benefit Protection Act, Employee may revoke this Agreement after executed by providing written notification to the City's Attorney of such revocation within seven (7) calendar days of the date Employee signs it. To be effective, any notice of revocation must be received by the City's Attorney by 5:00 p.m. on the seventh calendar day after the Agreement is executed. This Agreement shall become fully binding and effective on the parties upon the expiration of the seven-day period, assuming Employee does not give notice of revocation in the manner provided above. Employee acknowledges having been given the opportunity to consult with an attorney prior to executing this Agreement and that Employee fully understands their rights under the Older Workers' Benefit Protection Act. 11. Voluntary Agreement. This Agreement is freely and voluntarily executed by the Employee after being made fully aware of all relevant information and data. In executing this Agreement, Employee does not rely on any inducements, promises or representations made by the City, Releasees or their attorneys, other than those expressly set forth herein. Furthermore, no promise, inducement or agreement not herein set forth has been made to Mutual Separation Agreement & Release of All Claims City of Cape Canaveral / David L. Greene Page 4 of 6 Employee, and this Agreement contains the entire agreement between the parties hereto. Employee acknowledges having read and understands the language of this Agreement. This Agreement has been fully negotiated in an arm's length transaction and shall not be construed against any party. 12. Severable Provisions. The provisions of this Agreement are severable. If any part is found to be unenforceable, the other provisions shall remain fully valid and enforceable and the remaining portions of this Agreement shall survive. 13. Governing Law. The parties agree that this Agreement is consummated in the State of Florida and that Florida law shall apply in construing any provisions hereof and in any proceeding between the parties. The venue of any dispute between the parties shall be in Brevard County, Florida in the court of appropriate and competent jurisdiction. 14. Entire Agreement. No other benefit or consideration shall be extended by the City or Releasees other than as expressly stated in this Agreement. 15. Attorneys' Fees and Costs. Each party shall bear their own attorney's fees and legal costs arising out or in furtherance of this Agreement 16. Counterparts. This Agreement may be signed and executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one Agreement. [EXECUTION PAGE FOLLOWS] Mutual Separation Agreement & Release of All Claims City of Cape Canaveral / David L. Greene Page 5 of 6 PLEASE READ THIS MUTUAL SEPARATION AGREEMENT & RELEASE OF ALL CLAIMS CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. THE PARTIES ARE ADVISED TO CONSULT THEIR RESPECTIVE ATTORNEY PRIOR TO SIGNING. EMPLOYEE: Dated: 7/i7 //2, � J-r David L. Greene STATE OF FLORIDA COUNTY OF BREVARD ACKNOWLEDGED AND AGREED TO BEFORE ME THIS day of , 2019 by David L. Greene who is personally known to me or who had produced as identification. Notary Public My Commission Expires: CITY: Dated: Bob Hoog, Mayor ATTEST: Mia Goforth, CMC, City Clerk Mutual Separation Agreement & Release of All Claims City of Cape Canaveral / David L. Greene Page 6 of 6