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HomeMy WebLinkAboutResolution No. 471-04 • RESOLUTION BE IT RESOLVED by the Common Council of the City of Rochester that the City accept and approve the Separation Agreement and Release involving Larry Tjepkes. The Mayor, City Clerk and City Attorney are authorized to execute any documents necessary for the implementation of this resolution. PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER, MINNESOTA, THIS 01'0-�H DAY OF �$ZR, , 2004. c�u (DENT OF SAD COMMON COUNCIL ATTEST: C TY CLERK APPROVED THIS 2/5T DAY OF c to 1 b - , 2004. MAYOR OF SAID CITY (Seal of the City,of Rochester, Minnesota) Res2001Mettle.tjepkes • SEPARATION AGREEMENT AND RELEASE • THIS SEPARATION AGREEMENT is made and entered into between the CITY OF ROCHESTER ("City") and LARRY TJEPKES, an employee of the City ("Employee"). RECITALS: A. City employs Employee at City's Water Reclamation Plant in the position of Utility Driver. B. The City desires to eliminate the Utility Driver position at the Water Reclamation Plant as part of its effort to reduce the City's budget as a result of a reduction in local government aid from the State of Minnesota. C. This Separation Agreement sets forth the terms and conditions governing the separation of the employment relationship. AGREEMENT: In consideration of the recitals stated above and the mutual promises made below, the parties agree as follows: • 1. The Employee's personnel file at the City will reflect his status as separated due to position elimination effective April 9, 2004. 2. Within ten days of the expiration of the 15-day revocation period described in Section 14 of this Agreement, the City will make a payment to Employee of the gross sum of $32,978.00, which approximates nine months of salary. Those deductions required by law to be made from the Employee's salary will be made against this sum. In addition, the sum of $2,660.89 will be deducted from the gross sum of $32,978.00. This latter amount represents the outstanding balance owed by the Employee to the City as a result of the City's overpayment of salary to the Employee during a time the Employee was on Family Medical Leave. 3. Within ten days of the expiration of the 21-day time period described in Section 12 of this Agreement, the City will provide to the Employee a letter. This letter will provide the Employee's dates of service as a City employee, describe his job duties and responsibilities, and indicate that the City entered into this Agreement as it desired to eliminate the Utility Driver position in the • Water Reclamation Plant in an effort to reduce the City's budget as a result of a reduction in local government aid from the State of Minnesota. A copy of the letter which will be executed by the City is attached hereto as Exhibit A. 4. If the Employee's prospective employers should contact the City concerning the Employee's past service to the City, City employees and officials will refer the prospective employers' inquiries to the City's Human Resources Director who will be solely responsible for making verbal and written responses to the inquiries. 5. On behalf of the City, the City's Human Resource Director will comply with the provisions of Minn. Stat. §13.43 in responding to requests for personnel data concerning the Employee's employment with the City of Rochester. Pursuant to Minn. Stat. §13.43, subd. 10, nothing in this agreement restricts the City's ability to discuss, publicize or comment on personnel data or information which is otherwise accessible to the public. 6. Employee will not enter the City's Water Reclamation Plant unless the City invites him to do so. The Employee will not contact any of the City's Water • Reclamation Plant employees while those employees are working at the Plant. 7. In consideration of the payments and benefits provided by City as required by this Agreement, the sufficiency of which is hereby acknowledged, the Employee, for himself and his heirs, executors, and assigns, does hereby absolutely and unconditionally release and forever discharge City and any and all of its departments, divisions, directors, officers, employees and agents from any and all actions, suits, proceedings, claims (including, but not limited to, claims for attorney's fees), which Employee has ever had, presently has, or claims to have had against the City arising out of or concerning Employee's employment with the City including any events which led to the execution of this Agreement. Specifically, the Employee waives any and all claims he may have against the City pursuant to Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act of 1972; claims under the Civil Rights Act of 1991; claims under 42 U.S.C. §§1981, 1981a, 1983, 1985, and 1998; claims under the Age Discrimination in Employment Act; claims under the Family and Medical Leave Act of 1993; claims under the Americans with Disabilities Act of 1990, as amended; claims under the Rehabilitation Act of 1973, as amended; claims under the Minnesota Human Rights Act; claims under the Minnesota • Government Data Practices Act; claims under the Minnesota whistleblower statute; defamation claims; as well as claims under any other applicable federal, state or local statute or ordinance and any law of contract or tort existing at any time up to and including the date of this Agreement. 8. In return for the Employee's release, the City, its departments, divisions, directors, officers, employees and agents does hereby absolutely and unconditionally release and forever discharge Employee from any and all actions, suits, proceedings, claims (including, but not limited to, claims for attorney's fees) which the City has ever had, presently has, or claims to have had against the Employee arising out of or concerning Employee's employment with the City including any events which led to the execution of this Agreement. 9. Nothing in this Employment Agreement is intended to be, nor will be deemed to be, an admission of liability by the City that it has violated any state or federal statute, local ordinance, or principle of common law, or that it has engaged in any wrongdoing. Nothing in this Employment Agreement is intended to be, nor will it be deemed to be, an admission of wrongdoing of any kind on the part of the Employee. 10. The parties agree that this Employment Agreement will not be assignable by either party unless the other party agrees in writing. The Employee states that he has not assigned any claims she may have against the City to anyone else and agrees not to do so. 11. This Employment Agreement constitutes the entire agreement between the parties with respect to the termination of Employee's employment relationship with the City. The parties agree that there were no inducements or representations leading to the execution of this Employment Agreement except as stated herein. The parties agree that this Agreement supersedes all prior oral and written agreements and communications between the parties. 12. Employee acknowledges that he has had an opportunity to consult an attorney before signing this Agreement. He enters into and signs this Agreement knowingly, voluntarily, freely, of his own volition and with such consultation with legal counsel as he deems appropriate. Employee acknowledges that he has read this Agreement and understands all of its terms. Employee enters into and signs this Agreement knowingly and voluntarily, with full knowledge of its significance. Employee acknowledges `` • that, in executing this Agreement, he has not relied upon any representation or statement not set forth herein. Employee further acknowledges that, although federal law states the Employee must consider this Agreement and its terms for a minimum of 21 days, Employee agrees to execute this Agreement prior to the 21St day and acknowledges that this decision is made knowingly, voluntarily, without fraudulent inducement and without any threat to withdraw or alter the Agreement prior to the 21 st day. 13. This Agreement is made within Olmsted County, Minnesota, and shall be interpreted, construed and enforced in accordance with the laws of the state of Minnesota. If one or more paragraphs of this Agreement shall be ruled unenforceable, the remainder of the Agreement shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the unenforceable paragraph. This Agreement is not effective or enforceable until the 15-day revocation period, described below, has expired. 14. In connection with Employee's waiver of rights under the Minnesota Human Rights Act and the Age Discrimination in Employment Act, Employee retains the right to rescind his approval and execution of this Agreement for a 15- • day period following execution of this Agreement. Dated at Rochester, Minnesota, this day of , 2004. Larry Tjepkes Ardell F. Brede Mayor Judy K. Scherr City Clerk STATE OF MINNESOTA ) SS COUNTY OF OLMSTED ) I, a notary public, do hereby certify that Larry Tjepkes, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me in person and acknowledged that he signed and delivered the said instrument as her free and voluntary act, for the uses and purposes therein set forth. Dated this day of , 2004. NOTARY PUBLIC STATE OF MINNESOTA ) ) SS WOUNTY OF OLMSTED ) On this day of 2004, the foregoing instrument was acknowledged before me by Ardell F. Brede and Judy Scherr, the Mayor and City Clerk, respectively, of the City of Rochester, a Minnesota municipal corporation on behalf of the corporation. NOTARY PUBLIC This instrument was drafted by: Office of the City Attorney 201 4th Street S.E., Room 247 Rochester, MN 55904-3780 285-8066 eAwp\k\sever.12 0 s Dear Re: Larry Tjepkes Larry Tjepkes was employed as a Utility Driver at the time of his termination on 4/9/04 from the Water Reclamation Plant (WRP), when the position that he held was eliminated as one part of budgeting cutting measures in response to a reduction in State aid to the City of Rochester. He had been employed by WRP, a division of City of Rochester Public Works, in various • positions since his date of hire, 11/25/91. His responsibilities at the time of his termination included the safe and efficient operation of semi-tractor trailers and sludge application equipment,preventive maintenance of vehicles, general plant maintenance, and the performance of other related duties as required. Sincerely, Linda Gilsrud Director of Human Resources City of Rochester (507) 281-7380