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HomeMy WebLinkAboutResolution 2009-099 severance agreement Michael MencingerMARANA RESOLUTION N0.2009-99 RELATING TO PERSONNEL; APPROVING AND AUTHORIZING THE TOWN MANAGER TO EXECUTE A SEVERANCE AGREEMENT BETWEEN THE TOWN OF MARANA AND MICHAEL MENCINGER BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Town Manager is hereby authorized to execute, and the Town's staff is hereby directed and authorized to undertake all other and further tasks required to carry out the terms and obligations of a severance agreement between the Town of Marana and Michael Mencinger attached to and incorporated by this reference to this resolution as Exhibit A. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 23rd day of June, 2009. ATTEST: C. nson, Town Clerk Mayor Ed o ea APPROVED AS TO FORM: ~'Erank Cassidy, Town Atto ey ,, {00015320.DOC /} SEVERANCE AGREEMENT This Agreement effects an agreeable separation of the employment relationship between MICHAEL MENCINGER ("EMPLOYEE") and the TOWN OF MARANA ("EMPLOYER"), as well as resolution of any claims, known and unknown, now existing between the parties. The terms of this Agreement are as follows: 1. Resignation. EMPLOYEE will be allowed to resign from his employment with EMPLOYER effective July 3, 2009, in lieu of involuntary termination pursuant to a reorganization by EMPLOYER (hereinafter referred to as the "Resignation Date"). 2. Consideration. Upon execution of this Agreement, and in consideration for each of the terms of this Agreement, EMPLOYER will provide EMPLOYEE with the following: a. EMPLOYEE will be paid severance pay in an amount equal to 3% of EMPLOYEE'S annual base salary as of the Resignation Date multiplied by EMPLOYEE'S 6.67 years of service with EMPLOYER as of the Resignation Date, for a total amount of $18,703.74. b. EMPLOYEE will be paid for 100% of his unused, accrued sick leave as of the Resignation Date, calculated based on the EMPLOYEE'S annual base salary as of the Resignation Date. c. If EMPLOYEE elects COBRA (Consolidated Omnibus Budget Reconciliation .Act of 1985) continuation coverage through EMPLOYER'S COBRA administrator, EMPLOYER will pay 35% of EMPLOYEE'S COBRA premiums directly to EMPLOYER'S COBRA administrator on EMPLOYEE'S behalf to subsidize the cost of EMPLOYEE' S COBRA premiums for up to nine months. d. The amounts payable under paragraphs a and b, above, shall be paid in a lump sum, less applicable state and federal withholding taxes as required by .law. Payment shall be made by direct deposit to EMPLOYEE'S bank account currently on record with EMPLOYER within 5 business days after the Resignation Date or within 5 business days after expiration of the revocation period outlined in Section 8, below, whichever is later. e. If EMPLOYEE is deemed eligible for coverage by EMPLOYER'S life insurance carrier, EMPLOYEE will remain on EMPLOYER'S life insurance plan at EMPLOYER'S expense at one times EMPLOYEE'S annual base salary as of the Resignation Date for 12 months after the Resignation Date. 1 {oooisaio.DOC i} f. EMPLOYER does not make any representations as to the taxability of any item paid pursuant to paragraphs a, b, c and e, above, and EMPLOYEE agrees that he shall have sole responsibility and be liable for any federal or state taxes which may be required by virtue of his receipt of funds or benefits pursuant to this Agreement and agrees to indemnify and hold harmless EMPLOYER against any and all liabilities including but not limited to taxes due, penalties assessed for unpaid taxes or any costs or fees incurred by EMPLOYER should the taxability of any part of the payments or benefits be challenged by any taxing authority. g. EMPLOYER agrees to place a brick in the courtyard of the Marana Municipal Complex with the .inscription "Operations & Maintenance 2002-2009 Under the Direction of Mike Mencinger." 3. Release and Covenant Not To Sue. EMPLOYEE agrees that he will not initiate or cause to be initiated against the TOWN OF MARANA or any of its current, past, or future agents, attorneys, insurers, council members, elected officials, employees, subsidiaries, affiliated entities, or any person or entity acting by, through, under or in concert with it, in both their personal and official capacities, (collectively referred to as "Released Parties") any lawsuit, compliance review, action, grievance proceeding or appeal, investigation or proceeding of any kind (collectively referred to as "claims"), or participate in same, individually or as a representative or a member of a class, under any contract (express or implied), law or regulation (federal state or local), including but not limited to claims pertaining to or in any way related to his employment or termination of his employment with EMPLOYER. EMPLOYEE agrees that pursuant to this Agreement, he releases and forever discharges EMPLOYER and the other Released Parties from any and all claims, demands, damages, causes of action, and any liability whatsoever, including but not limited to claims on account of or in any manner arising out of EMPLOYEE'S employment or termination of employment with EMPLOYER. By way of example only, and without limiting this release, EMPLOYEE releases EMPLOYER and the other Released Parties from any cause of action, right, claim or liability under Title VII of the 1964 Civil Rights Act, as amended, the Family and Medical Leave Act, the United States Constitution or Arizona Constitution, the Arizona Wage Statute, the Arizona Civil Rights Act, the Arizona Employment Protection Act, the Americans with Disabilities Act, and any other equal employment opportunity law or statute, any due process or other constitutional theory, any Arizona statute, any federal statute, any common law claim including wrongful discharge, implied or express contract, the covenant of good faith and fair dealing, or any other claim in tort or contract arising under any theory of the law. EMPLOYEE understands and acknowledges that this release forever bars him from suing or otherwise asserting a claim against EMPLOYER or the other Released Parties on the basis of any event occurring on or before the effective date of this Agreement, whether the facts are now known or unknown, and whether the legal theory upon which such claim might be based is now known or unknown. 2 {oooiszio.DOC i} 4. Provision for Unknown Claims. EMPLOYEE warrants that he does not have any claim, charge, or complaint, either formal or informal, pending against EMPLOYER or any of the other Released Parties with any court, tribunal, administrative agency, governmental agency, or other such body. EMPLOYEE further waives any .right to monetary recovery should any administrative or governmental agency pursue any claim on his behalf. 5. Bar. EMPLOYEE agrees that this Agreement may be pleaded as a complete bar to any action or suit with respect to any claim under federal, state or other law including, but not limited to, any claim relating to his employment or termination of employment from EMPLOYER. 6. Indemnification. EMPLOYEE agrees to indemnify and hold harmless EMPLOYER and the other Released Parties from and against any and all loss, costs, damages or expenses, including without limitation, attorneys' fees, arising out of a breach of this Agreement or the fact that any representation made herein was false when made. 7. Denial of Liability. No provision of this Agreement shall be construed as an admission by EMPLOYEE or EMPLOYER of improper conduct, omissions or liability. 8. Notice of Time for Reflection. EMPLOYEE is advised as follows pursuant to the Older Workers' Benefit Protection Act, because he is over 40 years of age and in this Agreement he waives claims for age discrimination: a. This Agreement constitutes written notice from EMPLOYER that EMPLOYEE should consult with an attorney before signing this Agreement, and he acknowledges that he has fully discussed all aspects of this Agreement with his attorney to the extent he desires to do so. b. EMPLOYEE has carefully read and fully understands all of the provisions of this Agreement and he is voluntarily entering into this Agreement. c: As part of this Agreement, EMPLOYEE has been provided with consideration in addition to anything of value to which he is akeady entitled. d. Because he is over 40 years of age, prior to waiving claims for age discrimination that .EMPLOYEE may have under the Age Discrimination in Employment Act, he may take up to twenty-one (21) calendar days to consider this Agreement before signing it. e. Iri the event EMPLOYEE chooses to sign this Agreement prior to the expiration of 21 calendar days, EMPLOYEE .acknowledges that he 3 {oooiszio.DOC i} voluntarily and knowingly agrees to waive his entitlement to take 21 days to consider this Agreement for the purpose of expediting the payment outlined in Section 2, above. f. EMPLOYEE may revoke this Agreement within seven (7) calendar days after he signs this Agreement. If EMPLOYEE wishes to revoke this Agreement, he or his counsel will notify EMPLOYER in writing, addressed to Suzanne Machain, Human Resources Director, at the Town of Marana Municipal Complex at 11555 W. Civic Center Dr., Bldg. A3, Marana, AZ 85653, delivered on or before the expiration of the revocation period. g. If EMPLOYEE does not revoke this Agreement before the expiration of the seven-day revocation period, the Agreement will become irrevocably effective and enforceable on the eighth (8th) calendar day after EMPLOYEE signs it. h. EMPLOYEE is aware he is not waiving any rights or claims that may arise after the date this Agreement is executed. EMPLOYEE understands that he is waiving all rights and claims he has or may have under the Age Discrimination in Employment Act, 29 U.S.C. Section 626, et seq., and any other federal, state, or municipal law or regulation relating to age discrimination. 9. Return of Property. EMPLOYEE shall return all property of EMPLOYER in his possession, including, but not limited to, any keys for EMPLOYER's facilities as of the Resignation Date. 10. Complete Agreement. This Agreement sets forth the entire Agreement between the parties. 11. Choice of Law. This Agreement shall be construed, enforced, and governed by the laws of the State of Arizona. 12. Severability. Should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. 13. Effective Date. This Agreement is effective upon expiration of the seven-day revocation period outlined in Section 8, above. 4 {ooois2 io.DOC ~} S ***WARNING DO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND IT! THIS AGREEMENT INCLUDES A WAIVER OF YOUR RIGHTS!** TOWN OF MARANA By: j Gil ert Davidson Town Manager Date: ~,~~ ~~ ~' APPROVED AS TO FORM: --~_ airall eputy Town Attorney EMPLOYEE ""-~ By: c.Q. L~t.~.u.cvy+:~ Michael Mencinger Date: ,~G/t/E ~ ~, ~~~ S {ooois2io.DOC i}