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HomeMy WebLinkAbout2016-295 Agrmt - City Administrator - Resignation RESIGNATION AGREEMENT AND FULL RELEASE This Resignation Agreement and Release ("Release") is made and entered into this 21st day of November, 2016, by David R. Kanner, hereinafter ("EMPLOYEE") and the City of Ashland, its officers, directors and employees, hereinafter ("CITY") in order to permit the mutual benefit of severing employment and to fully resolve and settle all disputes between them. A. EMPLOYEE has been employed by CITY since February 27, 2012. The Mayor has requested EMPLOYEE to resign due to differences in organizational priorities, and in. response thereto, EMPLOYEE has agreed to tender his involuntary resignation. CITY has extended an offer to EMPLOYEE to end the employment relationship and accept EMPLOYEE'S resignation effective November 30, 2016. B. In consideration of the EMPLOYEE'S resignation, CITY agrees that 1. EMPLOYEE shall be provided with health benefits at the CITY'S expense through the end of August, 2017, and shall be afforded the right thereafter to continue Group Health Benefits consistent with the Consolidated Omnibus Budget Reconciliation Act (COBRA) legislation. 2. In addition to the specific consideration enumerated herein, EMPLOYEE shall receive all normal payouts, if any, associated with separation from City service in accordance with established CITY policies. 3. Further, EMPLOYEE shall receive a lump sum severance payment pursuant to his employment agreement equal to nine months' salary or $118,467.40, payable on November 30, 2016. 4. In response to any inquiry, CITY shall confirm that EMPLOYEE'S Resignation was furnished at the CITY'S request due to differences in organizational priorities with the Mayor. In response to inquiries from prospective employers, CITY will state that the EMPLOYEE resigned at the request of the Mayor due to differences in organizational priorities. CITY may also disclose the date of hire, date of separation, beginning wage and ending wage, and job title. Page 1- Resignation Agreement and Release - David R. Kanner 5. CITY agrees to respond truthfully to any inquiries made by the Employment Department regarding EMPLOYEE'S resignation from service. CITY will not oppose any application submitted by EMPLOYEE for unemployment benefits. 6. Upon the effective date of EMPLOYEE'S resignation, CITY releases EMPLOYEE from any claims, demands, causes of action, known or unknown, which CITY has or may have against EMPLOYEE. This is a comprehensive general release governing the City of Ashland and Mayor and Council members in their official capacities. C. In return, EMPLOYEE agrees to resign his position as City Administrator effective November 30, 2016. Upon that effective date, EMPLOYEE releases and settles any and all claims arising out of EMPLOYEE'S employment with CITY, including, but not limited to, the following release: EMPLOYEE, does hereby, for himself and his heirs, representatives, successors, and assigns, in his capacity as an individual and as a member of any current or future class, forever release the CITY, and each of its past and present employees, officers, directors, council members, commissioners, agents, representatives, attorneys, insurers, related entities, assigns, successors, and all persons acting by, through, under, or in concert with any of them (collectively, the "Releasees"), from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses (including back wages, and attorneys' fees and costs actually incurred) of any nature whatsoever, known or unknown, suspected or unsuspected, including, but not limited to, rights arising out of alleged violations of any contract, express or implied (including but not limited to any contract of employment, partnership, independent contractor, fiduciary, special or confidential relationship); any covenant of good faith and fair dealing (express or implied); any tort, including fraud and deceit, negligent misrepresentation, promise without intent to perform, conversion, breach of fiduciary duty, defamation, libel, slander, invasion of privacy, negligence, intentional or negligent infliction of emotional distress, malicious prosecution, abuse of process, intentional or negligent interference with prospective economic advantage, and conspiracy; any "wrongful discharge" and "constructive discharge" claims and any claims which EMPLOYEE now has, owns or holds, or claim to have, own or hold, or which EMPLOYEE at any time heretofore had, owned or held, or claimed to have, own or hold, or which EMPLOYEE at any time hereinafter may have, own or hold, or claim to have, against each or any of the Releases, which are in any way connected with, based upon, or arise out of EMPLOYEE'S employment with CITY up to and including the date of this Release. Page 2 - Resignation Agreement and Release - David R. Kanner This release includes but is not limited to claims for wages, monies, damages, attorneys' fees, emotional distress, stress, workers' compensation injury and occupational disease, discrimination, physical injuries, bodily injury, medical expenses, and reinstatement to employment. This release also includes any claim under state, federal, or local law or authority, including but not limited to any claim for additional compensation in any form and any claim arising under any Oregon or federal statutes pertaining to wages, condition of employment, wrongful discharge, retaliation, workers' compensation, or discrimination in employment, and including any claim under Oregon Revised Statutes Chapters 652, 653, 654, 656, and 659; Title VII of the Civil Rights Act of 1964; the Post Civil War Acts (42 USC 1981-1988); the Age Discrimination in Employment Act ("ADEA"); the Americans with Disabilities Act ("ADA"); the Equal Pay Act of 1963; the Fair Labor Standards Act; the Occupational Safety and Health Act; the Contract Worker Hours and Safety Act; the Older Workers Benefit Protection Act ("OWBPA"); Executive Order 11246; any regulations under or amendments of such authorities; and any applicable contract, tort, or other common law or statutory law theories. D. EMPLOYEE understands and agrees that this Release constitutes a full and final compromise, satisfaction and settlement of all claims and rights against CITY, in any way connected with, based upon, or arising out of his employment with CITY up to and including the date of separation of employment. E. EMPLOYEE acknowledges and agrees that that he has been advised of his right to consult with legal counsel in reviewing the terms of this agreement; and F. EMPLOYEE acknowledges his receipt of consideration beyond anything of value to which he is already is entitled; and G. EMPLOYEE has been given a reasonable period of time to consider the terms of this Resignation Agreement and Full Release. H. This Agreement may not be modified except in writing signed by each of the parties hereto, or their duly authorized representatives. 1. It is acknowledged and understood by the parties that the facts with respect to this Agreement as given may hereafter turn out to be other than or different from the facts in that connection now known to them or believed by them to be true, and the parties therefore expressly assume the risk of the facts being different and agree that this Page 3 - Resignation Agreement and Release - David R. Kanner Agreement shall be in all respects effective and not subject to termination or rescission by any such difference in facts. J. The parties acknowledge, warrant, represent, and agree that in executing and delivering this Agreement, they do so freely, knowingly, and voluntarily, that they had an opportunity to discuss its terms and the implications thereof with legal counsel, that they are fully aware of the contents and effect thereof and that such execution and delivery is not the result of any fraud, duress, mistake, or undue influence whatsoever. K. The parties acknowledge and agree that this Agreement contains the entire agreement and understanding concerning the subject matter between the parties and that this Agreement supersedes and replaces all prior negotiations and proposed agreements, whether written or oral. The parties warrant that no other party or any agent or attorney of any other party has made any promise, representation, or warranty whatsoever not contained herein to induce them to execute this Agreement. All parties represent that they have not executed this Agreement in reliance on any promise, representation, or warranty not contained herein. L. In the event of a material breach of the representations or the obligations set forth in the preceding paragraphs the prevailing party in any action brought to enforce the terms or conditions of this Agreement shall be entitled to recover all provable damages, consequential or otherwise, in addition to such other remedies as may be available under this Agreement at law or in equity as well as the prevailing party's attorney fees and costs, including fees and costs for any mediation, arbitration, administrative hearing or appeal. M. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the parties. N. All disputes arising from the interpretation, breach, performance, nonperformance, or exercise of rights or remedies of this Agreement shall be submitted to mediation with the use of a mutually agreeable mediator prior to either party seeking relief in a court. However, this section does not waive either party's right to seek injunctive relief. 0. This Agreement is made in the State of Oregon and shall be construed, interpreted and governed by the laws of this State. P. The provisions of this Agreement are severable; if any provision of this Agreement is held invalid or unenforceable, the Agreement shall be enforced to the maximum extent permissible and the remaining terms of the Agreement shall remain in full force and effect. Page 4 - Resignation Agreement and Release - David R. Kanner MEL- Q. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original. All counterparts shall constitute one agreement binding on all parties. R. Nothing in this agreement shall be construed as an admission of liability by either party, or its officers, agents, employees, representatives, successors or assigns. THE PARTIES HAVE READ THIS RELEASE AND AGREEMENT; THEY UNDERSTAND IT AND ARE SIGNING IT VOLUNTARILY. THEY ACKNOWLEDGE THAT THEY HAVE HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY PRIOR TO AGREEING AND SIGNING. Dated this day of November, 2016. t By. EMPLOYEE, D vid~R. Kanner Witness: By: John omberg, Mayor For CITY Page 5 - Resignation Agreement and Release - David R. Kanner CITY OF ^AS H LA N D Mayor John Stromberg November 21, 2016 Dave Kanner, City Administrator 20 E. Main Street Ashland, OR 97520 Re: Request for Resignation Dear Mr. Kanner: As we have discussed informally, I have reluctantly come to the conclusion that the time has come for the City to make a fresh start with a new City Administrator. Notwithstanding this conclusion, you have served the City of Ashland well during your tenure and have my personal gratitude for your dedication, integrity, and proactive tackling of many complex City issues. Because I believe change is now needed in the City's administrative leadership, this letter is to formally request that you submit your letter of record resignation with an effective date of November 30, 2016. Upon the Council's acceptance of your letter of resignation, the severance pay provision of your employment contract with the City will be triggered, and the Resignation Agreement and Full Release you and I have negotiated will be executed. Thank you for your service to the City and your professionalism. Sincerely, hn Stromberg, Mayor City Hall 20 East Main Street Ashland, OR ~j 541-488-6002 or 541-552-2104 /r 0100% Post-Consumer Content