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Resolution 2019-17 Resolution No.2019-17 A RESOLUTION APPROVING A TRANSITION AGREEMENT AND MUTUAL RELEASE BE IT RESOLVED, by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the TRANSITION AGREEMENT AND MUTUAL RELEASE attached hereto and made a part hereof by reference as Exhibit A, is hereby approved, and John Purcell, Mayor, and Lisa Pickering, City Clerk, be and are hereby authorized to execute said agreement on behalf of the United City of Yorkville. Section Z. This Resolution shall be in full force and effect upon its passage and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this 28th day of May, 2019. CITY CLERKU KEN KOCH ABSENT DAN TRANSIER AYE JACKIE MILSCHEWSKI AYE ARDEN JOE PLOCHER AYE CHRIS FUNKHOUSER AYE JOEL FRIEDERS AYE SEAVER TARULIS ABSENT JASON PETERSON AYE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois,this '31 sf day of M4Y , 2019. MA Resolution No.2019-17 Page 1 TRANSITION AGREEMENT AND MUTUAL RELEASE This TRANSITION AGREEMENT AND MUTUAL RELEASE(Agreement") is entered into by and between POLICE CHIEF RICHART T.HART("Employee")and the UNITED CITY OF YORKVILLE, a municipal corporation (the "City"). Employee and the City are sometimes collectively referred to as the("Parties")and each is individually referred to as a"Party". AGREEMENT NOW, THEREFORE, for and in consideration of the provisions, covenants and mutual promises contained herein,the Parties hereby agree as follows: 1. Employment Status. a. Employee and the City entered into an "Employment Agreement" that covered the period from May 12,2015 through and including May 13,2019 which is the date that the then-sitting Mayor's term expired. b. On May 14, 2019 the Employee's employment with the City and its Police Department was continued on a temporary, "at will" basis while the City searches for Employee's successor in the role of Chief of Police. There is nothing in this Agreement that alters Employee's status as an "at,will employee"of the City. C. Employee will continue to perform services as Police Chief to the City during the period from May 14,2019 through the date that the City's Mayor provides written notice to the Employee informing him of his desire to end their employment relationship for any or no reason, but in no event later than November 30, 2019. This period is referred to in this Agreement as the"Transition Period". d. The day that immediately follows the end of the Transition Period will be referred to as Employee's voluntary "Retirement Date". As of the Employee's Retirement Date,Employee will be permanently relieved of all authority and responsibility to perform services for the City except as provided in Section#3(b)and(c)below. 2. Consideration/Payment for Services During the Transition Period: a. Throughout the Transition Period, Employee will receive his normal base pay (including the longevity payment available to him pursuant to City policy)that was in effect as of the start of the Transition Period(5/14/19). b. Throughout the Transition Period,Employee will continue to participate in the City's benefit programs(including but not limited to health, life,dental and vision insurance for Employee and his eligible dependents)on the same basis as other similarly situated employees who are employed as a Department Head with the City. 1 C. As of the Employee's Retirement Date, Employee and his eligible dependents will continue to be eligible to participate in the City's group health insurance program pursuant to the COBRA provisions of federal law. Employee will receive a letter at his home address from the City that sets forth the manner in which Employee may obtain COBRA covered for Employee and his eligible dependents through the City's benefit portals. d. As consideration for Employee's promises in this Agreement,the City will reimburse Employee for the premium costs he incurs to obtain health insurance coverage for Employee and his eligible dependents during the period from his Retirement Date through the earlier o£ (i) the date that is six (6) months after the Employee's Retirement Date, or (ii) the date that Employee obtains health insurance coverage for Employee and his eligible dependents from another employer (the "Health Insurance Payments"). Provided, however, Employee is required to do all of the following: (i) remain in compliance with his obligations under this Agreement and the Addendum,(ii)pay his share of the premium costs as if he were still actively working, and(iii)comply with the applicable laws to be eligible to receive the Health Insurance Payments. e. Throughout the Transition Period, Employee will continue to have access to a City owned take home vehicle for his work and personal use subject to Employee's compliance with the terms of City's published Take Home Vehicle Policy and all applicable laws related to the use of said vehicle. 3. Employee Obligations. In return for the promises of the City as set forth herein including the City's willingness to provide the Health Insurance Payments and other privileges in this Agreement to Employee: a. During the Transition Period, the Employee will perform such services as directed from time to time by the Mayor of the City. Employee agrees to perform such services in good faith and he will report directly to the Mayor throughout the Transition Period. b. After his Retirement Date,Employee agrees to make himself available from time to time upon reasonable prior request of either the Mayor (or his designee)and/or the Employee's successor in the role of Chief of Police(or his/her designee)to answer questions or assist with brief discussions related to matters that were within Employee's knowledge about the City and/or its Police Department. C. Among the specific forms of cooperation that Employee will provide to the City (and its Police Department) after his Retirement Date pursuant to this Paragraph#3 includes Employee's promise to fully cooperate with the City in the preparation and defense of any claims,grievances, lawsuits or causes of action that were pending against the City(and/or the Police Department) related to matters that arose during the period in which Employee served as 2 Police Chief. Employee acknowledges that the Health Insurance Payments and other consideration set forth in this Agreement are sufficient consideration to support Employee's promises in this Agreement (and the Addendum) and adequate compensation for any services provided by Employee after his Retirement Date pursuant to this Paragraph#3. d. Employee agrees and acknowledges that the benefits and other privileges made available to him by virtue of this Agreement constitute adequate and sufficient consideration to support all of Employee's promises in this Agreement and the separate Addendum referenced in Section#14 below. 4. Additional Consideration.In addition to the Health Insurance Payments and other privileges referenced above: a. As of the date of execution of this Agreement by Employee, the Parties agree and acknowledge that Employee had earned and unused paid vacation and/or sick time available for his use pursuant to the City's published personnel policies (the "Paid Time Off'). On the first full payroll period that is at least one full month after the effective date of Employee's Retirement,Employee will receive a payment equal to the full value(100% payment) of any remaining hours of Paid Time Off that Employee accrued prior to his Retirement Date. Upon Employee's receipt of this Paid Time Off payment,Employee acknowledges that he will have been fully paid and at all applicable rates for all earned benefit time available to him arising out of his employment relationship with the City. All such payments will be subject to normal and legally required payroll and other deductions. b. The City will issue Employee a retirement I.D. card, and badge in accordance with the terms and policies applicable to other similarly situated employees who retire from the Department. The items referenced in this Section #4 will be made available to Employee within seven (7) calendar days of the effective date of the Addendum referenced in Section#14 below, provided Employee timely executes that document (and this Agreement) and does not revoke his acceptance pursuant to its/their terms. 5. Mutual Releases. a. Except for a claim based upon a breach of this Agreement, Employee does hereby fully, finally, and unconditionally release and forever discharge the City's Released Parties (defined below) from any and all actions or claims accruing through the time of execution of this Agreement by Employee. By way of explanation,this release by Employee resolves all claims,liabilities, suits, discrimination or other charges, workers' compensation cases, demands,debts,liens.damages,costs,grievances,injuries,actions or rights of action of any nature whatsoever, known or unknown,whether related or unrelated to his employment, the separation of his employment, any statements made by or alleged to have been made by or on behalf of any of 3 the City's Released Parties regarding Employee's employment or prior to Employee's execution of this Agreement. Employee further waives the reasons for Employee's separation, and/or any other matter accruing any right to any form of recovery, compensation or other remedy in any action brought by him or on his behalf against any of the City's Released Parties. b. Except for a claim based upon a breach of this Agreement, the City, for itself, and on behalf of its respective parents, subsidiaries, divisions, partners,joint venturers, and/or affiliated businesses or entities of the City on behalf of its past and present directors, officers,board members, agents, attorneys, employees, representatives, trustees, administrators, and fiduciaries, acting in their official capacities as representatives of the City does hereby fully,finally,and unconditionally release and forever discharge Employee and his respective agents. attorneys, heirs, executors, administrators and legal representatives ("Employee Released Parties"), from any and all actions or claims accruing prior to the City's execution of this Agreement. By way of explanation,this release by the City resolves all claims, liabilities, suits or other charges,personal injuries, demands, debts, liens,damages,costs,grievances, injuries,actions or rights of action of any nature whatsoever, known or unknown, whether related or unrelated to Employee's employment or separation of employment, occurring and/or accruing prior to the City's execution of this Agreement. The City further waives any right to any form of recovery,compensation or other remedy in any action brought by it or on its behalf. C. Without limiting the foregoing terms,this Agreement specifically includes all claims arising from any federal, state or local constitution, statute, regulation, rule, ordinance, order, public policy, contract or common law, including but not limited to any claim of privacy, defamation or wrongful termination, all claims under 42 U.S.C. 1983, the Age Discrimination in Employment Act as amended ("ADEA"), the Family and Medical Leave Act as amended, the Illinois Human Rights Act (such as discrimination claims based on Employee's marital status, alleged or perceived disability or any other legally protected category), and the Americans with Disabilities Act as amended. d. In addition to releasing the causes of action set forth above,this Agreement releases all claims for equitable and legal relief,attorneys'fees and costs.In particular, this Agreement is intended to be a resolution of any possible claims to the fullest extent of the law through the time of execution of this Agreement by Employee and the Parties agree that neither party is a "prevailing party." Moreover,the Parties specifically intend and agree that this Agreement fully contemplates all claims for attorneys' fees and costs, and hereby waives,compromises,releases and discharges any such claims. e. Employee agrees that this release includes all claims and potential claims against the City, all Departments of the City and all members of the City 4 Council, including its/their predecessors, successors,heirs, and assigns,and its/their past, present and future directors, officers, elected or appointed officials, members, agents, attorneys, employees (including without limitation the City's present and former Chiefs of Police and the City's current and previously elected Mayors) and all of the committee members, commissioners, administrators, fiduciaries and insurers, jointly and severally,in their individual,fiduciary and corporate capacities(collectively referred to as the "the City's Released Parties"). f. Specifically exempt from the releases under this Section#5,however,is any requirement or obligation that the City and/or Employee has to cooperate under any statute, regulation, or funding agreement, including, but not limited to,the Illinois Governmental Ethics Act or otherwise. g. This Section#5 does not restrict Employee from pursuing a claim under the tender back provisions of the ADEA in the event he alleges and that he did not knowingly and/or voluntarily enter into this Agreement, except as provided by law. 6. Non-disparagement. a. To the best of their knowledge,the Parties agree Employee is not the subject of any internal or external investigation of misconduct as of the "Effective" date of this Agreement,as defined in Section#12 below. b. Employee agrees not to make any disparaging or defamatory remarks regarding the City's Released Parties whether orally, in writing, or via electronic means (e.g., social media or blogging). This paragraph shall not apply to any communications between Employee and his spouse,immediate family, accountants and attorneys, or as expressly authorized by law or lawful process. C. The City likewise agrees that the City's Administrator and the City's Mayor will not make any disparaging or defamatory remarks regarding Employee's employment history with the City. 7. Representation & Warranties. Except as provided above, the Parties represent and warrant that neither has filed nor will they file any claims against the other Party (including the Employee Released Parties and the City Released Parties), and that each Party's obligations under this Agreement, including the payment of monies, are conditioned upon this representation. Employee represents that in negotiating the terms of this potential agreement, he has not already disclosed the proposed terms to any third-parties(except to his attorneys(s)),nor has he disclosed any confidential information that he was obligated to maintain while a City employee. Employee represents and warrants further that there are no unreported work-related injuries or illnesses and that he has been allowed to take all medical leaves of absence that he has sought. 8. Confidentiality Oblieations: 5 a. Employee understands and agrees that while he was employed by the City, he had an obligation to maintain certain confidential information,including but not limited to,information that is subject to the attorney-client privilege. As a further inducement for the City to enter into this Agreement,Employee agrees to continue to maintain all such confidential information as confidential, and agrees not to use, reveal, report, publish, post on the internet or Intranet, disclose or transfer, directly or indirectly, any of the City's confidential information for any purpose except as expressly authorized by the then appointed City Administrator (or designee). Employee also agrees to take all reasonable measures to prevent the unauthorized use, misappropriation and/or disclosure of the City's confidential information and to prevent unauthorized persons or entities from obtaining, misappropriating or using the City's confidential information(in any form). b. Upon his Retirement Date, Employee shall promptly return all the City information and materials and tangible information or property owned by the City,including any and all manuals,notes,plans,credit cards,keys,pass cards, computer files, lists, reports, proposals, technical information, and reproductions thereof which relate in any way to the City's operations, business assets, employee files or records, or any of the foregoing items covered by this paragraph. Employee shall also promptly provide the City with the passcode to any cellphone, laptop computer I-pad or other computerized device to which he has been assigned (hereinafter, the "Yorkville Computerized Devices"). Upon request of the Mayor (or designee), Employee will provide the City with the passcodes to all Yorkville Computerized Devices and he will answer questions presented to him about the types and extent of which he obtained access to information of the City following his Retirement Date. C. Upon the Retirement Date, Employee will no longer have access to or privileges to use any City vehicle for any purpose. 9. Complete Agreement. Employee understands this Agreement (and the Addendum) sets forth all of the terms and conditions of the agreement between the Parties and that, in signing this Agreement. Employee cannot rely and has not relied upon any prior verbal statement regarding the subject matter,basis or effect of this Agreement,and that all clarifications and/or modifications of this Agreement must be in writing and signed by both parties to be effective as to Employee. 10. Neutral Construction. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against either of the parties regardless of the drafter. This Agreement supersedes any and all prior agreements, understandings and communications between the Parties. 11. Non-Admission. This Agreement shall not be construed as: (a) an admission by the Employee Released Parties or the City Released Parties of any: (i) liability or wrongdoing,(ii) 6 breach of any agreement, or (iii) violation of a statute, law or regulation; or (b) a waiver of any defenses as to those matters within the scope of this Agreement. 12. Time to Consider Agreement. Employee understands that he been given twenty one (21) days from the date this Revised Agreement was presented to consider and sign this Agreement(the "Consideration Period'), and Employee agrees that this Consideration Period has been reasonable and adequate. Employee hereby waives the right to any remaining days in the Consideration Period, and agrees the Consideration Period is expired as of his execution of this Agreement. Following his execution of this Agreement, Employee will have seven(7) days from the date he signs this Agreement to revoke it if he so desires (the "Revocation Period'). This Agreement shall not become effective or enforceable until the Revocation Period has expired(the "Effective Date"). If Employee has not communicated his acceptance of this offer to the City before the expiration of this Consideration Period,this offer automatically expires at that time,and the City is not required to take any further action to rescind or otherwise withdraw the terms of this Agreement. 13. Release Addendum. As a material condition of this Agreement, Employee also agrees to timely execute and comply with the terms of a separate Release Addendum that includes a release and waiver of claims and causes of action rights that is identical to the language contained in Section#5 of this Agreement to cover the period from the date of Employee's execution of this Agreement through and including Employee's Retirement Date. 14. Right to Counsel.Employee understands that he was informed of this right and he acknowledges that he has been advised by competent legal counsel of his own choosing in connection with the review and execution of this Agreement. Employee also agrees that had the opportunity to be represented by counsel of his choice respect to all matters arising out of his employment that arose through the time of execution of this Agreement by Employee. Employee also acknowledges and agrees that he has had an opportunity to and did negotiate over the teens of this Agreement through his attorneys)and the attorney(s)for the City. 15. Employee's Acknowledgments.Employee states that he has completely read this Agreement and acknowledges that it has been written in a manner that Employee has understood its contents. Employee freely, voluntarily and without coercion enters into this Agreement. Further, Employee agrees and acknowledges that he has had the opportunity to investigate all matters pertaining to any claims he might have and that the waiver and release of all rights or claims he may have under any local, state or federal law, and under any contract or other agreement, is knowing and voluntary. 7 16. City Council Approval. The City's obligations under this Agreement are subject to the approval of the authorized representatives of the City Council. READ CAREFULLY. THIS DOCUMENT CONTAINS A FULL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO THE FULLEST EXTENT OF THE LAW RICHA T UNITED CITY RKVILLE Date: 'S f 5 Date: J ,� 8 RELEASE ADDENDUM This Release Addendum ("Addendum") is entered into by and between RICHARD T. HART ("Employee") and the UNITED CITY OF YORKVILLE ("Yorkville"). In consideration of the mutual promises and obligations contained herein,the Parties agree as follows: 1. The Parties entered into an Agreement and Mutual Release ("Agreement") that is attached to this document whereby the City agreed to provide specific consideration to Employee in exchange for his promises reflected in both that Agreement and this Addendum. Employee acknowledges and agrees that the Health Insurance Payments as set forth in the Agreement constitute adequate legal consideration for Employee's promises contained in this Addendum as well as the Agreement. 2. Pursuant to Section #13 of the Agreement, Employee promised to execute this Addendum which constitutes a full and complete waiver of any and all claims which Employee may have against any of the Released Parties (as defined in Section #6 of the Agreement) and which may relate to or arise out of any act or omission of any of the Released Parties that arose from the time of Employee's execution of the Agreement through and including Employee's actual last day of active employment with the City (which will be no later than November 30,2019). 3. This waiver includes,without limitation, a complete waiver of any and all claims that were or could have been raised by Employee and/or on his behalf, including (without limitation)any claim or cause of action based upon or arising out of any of the laws or causes of action identified in Section#5 of the Agreement. 4. Further, in the event of an Employee breach of this Addendum(and/or the Agreement), the Parties agree that Employee will not have truly earned any of the consideration, further consideration or other privileges referenced in the Agreement (and/or this Addendum). 5. It is expressly understood and agreed that, by entering into this Addendum, the Released Parties do not in any way,either directly or indirectly,admit to any violation of or liability under any law, regulation, policy or contract, and Employee acknowledges that no such violation has occurred. 6. Employee declares that: (a) he has read and understands all the terms of this Addendum; (b)Employee,having received this Addendum at the time he received the Agreement; (c)Employee cannot execute this Addendum prior to his Retirement Date after which he can sign and return it to the City; (d) no promise, inducement or agreement has been made except as expressly provided herein (and/or in the Agreement); (e) it contains the entire agreement between the parties (including the Agreement and all other agreements incorporated therein);(f)Employee acknowledges that he was given at least 21-days to consider the terms of this Addendum and at least 7 days after he signed this Addendum (but not prior to his Retirement Date) during which he may revoke his acceptance of this Addendum if he 9 so desires;and(f)Employee entered into this Addendum fully,voluntarily,knowingly and without coercion. RIC T. T UNITED CITY OF VILLE Date: t3(7 arc) I cl Date: J V 10