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HomeMy WebLinkAboutResolution - 2013-R0267 - Agreement - Lee Ann Dumbauld - Termination And Severance Agreement - 08/08/2013Resolution No. 2013-0267 August 8, 2013 Item No. 6.14 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Agreement by and between the City of Lubbock and Lee Ann Dumbauld, former City Manager, pertaining to her termination from employment with the City of Lubbock and her Severance Agreement, and related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council on ATTEST: Rebec a Garza, City Secretary OVED AS TO August 8, 201_1 Loomis, Acting City Manager APPROVED AS TO FORM: Sam Medina, City ttorney 2013. t -"� "// GLEN . OB TSON, MAYOR AGREEMENT This Agreement is entered into by and between the City of Lubbock, Texas ("City") and Lee Ann Dumbauld ("Dumbauld"). WHEREAS, the City Council terminated Dumbauld's employment as City Manager on July 15, 2013; and WHEREAS, there is a Severance Agreement between the City and Dumbauld dated September 21, 2005, that was approved by the City Council on that same date, that provides for the payment of certain benefits at the termination, of Dumbauld's employment and obligates Dumbauld to waive any rights to bring suit against the City; and WHEREAS, the parties desire to resolve any disputes that may exist between them; NOW THEREFORE, it is agreed as follows: Based upon the mutual covenants expressed herein, the City and Dumbauld agree as follows: 1. Payments. 1.1 Severance Payment: On the eighth day following Dumbauld's execution of this Agreement, the City shall pay Dumbauld the gross sum of $350,981.19 (the "Severance Payment"), as long as Dumbauld has not revoked this Agreement pursuant to Paragraph 6.2 of this Agreement. Dumbauld acknowledges and agrees that this Severance Payment does not constitute monies to which she would otherwise be entitled as a result of her prior employment with the City, and that these monies and the release by the City in Paragraph 5 constitute fair and adequate compensation for the promises and covenants of Dumbauld set forth in this Agreement. 1.2 Final Pay and Other Benefit Pay: On or before August 2, 2013, the City will pay to Dumbauld a final paycheck in the amount of $865.38 for the gross amount of salary due Dumbauld for the period prior to her termination. Dumbauld agrees the amount represents all accrued and unpaid salary and other compensation owed to her prior to her termination and that there is no other unpaid accrued salary or other owed to Dumbauld as of the date of this agreement. 1.3 Withholding for Taxes: All payments made under this Agreement will be subject to payroll tax and other mandatory withholding according to law. Such amount shall be withheld for the Severance Payment and paid by City according to law. The portion of the Severance AGREEMENT -PAGE 1 129383v1 Payment representing the City's contribution to the Texas Municipal Retirement System of $24,218.84 shall be paid by the City directly to the Texas Municipal Retirement System. 2. Release by Lee Ann Dumbauld. IN CONSIDERATION of the severance payment by the City to Dumbauld, as referenced in paragraph 1, Dumbauld does hereto enter into this Agreement and does hereby release, acquit, and forever discharge the City, its respective predecessors, successors, assigns, owners, City Council members, partners, members, managers, employees, directors, legal representatives, insurers, independent contractors, agents and attorneys (the "Releasees"), of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, expenses, services, actions, causes of action, or suit in equity, of whatsoever kind or nature, which Dumbauld now has, whether known or unknown, arising out or relating to her employment with the City. This release specifically includes, but is not limited to, the following: 2.1 Anti -discrimination statutes, such as the Age Discrimination in Employment Act ("ADEA") (which prohibits age discrimination in employment); Title VII of the Civil Rights Act of 1964 (which prohibits discrimination or harassment based on race, color, national origin, religion, or sex); the Equal Pay Act (which prohibits paying men and women unequal pay for equal work); the Americans With Disabilities Act, and the Rehabilitation Act of 1973 (which prohibit discrimination based disability); 42 USC Section 1981 (which prohibits discrimination based on race); Pregnancy Discrimination Act (if applicable); the Texas Commission on Human Rights Act (which prohibits employment discrimination in the State of Texas based on race, color, disability, religion, sex, national origin or age); Vietnam Era Veterans Readjustment Assistance Act; the Rehabilitation Act of 1973; the National Labor Relations Act and any other federal, state, or local law prohibiting employment discrimination, harassment, or retaliation of any kind. 2.2 Other laws, such as the Family and Medical Leave Act of 1993 ("FMLA"), which requires employers to provide leaves of absence under certain circumstances; the Worker Adjustment and Retraining Notification Act ("WARN"), which requires that advance notice be given of certain work force reductions; any federal, state, or local laws restricting an employer's right to terminate employees, or otherwise regulating employment; whistleblowing laws, the Sarbanes-Oxley Act (which prohibits retaliation against employees/whistleblowers including those who report or caused to be reported and those who assist in investigations concerning alleged violations pertaining to certain types of fraud, including securities fraud, involving public companies); the Texas Labor Code, including but not limited to claims for compensation under the Texas Payday Act and payment of benefits for on the job injuries; the Texas Whistleblower Act (which prohibits retaliation against public employees who report suspected violations of law); retaliation for filing any claim under federal, state or local laws; any federal, state, or local laws enforcing express or implied employment contracts or requiring employers to deal with AGREEMENT - PAGE 2 129383v1 employees fairly or in good faith; promissory estoppel; discharge in violation of public policy for refusal to commit an illegal act; and any wage payment and collection law. 2.3 Tort and contract claims, such as claims for wrongful or constructive discharge, retaliatory discharge, negligence, physical or personal injury, claims for worker's compensation or any on the job injury or illness, emotional distress, fraud, fraud in the inducement, negligent misrepresentation, defamation, libel, slander, invasion of privacy, interference with contract or with prospective economic advantage, breach of oral, express or implied contract, breach of covenants of good faith and fair dealing, and similar or related claims. 2.4 Other released claims, include, without limitation, claims: (i) under the Employee Retirement Income Security Act of 1974; (ii) for compensation, stock options, bonuses, or lost wages; (iii) in any way related to design or administration of any employee benefit programs; (iv) for severance or similar benefits or for post -employment health or group insurance benefits other than her rights under the federal continuation rights of COBRA or the Texas Continuation option; (v) vacation pay, pension or profit sharing benefits, health or welfare benefits, bonus compensation, commissions, deferred compensation or other remuneration (vi) for fees, costs, or expenses of any attorneys who represent or have represented Dumbauld; or (vii) any other state, federal or local laws relating to employment. 2.5 Unknown claims: Dumbauld understands that she is releasing the Released Parties from claims that have accrued prior to execution of this Agreement but that she may not know about as of the date hereof and that this is her knowing and voluntary intent even though someday she might learn that some or all of the facts she currently believes to be true are untrue and even though she might then regret having signed this Agreement. Dumbauld is expressly assuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Dumbauld expressly waives all rights she might have under any law that is intended to protect her from waiving unknown claims, and Dumbauld understands the significance of doing so. 3. FMLA and FLSA Rights Honored. Dumbauld acknowledges that she has received all of the leave from work for family and/or personal medical reasons and/or other benefits to which she believes she is entitled under the City's policy and the FMLA; that she has no pending request for FMLA leave; that the City has not failed to accommodate or grant leave to Dumbauld in any way because of any illness or injury to Dumbauld or any member of her family; and that she has received all monetary compensation, including hourly wages, salary and/or overtime compensation, to which she believes she is entitled under the Fair Labor Standards Act ("FLSA") or any state's wage payment law. AGREEMENT - PAGE 3 129383 v 1 4. ADEA Release Requirements Satisfied. Dumbauld understands that this Agreement has to meet certain requirements to validly release any ADEA (age discrimination) claims she might have, and Dumbauld represents and warrants that all such requirements have been satisfied. The City hereby advises Dumbauld that before signing this Agreement, she may take twenty-one (21) days to consider this Agreement. Dumbauld acknowledges that: (i) she took advantage of as much of this period to consider this Agreement as she wished before signing; (ii) she carefully read this Agreement; (iii) she fully understands it; (iv) she entered into this Agreement knowingly and voluntarily (free from fraud, duress, coercion, or mistake of fact); (v) this Agreement is in writing and is understandable; (vi) in this Agreement, she waives current age discrimination claims; and (vi) City hereby advises Dumbauld to discuss this Agreement with her attorney (at her own expense) prior to execution and she has done so to the extent she deemed appropriate. 5. City's Release of Dumbauld. The City hereby releases, acquits, and forever discharges Dumbauld, her heirs, executors, administrators, successors and assigns, legal representatives, insurers, agents and attorneys, of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, expenses, services, actions, causes of action, or suit in equity, of whatsoever kind or nature, which the City now has, whether known or unknown, arising out or relating to her actions during her employment with the City. The City acknowledges that this is a general release of known and unknown claims. 6. Review & Revocation. 6.1 Review: Before executing this Agreement, Dumbauld may take 21 days to consider this Agreement. Dumbauld acknowledges and agrees that her waiver of rights under this Agreement is knowing and voluntary and complies in full with all criteria of the regulations promulgated under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, and any and all federal, state and local laws, regulations, and orders. The City hereby advises Employee in writing to consult with an attorney prior to executing this Agreement. In the event that Dumbauld executes this Agreement prior to the expiration of the 21 -day period, she acknowledges that her execution was knowing and voluntary and not induced in any way by the City or any other person. 6.2 Revocation: For a period of 7 days following her execution of this Agreement, Dumbauld may revoke this Agreement. If she wishes to revoke this Agreement, she must revoke in writing delivered by hand or confirmed facsimile prior to the end of the 7`h day of the revocation period to Thomas C. Riney, 320 South Polk Street, Amarillo, Texas 79101-1426, fax number (806) 376-4509, or the revocation will not be effective. If Dumbauld timely revokes this Agreement, all provisions hereof will be null and void, including the payment in paragraph 1 above. If Dumbauld does not advise Mr. Riney in writing that she revokes this Agreement AGREEMENT - PAGE 4 129383 v 1 within 7 days of her execution of it, this Agreement shall be forever enforceable. The 8I' day following Dumbauld's execution of this Agreement shall be the Effective Date of this Agreement. This Agreement is not effective or enforceable until the revocation period has expired. Dumbauld acknowledges that she carefully read this Agreement, she understands completely its contents, she understands the significance and consequences of signing it, and she intends to be legally bound by its terms. Dumbauld acknowledges that she was given twenty-one (21) days to consider executing this Agreement and that she has been advised in writing to review this Agreement with legal counsel prior to signing it. She understands that, by entering into this Agreement, she does not waive rights or claims that may arise after the date of her execution of this Agreement, including without limitation any rights or claims that she may have to secure enforcement of the terms and conditions of this Agreement. Dumbauld certifies that she has agreed to and signed this Agreement voluntarily and of her own free will, act, and deed, and for full and sufficient consideration, which consideration is in addition to anything of value to which she is already entitled. 7. City acknowledges and agrees that Dumbauld, under the terms of the Severance Agreement, is entitled to make an irrevocable decision to accept or deny retiree insurance as described in the City's employee benefit plan, at the time of her termination of employment of the City. Dumbauld, by her signature below, has made an irrevocable election to accept retiree insurance and as such is eligible to obtain retiree insurance as afforded by the City employee benefit plan. 8. The Parties will report, as may be required by law for income tax purposes, their respective payment and receipt of the Severance Payment. Dumbauld will bear her tax liability, if any, arising from this Agreement. Dumbauld acknowledges that the City has made no representations to her regarding the tax consequences of any amount received by her pursuant to the terms of this Agreement. 9. Dumbauld acknowledges and agrees that nothing in this Agreement shall be construed as an admission of any liability for any claim in connection with Dumbauld's prior employment with the City, any violation of federal, state or local law, ordinance, regulation or statute, actual or implied breach of contract, commission of any tort or any other civil wrong. 10. This Agreement may not be modified or changed orally and shall be construed in accordance with the laws of the State of Texas. AGREEMENT -PAGE 5 129383v1 Dated: 7- 2 0/ — L3__ LEE ANN DUMBAULD SUBSCRIBED AND SWORN TO before me, the undersigned authority on thig�c4_v day of July, 2013. KED Notary ublic- State of xas wrmypuew STATE OF TOM MY Cmnmrrmm 0 o-mma / My Commission Expires: AGREEMENT—PAGE 6 129383v1 Dated: 08-07-1013 CITY OF LUBBOCK Z&�� GL . RO ERTSON, MAYOR � SUBSCRIBED AND SWORN TO before me, the undersigned authority on this q - k day of ,2013. y. CELIAWEBB Notary ublic- State of Texas Notary Public, State of Texas My Conib& on E)Ores MI.2014 My Commission Expires: 13-01. 2 D l AGREEMENT- PAGE 7 129383V1