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20-800ORDINANCE NO. 20-800 AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE MAYOR TO EXECUTE A SEPARATION, RELEASE, AND WAIVER AGREEMENT WITH HOLLY FOX; AUTHORIZING EXPENDITURES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton and Holly Fox entered into an Employment Agreement on February 11, 2019 for Holly Fox to serve as Presiding Municipal Court Judge for the City of Denton; and WHEREAS , the City of Denton and Holly Fox mutually desire to terminate the employment relationship; and WHEREAS, the City Council fmds that the termination of the Employment Agreement with Holly Fox is in the best interests of the public; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this Ordinance are incorporated into the body of this Ordinance. SECTION 2. The City Council authorizes the Mayor of the City of Denton to sign a Separation, Release, and Waiver Agreement with Holly Fox in substantially the same form as attached hereto as Exhibit A . SECTION 3. City expenditures provided for the in the Separation, Release, and Waiver Agreement are hereby authorized . SECTON 4. This Ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by £; ,~-f ~ "f,S" and seconded by f.r s--s.t ./~0 ''5 'the ordinan;was p as£" and approved by the following v te ~-LJ : Nay Abstain Absent Chris Watts, Mayor: Gerard Hudspeth, District 1: Keely Briggs, District 2 : Jesse Davis, District 3: John Ryan, District 4: Deb Armintor, At Large Place 5: Paul Meltzer, At Large Place 6: PASSED AND APPROVED this the d/ d day of ~~ , 2020. /'~~ C~ATTS,MAYOR ATTEST: ROSA RIOS, CITY SECRETARY BY:~~~ APPROVED AS TO LEGAL FORM: SEPARATION, RELEASE AND WAIVER AGREEMENT This Agreement is between Holly Fox ("Employee") and the City of Denton. Texas and its authorized governing body , the Denton City Council ('1he City''), and constitutes the full and complete terms of their agreement (the "Agreement"), and supersedes any and all other oral or written agreements which the parties may have made concerning Employee 's employment and/or this same subject matter. I . Employee agrees and acknowledges that, effective March 31. 2020, after the City Council approves this Agreement, she has resigned her position of Presiding Judge of the City of Denton Municipal Court, a Council-appointed position, and will provide a written notice of resignation prior to the finalizat ion of this Agreement, which shall be attached as exhibit A. 2. Regardless of whether Employee signs this Agreement, if Employee resigns or is otherwise separated from employment, Employee will receive a final paycheck for wages earned as of close of business on the effective date of separation, plus the cash value of accrued vacation as of that date (143 hours-effective March 31 , 2020), less normal payroll deductions . Employee agrees that, except for the payments made and benefits provided in this paragraph , Employee is not entitled to any other benefits, compensation, or payments from the City outside of this Agreement. 3. In exchange for the promises contained in this Agreement, the City agrees to provide Employee with the following special separation benefits: a. A severance payment equal to 42 weeks of Employee 's base wages, totaling $105,000 and $13,206.38, less appropriate payroll taxes and deductions, and less TMRS 7% employee contribution, to be paid in a lump sum payment, less the amount specified for attorney 's fees in paragraph 3.b .• below , to Employee after her employment with the City ends, on or about ten days after the City receives an executed back a signed copy of this Agreement from Employee. This special separation benefit is over and above any final compensation otherwise provided in Employee's final paycheck upon separation from employment. b. A payment of $27 ,840.6 1 to Kilgore & Kilgore , PLLC, Employee's attorneys, from which a Form W-9 has been rece ived . c. If Employee properl y and timely elects COBRA continuation, the City will continue to pay premiums on Employee's behalf to it s self-insured plan for Employee's and her children's current level of medical, dental and vision insurance for up to ten months , or as long as she retains and/or remains eligible for COBRA continuation, whichever is shorter. d. $6,000 ICMA contribution, less applicable tax deductions. e. $16,825.45 TMRS contributions on Employee's behalf (City 's matching funds- 17.46%)-based on severance amount less attorney's fees. 4. Employee agrees that providing the special separation benefits described in paragraph 3 of this Agreement upon an employee's separation is contrary to the City's normal policy, and in exchange for such good and valuable consideration, Employee further agrees to release and waive any and all claims Employee has or which may arise by virtue of Employee's employment with or separation from the City , whether known or unknown at the time of this Agreement, and Employee releases the City and its officers, elected officials , representatives and employees from any such claims. Such claims include , but are not limited to, breach of contract, tort , and any and all claims which might arise under local , state, or federal fair employment practices or employment benefit laws , and workers' compensation law as of the date of this Agreement, including but not limited to claims under the Age Discrimination in Employment Act, and Employee agrees not to file any lawsuit on account of Employee's employment with or termination from the City . 5. This Agreement does not waive Employee 's right to apply for or claim unemployment compensation insurance, although the City reserves the right to dispute such claim. The City agrees that it will not dispute the claim based on misconduct, and will report to the Texas Workforce Commission in response to a claim that Employee resigned by agreement of the Parties. Employee further understands that nothing in this Agreement shall prohibit her from filing a claim with the Department of Labor or similar state agency, or cooperating in such agency's investigation or proceeding, although Employee acknowledges that Employee has waived such claims and will be barred from obtaining any monetary or other relief from or against Employer. 6. This Agreement will be part of the public record pursuant to Texas Open Meetings and Public Information Acts, and confidentiality of its terms will not be possible. However, Employee and the City agree to keep the circumstances under which this Agreement came about confidential , as allowed by law. If either Party is asked about such circumstances or disagreements, they may state that the parties have mutually resolved such disputes, and nothing more can be said. For purposes of this confidentiality clause, the "City" includes its Council Members, City Manager, Assistant City Managers , City Attorney (who will instruct his staff to do the same), and Human Resources Director(who will instruct her staff to do the same). 7. The Employee and the City agree that the separation of Employee's employment and the execution ofthis Agreement are not admissions of guilt or wrongdoing on the part of either party . 8. The City agrees, except as may be required by law , that if a prospective employer of Employee contacts the City's Director of Human Resources. only a neutral reference will be provided. Such neutral reference includes confirming a) Employee's verification and dates of employment with the City, b) Employee's last position with the City, c) Employee's last salary with the City. Employee understands that Employee must direct prospective employers to the City's Human Resources Department only for such official neutral reference, and is not responsible for informal references provided by individuals. 9. The City further agrees not to make disparaging remarks about Employee except when truthful and required by law. For purposes of this non-disparagement clause, the "City" includes its Council Members, City Manager, Assistant City Managers, City Attorney (who will instruct his staff to do the same), and Human Resources Director (who will instruct her staff to do the same) 10. Employee agrees not to make disparaging remarks , whether individually or through representatives, and whether oral, written or electronic, whether to the community or on social media, about the City or its employees or officials, except as required and truthful in response to a valid subpoena or government agency request, or when speaking as a public citizen within Employee's First Amendment rights . Employee agrees that violating this clause will be considered a breach of this Agreement, and will cause any future obligations of the City under this Agreement to cease , and would give rise to an action by the City to seek reimbursement of payments made and other related damages. 11 . Employee acknowledges that Employee has had acces s to confidential and/or privileged information of the City as a re sult of the employment. Employee agrees that the City would be severely and irreparably damaged if Employee used or disclosed this information and that the City will be entitled to an injunction prohibiting Employee from committing any such violation. 2 Employee hereby agrees not to use or disclose to anyone any confidential infonnation of the City at any time in the future without the prior written authorization ofthe City . 12. Pursuant to applicable taw, Employee is hereby provided a period of 21 calendar days from the day Employee r~ceives this Agreement to consider this Agreement. Employee acknowledges having received this Agreement on March 31 , 2020. This Agreement will expire on April 11, 2020. I 3. Pursuant to applicable law, this Agreement may be revoked by Employee for n period of seven calendar days following Employee's execution of this Agreement. To effectively revoke this Agreement, Employee must deliver a written notice of revocation to the City. attention: Tiftany Thomson, City's Hwnru.1 Resource Director. so that It is received within the seven-day period. This Agreement shall not be effective or enforceable until the revocation period has expired Revocation will cancel any obligation on the part of the Ciiy to provide the benefits of this Agreement, but will not revoke Employee's resignation. 14. Employee is advised to consult with an attoruey, and has done so, before signing this Agreement. Employee has entered into this Agreement voluntarily and knowingly, and has been given an opponunity to review it with an attorney if desired. 15. This Agreement shall .. in all respects , be interpreted, enforced and governed under the laws of the State of Texas. Any suit, claim or other legal proceeding arising out of or relating to Employee's employment or this Agreement shall be brought exclusively in state or fedeml courts serving Denton County, Texas, and Employee and the City hereby submit to personal jurisdiction in the State of Texas and to venue in such courts. lfany ponion ofthis Agreement is held to be invalid or legally unenforceable, the remaining portions will not be affected and will be given full terce and effect. Agreed to and Accepted by: 3/3o(2du; ' Date ATTEST: ROSA RIOS. CITY SECRETARY BY: