Loading...
2003-022S:\Our Documents\Ordinances\03~Powell Resignafon alternate.doc ORdnANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT OF RESIGNATION WITH DOUG POWELL; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to execute an Agreement of Resignation with Doug Powell. SECTION 2. That the City Manager is hereby authorized to expend the funds necessary to carry out any agreement in an amount not to exceed $50,000. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~7~ / ~[day of ~r~x'.Zt~'/.X./-'~ , 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY BY: AGREEMENT OF RESIGNATION This Agreement of Resignation (the "Agreement") is executed between Douglas Powell and his executor ("Doug") and the City of Denton, Texas, its elected and appointed officials, employees, agents, affiliates and subsidiaries (the "City"), and constitutes the full and complete terms of their agreement concenfing the subject matter hereof and supersedes any and all other oral or written agreements which the parties may have made concerning the subject matter hereof. WHEREAS, Doug has been employed by the City as its Director of Planning and Development since November 8, 1999; and For and in consideration of the foregoing recitals and the mutual covenants of the parties as set forth in this Agreement, Doug and the City agrees as follows: 1. Doug hereby resigns his employment with the City effective January 2, 2003, contingent upon the approval of this Agreement by the City Council of the City and contingent upon the full performance of this Agreement by the City. 2. The City agrees to the following: a. Doug shall remain on paid leave through January 1, 2003. b. The City shall pay Doug Twenty Five Thousand Dollars and no cents ($25,000.00) within three days a~er the approval of this Agreement by the City Council. c. The City shall pay Doug an additional amount equal to 90% of one month's pay on the first pay period in April 2003 if he has not accepted a full-time, permanent position by March 31, 2003. d. The City shall pay Doug an additional amount equal to 60% of one month's pay on the first pay period in May 2003 if he has not accepted a full-time, permanent position by April 30, 2003. e. The City shall pay Doug an additional amount equal to 40% of one month's pay on the first pay period in June 2003 if he has not accepted a full-time, permanent position by May 31, 2003. f. The payments in paragraphs 2(c)(d) and (e) above will be prorated as set forth in paragraph 3.b of this Agreement. g. The City will prepare, and the City Manager of the City will sign, a letter of recommendation that is otherwise acceptable to both Doug and the City. 3. Doug agrees to the following: Doug will undertake good faith effort to obtain and accept employment during the months and deadlines referred to in paragraph 2 of this Agreement. Doug agrees that the payments to be made by the City as provided in paragraphs 2(c), (d) and (e) of this Agreement will be prorated as follows: Powell Resignation Agreement Page 1 956000.00058:754066.02 (1) If Doug accepts a full-time, permanent position during April 2003, and if such employment actually begins in April 2003, then the City payment required by paragraph 2.c above shall be prorated based on the number of days in April prior to which Doug actually began his new employment (for example, if Doug accepts a position during early April 2003 and begins employment on April 25, 2003, then the City's prorated payment will be a fraction the numerator of which is 25 and the denominator or which is number of days in April); provided, however, in no event shall Doug receive less than 20% of such payment; and (2) If Doug accepts a full-time, permanent position during May 2003, and if such employment actually begins in May 2003, then the City payment required by paragraph 2.d above shall be prorated based on the number of days in May prior to which Doug actually began his new employment (for example, if Doug accepts a position during early May 2003 and begins employment on May 25, 2003, then the City's prorated payment will be a fraction the numerator of which is 25 and the denominator or which is number of days in May); provided, however, in no event shall Doug receive less than 20% of such payment; and (3) If Doug accepts a full-tune, permanent position during June 2003, and if such employment actually begins in June 2003, then the City payment required by paragraph 2.e above shall be prorated based on the number of days in June prior to which Doug actually began his new employment (for example, if Doug accepts a position during early June 2003 and begins employment on June 25, 2003, then the City's prorated payment will be a fraction the numerator of which is 25 and the denominator or which is number of days in June); provided, however, in no event shall Doug receive less than 20% of such payment. 4. Doug agrees that such terms and payment upon an employee's resignation is contrary to the City's normal policy, and in exchange for such good and valuable consideration, and upon the condition that this Agreement is approved by the City Council and signed by the City Manager, Doug agrees to release and waive, to the full extent he can legally do so, any and all claims he had or now has which may arise by virtue of his employment with or resignation from the City, including without limitation, any claims against the City, its officers and employees, but not limited to, breach of contract, tort, 42 USC Section 1983, Title VII of the Civil Rights Act and any and all claims which might arise under local, state, or federal laws relating to employment discrimination or Employment Benefit Law, Workers' Compensation Law, including rights and cla'mas arising under the Age Discrimination in Employment Act, Texas Payday & Whistleblower Laws as of the date of this Agreement, and Doug agrees that he will not file any lawsuit on account of his employment with or resignation fi'om the City citing these or any acts or laws relating to this matter. Doug also waives any right he has under the City Charter or under any applicable laws to a right to a written statement or notice of reasons for removal and to a hearing. Nothing herein shall be construed to prohibit said Douglas Powell fi:om filing a charge, testify, assist, or participate in any manner in an EEOC investigation, hearing, or proceeding. Nothing in this Agreement shall be construed to prohibit Doug from Powell Resignation Agreement Page 2 956000.00058:754066.02 filing a suit to enforce the provisions of this Agreement in the event of any breach of this Agreement by the City. 5. Upon the condition that this Agreement is approved by the City Council and signed by the City Manager, the City agrees to release and waive, to the fall extent the City can legally do so, any and all claims the City had or now has which may arise by virtue of Doug's employment with or resignation from the City. Nothing in this Agreement shall be construed to prohibit the City from filing a suit to enforce the provisions of this Agreement in the event of any breach of this Agreement by Doug. 6. Doug waives any and all rights of any kind to seek re-employment with the City, now or at any future time, unless such attempted re-employment is with the written consent of the City Manager. Doug further agrees to return to the City, not later than 48 hours aRer the payment required in paragraph 2.b of this Agreement is made, any software, equipment, or other City property in his possession that has not been previously returned. Doug shall also have the right, during such period, to return to his office to determine what, if any, personal materials remain in his office and to take such personal materials with him. Should any further personal materials belonging to Doug be discovered by the City at any time in the future, such materials will be immediately returned to Doug. 7. The terms of this Agreement shall be treated as confidential by both parties, to the extent that this Agreement may remain confidential under the law, and the parties agree not to publicize or disseminate the terms in any way, except as may be required by federal, state, or local law, including but not limited to the Texas Public Information Act, or to secure enforcement of the terms and conditions of this Agreement. If either party (including Doug's spouse) breaches this paragraph 7, the aggrieved party shall be entitled to seek enforcement of this Agreement in a court of competent jurisdiction, including all remedies for damages to which such party is entitled under applicable law. 8. The parties agree that this Agreement will not affect the usual benefits that will accrue to Doug by reason of his resignation, effective as of the date of his resignation, including but not limited to accrued vacation pay calculated as of the effective date of his resignation. Such accrued vacation shall not be reduced by reason of Doug's status as having been on paid leave through January 1, 2003. 9. Doug understands that he should consult with an attorney prior to signing this Agreement. 10. This agreement may be revoked by either party for a period of seven (7) days following the execution of this agreement. This agreement shall not be effective or enforceable until the revocation period has expired. However once approved by the City Council this Agreement may only be revoked by action of the City Council. Powell Resignation Agreement Page 3 956000.00058:754066.02 11. The City agrees to cooperate with Doug to the extent necessary for Doug to resolve any issues related to his employment including, but not limited to, COBRA insurance coverage and retirement benefits, and to cooperate with Doug to the extent reasonably necessary to assist Doug in obtaining new employment including, but not limited to, a written recommendation acceptable to both Doug and the City. 12. Doug agrees that he has been given a period of at least 21 days fi.om December 30, 2002 during within which to consider this Agreement, if he so desires. 13. This Agreement has been entered into voluntarily and knowingly by Doug. Doug has read this Agreement and understands it, and has been given an opportunity to review it with an attorney. 14. This Agreement shall be governed by the laws of the State of Texas. Venue for any action concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. Agreed to and Accepted by: Representative of City: ai er /U Date Date Approved ~ ~.~_~'~ ~. Attorney for Doug Powell Approved as to form: City Attorney Powell Resignation Agreement Page 4 956000.00058:754066.02