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HomeMy WebLinkAboutresolution.council.014-19 RESOLUTION # 14 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A SEPARATION, RELEASE AND WAIVER AGREEMENT BETWEEN THE CITY OF ASPEN AND STEVE BARWICK AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Separation, Release and Waiver Agreement between the City of Aspen and Steve Barwick, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Separation, Release and Waiver Agreement between the City of Aspen and Steve Barwick, a copy of which is attached hereto and incorporated herein and does hereby authorize the Mayor to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 28th day of January 2019. Zj Stevenadron, ayor I, Linda Manning, duly appointed and acting Ci Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held January 28, 2019. 06� �'(' ", Linda Manning, City Cler r iry��r ncpFr� SEPARATION, RELEASE AND WAIVER AGREEMENT FOR STEVE BARWICK The following Separation, Release and Waiver Agreement ("Agreement") between Steve Barwick, the undersigned Employee (referred to as "Barwick") and the City of Aspen together with its past and present officers, directors, employees, predecessors, successors and assigns, concerns Barwick's employment with the City of Aspen and separation from employment. Section A — Separation Barwick's separation from employment with the City of Aspen shall be effective upon three weeks' notice by either party but no later than March 1, 2019. Until separation, Barwick shall receive all compensation to which he is entitled, including but not limited to continued wages at the current annualized rate of $195,229, and accrued paid time off (PTO) leave less appropriate payroll and withholding tax deductions required by law. Barwick acknowledges that he is not aware of any fact that would support a claim for unpaid wages under the Fair Labor Standards act or state laws as all compensation has been paid to him. The parties acknowledge that upon the hiring and placement of an Interim City Manager, Barwick will be deemed an advisor to the Interim City Manager, although his pay shall continue as if he continued as City Manager until the date of separation set forth above. Section B — Consideration 1. The City of Aspen will, pursuant to the contract dated April 26, 2010, by and between Barwick and the City of Aspen, and as consideration for the promises set forth in this Agreement, pay: a. All benefits to which Barwick is entitled as set forth in the City of Aspen Policy Manual, which shall be paid upon separation. b. A lump sum payment of $195,229, equivalent to one year's salary, shall be due and payable to Barwick no later than twenty (20) days following the effective date of separation set forth above, less deductions for federal and state withholding and payroll taxes as required by law. The City of Aspen shall treat such payment as compensation from which appropriate federal and state withholding and payroll taxes shall be deducted. 2. In addition, as further consideration for this agreement, the City agrees to the following: 11Page a. If Barwick elects timely continued coverage under COBRA, the City will pay Barwick's health and dental COBRA payments on behalf of Barwick and Barwick's spouse to continue both parties' coverage for a period of six months from the effective date of separation set forth above. The City's provision of such COBRA payments will immediately cease if during the COBRA payment period Barwick becomes eligible for group health insurance coverage through a new employer or Barwick ceases to be eligible for COBRA continuation coverage for any reason, including plan termination. In the event Barwick becomes covered under another employer's group health plan or otherwise ceases to be eligible for COBRA during the COBRA payment period, Barwick shall immediately notify the City. b. The date of sale set forth in the Occupancy and Resale Deed Restriction, Agreement, and Covenant dated February 14, 1996, is hereby extended for a period of six months, so long as Barwick is actively pursuing other employment. If Barwick accepts employment outside of the City of Aspen, the extended period shall last no greater than three months following acceptance of employment outside of the City of Aspen. Section C - Release of City of Aspen and Covenant Not to Sue In consideration for the payments set forth in Section B above, Barwick agrees to forever, unequivocally, and unconditionally release the City of Aspen from and covenants not to sue or assert against the City of Aspen and all of its related entities, directors, members, trustees, officers, current and former employees, agents, insurers, attorneys, predecessors, successors, and assignees (the City of Aspen and all the foregoing other persons and entities are referred to collectively in this agreement as the "Releasees"), any and all causes of action, whether at law or in equity, pertaining to or arising from the employment relationship of the parties and the termination of such employment relationship based in whole or in part upon any act or omission occurring on or prior to the date of termination of employment, whether negligent or intentional, without regard to Barwick's present actual knowledge of any such act or omission. By signing this Agreement, Barwick is expressly waiving Barwick's right to any relief, recovery, attorneys' fees, or other monies in connection with any such complaint, charge, or proceeding brought against the Releasees. This restriction applies only to civil claims that may be filed in court directly by Barwick, or anyone acting on Barwick's behalf, including suits brought on Barwick's behalf by Government Agencies (as defined below). The Agreement does not affect Barwick's right to file a charge with or participate in an investigative proceeding before the Equal Employment Opportunity Commission, state civil rights agency, or another federal, state, or local government agency or to communicate or cooperate with any such agency in its investigation, none of which shall constitute a breach of this Agreement. However, Barwick is expressly waiving Barwick's right to any relief, recovery, attorneys' fees, or other monies in connection 21I' age with any such complaint, charge, or proceeding brought against the Releasees, regardless of who filed or initiated any such complaint, charge, or proceeding. Causes of action as used in this Section shall mean all claims, causes, judgments, damages, losses, liabilities, and demands of any kind and nature whatsoever, whether intentional or negligent, known or unknown, in law or in equity, individually or as part of a class action, occurring on or prior to the date of execution of this Agreement, arising under any constitution, federal, state, or local law(s), including but not limited to: 1. All claims or demands, directly or indirectly, relating to or arising out of Barwick's employment relationship with the City of Aspen, or the termination of that relationship; 2. All claims for violation of any federal, state or municipal statute, including but not limited to: a. Title VII of the Civil Rights Act of 1964, as amended; b. the Colorado Anti-Discrimination Act (CADA); C. the Family and Medical Leave Act (FMLA); d. the Americans with Disabilities Act (ADA); e. the Age Discrimination in Employment Act (ADEA); 3. All claims arising from any theory under common law such as breach of contract, express or implied, promissory estoppel, detrimental reliance, wrongful discharge, tortious interference with contract rights, infliction of emotional distress, and defamation; 4. All claims for violation of any federal, or any state, constitution, law, or statute; 5. All claims arising out of any other laws and regulations relating to employment or employment discrimination, including claims arising under common law including any tort, contract, or equitable theory; and 6. All claims for attorneys' fees and costs. This General Release and Covenant not to sue does not apply to claims under federal, state, or local law (statutory, regulatory, or otherwise) that may not be lawfully waived and released, such as vested retirement benefits (if any), COBRA rights, unemployment compensation, and workers' compensation. Section D —ADEA and Older Workers Benefit Protection Act Release In addition to the General Release contained in Section C, Barwick knowingly, voluntarily, and irrevocably discharges and releases Releasees and each of them from any claims arising under the ADEA. Barwick acknowledges that Barwick has been informed pursuant to the federal Older Workers Benefit Protection Act of 1990 that: 31P iL, c 1. Barwick is advised to and has consulted with an attorney before signing this Agreement. 2. Barwick does not waive rights or claims under the federal Age Discrimination in Employment Act that may arise after the date this Agreement is executed. 3. Barwick has twenty-one (21) days from the date of receipt of this Agreement to consider this Agreement. Barwick acknowledges that if Barwick signs this Agreement before the end of the twenty-one (21) day period, it will be Barwick's personal, voluntary decision to do so and that Barwick has not been pressured to make a decision sooner. 4. Barwick has seven (7) days after signing this Agreement to revoke the Agreement and the Agreement will not be effective until that revocation period has expired. The rescission must be hand delivered within the seven days to Alissa Farrell, Human Resources Director, 130 South Galena Street, Aspen, CO 81611. 5. This agreement shall not be effective or enforceable until after the seven (7) day revocation period has expired. Barwick understands that Barwick will not receive any the benefits set forth in Section B.2., if Barwick voids his signature or revokes this Agreement. Further, Barwick acknowledges that if the agreement is revoked, Council may request immediate separation, in which case the benefits set forth in Section B.1., will be paid pursuant to his contract of employment dated April 26, 2010. Section E — Non-Disparagement Barwick agrees not to make any false remarks about the City of Aspen pertaining to or arising from the employment relationship of the parties and the termination of such employment relationship. Section F — Miscellaneous 1. Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining provisions. Such remaining provisions shall be fully severable, and this Agreement shall be construed and enforced as if such invalid provisions never had been inserted in the Agreement. 2. Receipt of Agreement. Barwick acknowledges that Barwick received this Agreement on January 29, 2019. 3. Entire Agreement: This Agreement represents the entire agreement and understanding between Barwick and the City of Aspen, Barwick's employment with and separation from the City of Aspen, and the events leading thereto and associated therewith. This Agreement supersedes and replaces all prior agreements and understandings concerning Barwick's 41Pa - c relationship with the City of Aspen. This Agreement cannot be amended unless said amendment is reduced to writing and signed by Barwick and an authorized representative of the City. 4. Colorado Open Records Act. This document may be deemed public record under the Colorado Open Records Act. 5. Choice of Law. The parties agree that the laws of the State of Colorado shall govern this Agreement. Barwick hereby acknowledges the following: I have carefully read the above and I execute it voluntarily, fully understanding and accepting the provisions of this Agreement in its entirety and without reservation after having had sufficient time and opportunity to consult with my legal advisors prior to executing this Agreement. I have been advised to consult with an attorney prior to executing this Agreement. In agreeing to sign this Agreement I have not relied on any statements or explanation made by the City of Aspen. I have had at least twenty-one (21) days to consider this Agreement. I understand that if I do not return this Agreement signed by me to the City of Aspen within the twenty-one (21) day consideration period this offer will expire. I understand that I may revoke and cancel the Agreement within seven (7) days after signing it by serving written notice upon City of Aspen. Employee: Steve Barwick Date For the Ci c f Asp Stev n Skad n, Mayor Date ATT S �c Linda Manning 51Pauc