Loading...
HomeMy WebLinkAboutResolution # 3729-A~. F ~ry RESOLUTION NO. __~Z29-A A RESOLUTION APPROVING A SETTLEMENT AGREEMENT BETWEEN PAMELA SMITH AND THE CITY OF CANTON, ILLINOIS. WHEREAS, various matters are pending between the City of Canton and Pamela Smith that are likely to lead to litigation; and WHEREAS, the City of Canton and Pamela Smith have had the benefit of a mediator with regard to the matters pending; and WHEREAS, it has been determined to be in the best interest of the City of Canton to enter into a Settlement Agreement; and WHEREAS, NOW THEREFORE, BE IT RESOLVED by the Mayor and the City Council of the City of Canton, Illinois as follows: 1. That after considering the settlement agreement, it should be approved. 2. The Settlement Agreement dated May 2, 2005, is hereby approved. 3. That the Settlement Agreement for the benefit of the parties includes a confidentiality agreement and the terms of the Settlement Agreement shall not be disclosed except as required by law. 4. That this Resolution shall be in full force and effect immediately upon its passage by the City Council of the City of Canton, Fulton County, Illinois and approval by the Mayor thereof. PASSED by the City Council of the City of Canton, Fulton County, Illinois at a regular meeting this 2"d day of May, 2005, upon a roll call vote as follows: AYES: AlQermen lest, Reed, Hartford, Carl, darn, NIolleck, Fillip ham,,, Sarff . NAYS: None. . ~" ABSENT: None . Approved: Jerry M. Bohler, Mayor Attest: Nancy WYE tes, City Clerk '~ SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release is made and entered into this day of , 2005, by and between Pamela Smith (hereinafter "EMPLOYEE'), and City of Canton (including all agents, employees and Jerry Bohler, individually and as Mayor) (hereinafter collectively referred to as "CITY') and Jerry Bohler, individually and as Mayor (hereinafter referred to as BOHLER). WHEREAS, EMPLOYEE during her employment with CITY filed charges with the Illinois Department of Human Rights and Equal Opportunity Commission under EEOC Charge Number 210-2005-01711 and Title Vll of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., and also filed an Application for Adjustment of Claim asserting rights under the Illinois Worker's Compensation Act with the Illinois Industrial Commission (Ill. Ind. Comm. No. 04 WC 45788), and; WHEREAS, CITY has denied the claims filed by EMPLOYEE have any merit and persists in thaf denial, and; WHEREAS, EEOC has asked EMPLOYEE and CITY to aftempt to mediate a settlement and both parties selected Stephen Evans to mediate the charges. WHEREAS, EMPLOYEE and CITY, pursuant to mediation, have settled fully and frnally all differences between Them, including but in no way limited to, those differences embodied in the aforementioned administrative and federal charges along with any employment issues or grievances thaf may have arisen prior to the execution date of this Agreement. NOW THEREFORE, in consideration of the mutual promises covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency in which is hereby acknowledged, it is agreed as follows: 1. NO ADMISSION. This Settlement Agreement and Release shall not in any way be construed as an admission by CITY and Jerry Bohler, individually and as Mayor, of any acts of oa.2s.o~ec~on City of Canton. Settlement Agree. 1 ,~ ., discrimination, retaliation or other inappropriate conduct whatsoever against EMPLOYEE or any other person, and specifically CITY disclaims any liability to or discrimination, retaliation or other inappropriate conduct against EMPLOYEE or any EMPLOYEE or any other person, on the part of itself, it's employees or it's agents. 2. CONTINUED EMPLOYMENT. CITY agrees to continue employing EMPLOYEE for a period of four (4) years beginning August 13, 2004 and ending on August 12, 2008 provided however, That EMPLOYEE maybe terminated at any time by C1TY for just cause. This contractual right to continued employment except for cause is intended to be a protected properly interest. Said continued employment shall include wages at a yearly salary of $20, 567.00 and with benefit accrual and contributions made for and during EMPLOYEE's employment in accordance with the CITY's Personnel Policy beginning August 13, 2004. EMPLOYEE's first compensable pay period shall being May 4, 2005. 3. WITHDRAW OF CHARGES. EMPLOYEE agrees to withdraw with prejudice, all charges filed by EMPLOYEE against CITY with any Federal, State or Local agencies, including without limitation the Illinois Department of Human Rights, Equal Employment Opportunity Commission (Case Number 210-2005-01711) and charges filed with the Illinois Industrial Commission under Case Number 04 WC 45788. EMPLOYEE will either dismiss or if the Industrial Commission does not accept the dismissal, will enter into a settlement contract in an acceptable form to obtain dismissal of the Application for Adjustment of Claim based upon the consideration received 04.29.05iBCt~oh City of Canton. Settiement.Agree. 2 in this Agreement. EMPLOYEE will execute and file a formal request for withdrawal of any and all charges filed against CITY and will perform any additional actions and execute any additional documents requested by CITY to terminate the process of all such charges. 4. CONSIDERATION. The CITY agrees to make payment of the sum of $34,000.00 and to enter into the Employment Agreement that is attached to this Settlement Agreement and Release for completion of this Agreement as follows: A. Upon presentation with an acceptable form of withdrawal of the EEOC and Illinois Human Rights Commission charges, the CITY will deliver to Special Attorney Bruce Beal a check in the amount of $34, 000.00 payable to EMPLOYEE and Richard L. Steagall, her attorney and a signed Employment Agreement in the form attached here. B. EMPLOYEE will sign the Employment Agreement and Special City Attorney Bruce Beal will retain it until EMPLOYEE's counsel completes the obligation of the following paragraph. C. Upon notice of Mr. Beal's receipt of the check and signed Employment Agreement, EMPLOYEE's counsel will then send next day delivery the acceptable forms of withdrawal to the EEOC asking for a dismissal of the pending charges with prejudice based upon this Settlement Agreement and to deliver any such form of withdrawal as is necessary to obtain a dismissal of any charge pending before the Illinois Department of Human Rights under the work sharing Agreement between the agencies. 04.29.05/aC~oh City of Canton. SettlemenkAgn:e. 3 D. EMPLOYEE acknowledges she is responsible for any State, Federal and IMRF withholdings for all compensation received for the period beginning August 73, 2004 and ending with the termination of her employment. 5. NO OTHER CHARGES. EMPLOYEE represents that EMPLOYEE has not bled any other complaints or charges against CITY or any of its commissioners, employees or agents, with the Equal Employment Opportunity Commission, the Illinois Department of Human Rights or any other local, state or federal agency or State or Federal Court, and that EMPLOYEE will not do so at anytime based on EMPLOYEE'S employment with the CITY through the date of this Settlement Agreement and Release signed by both parties and that if any such agency or Court assumes jurisdiction of any complaint or charges against CITY, or any of it's commissioners, employees or agents on behalf of EMPLOYEE, EMPLOYEE will request such agency to withdraw the matter and dismiss it with prejudice. This obligation is undertaken to resolve and settle all disputes existing between EMPLOYEE and the CITY. It is not intended and does not release any claim the EMPLOYEE may have in the future that arises after execution of this Settlement Agreement and Release arising from EMPLOYEE's employment or the CITY's performance of the Employment Agreement. 6. KNOWING AND VOLUNTARY. EMPLOYEE represents and agrees that EMPLOYEE has thoroughly discussed all aspects of this Settlement Agreement and Release with EMPLOYEE'S attorney, that EMPLOYEE has carefully read and fully understands all of 04.29.05BCt~oh City of Canton. Settlement Agn;e. 4 the provisions of this Settlement Agreement and Release, and that EMPLOYEE is knowingly, voluntarily and on her own free will entering into this Settlement Agreement and Release with full knowledge of all of its Perms and conditions. 7. RELEASE OF ALL CLAIMS. In consideration of the payment of $34, 000.00 and the Employment Agreement entered info as part of the Settlement Agreement and Release, EMPLOYEE hereby ir-evocably and unconditionally releases, acquits and forever discharges the CITY, it's commissioners, employees and other agents, including the Mayor, individually and in his capacity as Mayor, or the CITY and each of the CITY'S past, present and fufure commissioners, councilmen, agents, directors, officers, employees, representatives, attorneys, divisions, subsidiaries, affiliates, insurers, and related entities, and all persons acting by, through, under or in concert with any of them (collectively the "Releasees') or any of them, from any and all claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses (including attorney fees, expert witness fees and related costs), based on Federal, State or Local constitution, sfatute, ordinance and regulation and common law, of any nature whatsoever arising from EMPLOYEE's employment with the CITY through the date of this Settlement Agreement, whether known or unknown. 8. NO ASSIGNMENT. EMPLOYEE represents that EMPLOYEE has not heretofore assigned or transferred, or pu-ported to assign or transfer, 04.29.05BCt~oh City of Canton.Settlement.Agree. 5 to any person or entity, any of EMPLOYEE'S claim or any portion thereof or interest therein. 9. CONF/DENTIAL-TY. EMPLOYEE agrees to keep the teens and conditions of this Settlement Agreement confidential and EMPLOYEE will not disclose the sums of money paid to EMPLOYEE, so long as the Agreement remains confidential. In the event the CITY discloses the terms of this Agreement to the public, the CITY recognizes the EMPLOYEE cannot keep confidential what the CITY has made public and that any obligation to keep confidential that which has been disclosed to the public is impossible. 10. NO CONTACT. EMPLOYEE agrees that she shall have no contact with Jeny Bohler and Jeny Bohler agrees that he will have no contact with EMPLOYEE. 11. NO RELIANCE. EMPLOYEE represents and acknowledges that in executing this Settlement Agreement and Release, EMPLOYEE does not rely and has not relied upon any representation or statement made by any of the Releasees or by any of the Releasees' agents, representatives or attorneys with regard to the subject matter, basis or effect of this Settlement Agreement and releases or otherwise. 12. SUCCESSORS AND ASSIGNS. This Settlement Agreement and Release shall be binding upon EMPLOYEE and EMPLOYEE'S heirs, administrators, representatives, executors, successors and assigns, and inure to the benefit of Releasees in each of them, and to their heirs, administrators, representatives, successors, executors and assigns. The CITY is a local public entity 04.29.05/BC~oh City of Canton. SettlemenkAgree. 6 that has a perpetual existence and is bound by the terms of this Settlement Agreement and Release. 13. APPLICABLE LAW. The Settlement Agreement and Release includes resolution of dismissal of EMPLOYEE's charge for discrimination under the Title Vll of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq before the Equal Employment Opportunity Commission and her claims for deprivation of constitutional rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983, which could be filed at any time within two (2) years of the occurrence. The terms of the Settlement Agreement and Release are governed by Federal law. 14. PARTIAL INVALIDITY. Should any provision of this Settlement Agreement and Release be declared or be determined by any Court to be illegal or invalid, the validity of the remaining parts, teens or provisions shall not be affected thereby and said illegal or invalid part, term or provisions shall be deemed not to be a part of this Settlement Agreement and Release. 15. ENTIRE AGREEMENT. This Settlement Agreement and Release sets forth the entire Agreement between the parties hereto, and fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof. l HAVE READ THE FOREGOING RELEASE AND FULLY UNDERSTAND IT. SIGNED AND SEALED BY ME AT CANTON, ILLINOIS ON THE DAY OF .2005. PAM SMITH 04.29.05iBCt~oh City of Canton. Settlement Agree. 7 STATE OF ILLINOIS, ) SS. COUNTY OF FULTON. ) Subscribed and sworn to before me this day of 2005. ' Notary Public CI TY OF CANTON BY.• Its Mayor JERRY BOHLER 04.29.05/BCB!/oh City of Canton. Settiement.Agree. 8 .~ EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT, (hereinafter "AGREEMENT'), entered into this day of 2005, nunc pro tunc August 13, 2004, by and between PAM SMITH, Canton, Illinois, (hereinafter "PAM') and the City of Canton (hereinafter "CANTON'). WHEREAS, CANTON desires to employ PAM and define the terms and conditions of her employment with CANTON, and; WHEREAS, PAM is willing to be employed by CANTON under the terms and conditions set fo-th in this AGREEMENT. NOW THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein the parties agree as follows: ARTICLE 1 TERM OF AGREEMENT SECTION 1.01: Term. The term of this AGREEMENT (hereinafter "TERM') shall commence on the 13th day of August, 2004 (the "effective date') and shall terminate on the first to occur of the following dates: A. The date of PAM's death or adjudicated incompetence; 8. The date on which PAM becomes "permanently and totally disabled" (within the meaning of Section 22(e)(3) of the Internal Revenue Code as amended); C. The date on which PAM's employment is terminated by CANTON with "Cause" (as defined in Section 4.02) or by PAM's resignation. 04.29.05. EMPLOYMENT.AGREEMENT 1 D. The date that is the fourth anniversary date of the effective date of this AGREEMENT (THE "Termination Date'). ARTICLE 2 TERMS OF EMPLOYMENT SECTION 2.01. Position and Duties. AGREEMENT, PAM shall serve as or in such other position she maybe assigned and perform the duties as maybe assigned to her from time to time by CANTON. SECTION 2.02. Base Salary Variable Compensation and Expenses. A. PAM understands that CANTON will review and set the salary for this position on an annual basis but in no event shall it be less than $20, 567.00 annually and payment shall begin as normal payroll for work beginning the week of May 2, 2005. PAM's annual salary will be reviewed on an annual basis and will take into consideration experience, knowledge and performance on behalf of CANTON. If PAM is assigned to a Union position compensation shall be as provided for in the Collective Bargaining Agreement (hereinafter CBA). The salary range and annual salary are specified in attachment Exhibit A. The base salary as defined in this Section will be payable in equal biweekly installments, subject to applicable tax withholding and in accordance with CANTON's normal payroll practices. PAM acknowledges she has received compensation through the execution date of this Agreement and further that she will be required to pay all of her share of the withholdings required by State or Federal law including IMRF contributions. 04.29.05. EMPLOYMENT.AGREEMENT 2 During the TERM of this ARTICLE 3 GENERAL BENEFITS SECTION 3.01. Personal Benefits During the Term of Agreement. A. PAM shall be entitled to receive the health insurance, life insurance and other benefits as contained in CANTON's Personnel Policy Manual or CBA as the same may apply to her position from time fo fime as they may exist. Should there be a conflict between the terms of this AGREEMENT and the provisions of the CBA or CANTON Personnel Policy Manual, this AGREEMENT shall prevail. SECTION 3.02. IMRF. PAM shall be entitled to participate in CANTON's IMRF Plan in accordance with the policies and procedures outlined in CANTON's Personnel Policy Manual. ARTICLE 4 TERMINATION OF EMPLOYMENT SECTION 4.01. A termination of PAM's employment by CANTON shall be considered fo be for "cause" under this AGREEMENT if CANTON terminates her employment based upon a determination that PAM has (i) engaged in a misconduct in connection with the performance of her duties hereunder, (ii) engaged in conduct considered sexually harassing while performing her duties at CANTON, (iii) engaged in criminal conduct or other serious misconduct That is likely to be harmful to the business or reputation of CANTON, or (iv) fails to adequately perform the duties assigned to her from time to time.. 04.29.05. EMPLOYMENT.AGREEMENT 3 SECTION 4.02. Resignation. Notwithstanding any other provisions of this AGREEMENT, upon the termination of PAM's employment for any reason, unless otherwise requested by CANTON, PAM shall immediately resign from all Committees of which she may be a member. PAM hereby agrees to execute any and all documentation of such resignations upon request by CANTON, but shall be treated for all purposes as having so resigned upon termination of her employment, regardless of when or whether PAM executes any such documentation. ARTICLE 5 GENERAL PROVISIONS SECTION 5.01. Entire Agreement. This AGREEMENT sets forth the entire agreement between the parties wifh respecf to its subject matter and merges and supersedes all prior discussions, agreements and understandings of every kind in nature between any of them, and neither party shall be bound by any term or condition other than is expressly set forth or provided for in this AGREEMENT. This AGREEMENT may not be changed or modified except by an agreement in writing signed by the parties hereto. SECTION 5.02. Waiver. The failure of any party to this AGREEMENT to enforce any of its terms, provisions or covenants shall not be construed as a waiver of the same or of the right of such party to enforce fhe same. Waiver by any party hereto of any breach or default by any other party or any TERM or condition of this AGREEMENT shall not operate as a waiver of any other breach or default. 04.29.05. EMPLOYMENT.AGREEMENT 4 SECTION 5.03. Severability. In the event that any one or more of the provisions of Phis AGREEMENT shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of the AGREEMENT shall not in any way be affected or impaired (hereby. More over, if any one, or more of the provisions contained in this AGREEMENT shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowed by applicable law. SECTION 5.04. Notices. Any notice given hereunder shall be in writing and shall be deemed fo have been given when delivered by messenger or courier service, (against appropriate receipt) or mailed by registered or certified mail (return receipt requested), addressed as follows: If to CANTON: 2 North Main Street Canton, IL 61520 If to PAM: 56 West Birch Canton, IL 61520 Or at such other address as shall be indicated to either party in writing. Notice of change of address shall be effective only upon receipt. SECTION 5.06. Governing Law. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of Illinois and Federal law where and if applicable. SECTION 5.08. Counterparts. This AGREEMENT may be executed in counterparts, each of which shall be deemed an original for all purposes but which, together, shall constitute one and the same instrument. 04.29.05. EMPLOYMENT.AGREEMENT 5 e '. IN WITNESS WHEREOF, the hands and seals of the parties hereto this day as first written above 04.29.05. EMPLOYMENT.AGREEMENT CI TY OF CANTON 8 Y.~ Mayor PAM SMITH 6