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NOTICE OF MEETING
City Council Special Meeting
3800 Laverne Avenue North
Tuesday, January 31, 2017
2:00 p.m.
Call to Order
11. Consideration of Finance Director's Employment Contract
III. Adjourn
ii IF. CITY ()11-:
1 AKE FLMO
STAFF REPORT
DATE:
MOTION
TO: Mayor and City Council
FROM: Kristina Handt, City Administrator
AGENDA ITEM: Finance Director Benders Employment Contract
January 31, 2017
BACKGROUND:
When Cathy Bendel was hired by the City on March 19, 2012, the Finance Director and City entered into
an employment contract. A copy of the contract is attached.
ISSUE BEFORE COUNCIL:
Should the Council terminate the Finance Director's agreement?
PROPOSAL DETAILS/ANALYSIS:
Section 3 of the contract lays out the termination provisions, both for cause and without cause. I am
recommending the City Council exercise the option to terminate without cause. In this event, the City
Council will give the Finance Director 30 days written notice. Furthermore, since the Finance Director
has been here more than 48 months she would be entitled to four months regular salary.
Resolution No. 2017-010 included in your packet approves termination of the contract without cause and
would place the Finance Director on a 30-day paid leave until the effective date of the termination, unless
she resigns earlier. Additionally, it offers the option to the Finance Director of a severance agreement,
which includes six months salary if the agreement is executed by February 28, 2017.
FISCAL IMPACT:,
Four months salary is $27,872
Six months salary is $41,808
In addition, the paid time off (PTO) balance will be 220 hours by March 2, 2017 (the end of the 30-day
notice period) and valued at $8,844.
OPTIONS:
1) Approve Resolution No. 2017-010
2) Amend and then Approve Resolution No. 2017-010
3) Do not terminate the Finance Director's employment agreement
RECOMMENDATION:
"Motion to approve Resolution No. 2017-010."
ATTACHMENTS:
• Finance Director Contract
• Resolution No. 2017-010
FINANCE DIRECTOR CONTRACT
CITY QFLAKE EL80O
CATRYBENQELSCHACHTNER
1.1) PARTIES. The Agreementis date the 19"'day ofMarch, 2012and isentered into by
and between the City ofLake Elmo, aMinnesota statutory city ("City) and Cathy Bendel
Soheohtne,("Finonoe0irentor").
2.0 TERMS AND CONDITIONS. The City Hereby agrees to employ the Finance Director
and the Finance Director agrees to accept employment according to the following terms and
conditions:
A. Compensation/Performance Evaluation. Beginning salary will be $70.00 per
year. Performance evaluations will be conducted bi-annuallyor earlier if directed by
the City Council, A salary adjustment to $72.000 per year will be engaged if the
Finance Director receives a satisfactory performance evaluation in September of
2012. Future salary adjustments shall be commensurate with any annual increase as
awarded to City Employees (a.0. coot of living) at the discretion of the City Council.
Other compensation increases, if any, will be awarded at the City Council discretion.
B. Reti,mnnent/0eferred Connpenaadimm, The City oho8 contribute to PERA as
required by State law for Finance Director or on alternate pension plan, if selected by
Finance O|nactor, authorized by State \ovv.
C.Imsuence. Finance Director will beprovided health, dental, life and disability
insurance coverage in oonnw manner and at the same level as made available for
City employees.
D. Holidays. Finance Director Will be entitled to the holidays specified in the governing
policy manual adopted by the City of Lake Elmo.
E. Personal Time Off (PTO). Upon employment, Finance Director will ,oneive a 40-
hourbanh of PTO. Thereafter, Rmsncu Director will accrue PTO at the rate specified
in the governing policy manual. Finance Director may carryover from year to year up
to a maximum of that oUnvved by the governing policy manual adopted by the City
/curnandy24O hours of PTO), Finance Director shall accrue at the rate for five to ban
years of service (currently 6.5 hours bi+woeh|y), and after two years of service shall
accrue at the rate for 10 to 15 years of service (currently 8.0 hours b\'weeWy), and
thereafter shall accrue at the rate allowed by the governing policy manual adopted by
the City. The PT[} bank balance is paid out upon separs8ox.The payment ahaU not
be considered o severance benefit or severance compensation as such terms are
used inparagraph 3.Uof this Agreement.
F. Automobile/Expenses. Finance Director shall be entitled to be reimbursed for
mileage incurred in the performance of City business at the prevailing IRS rates.
G. Dues/Conferences/Subscriptions. The []b/ will pay for due and related
membership costs tothe IWNGFOAand the GF[}A.provided routine attendance \nkz
both regular meetings and ann6al continuing education conferences, Any out of state
H, Cell Phone. Finance Director will be provided a City cell phone for business calls.
3'0 TERMINATION OFAGREEMENT. Finance Director will serve at the will of the City
Administrator and the City Council and may be tenn(noVad with or without cause at any time.
Any of the following will constitute termination for cause and would psauK in no severance
1� Willful neglect ofduty,
2. Gross inefficiency or incompetence in uffima that Finance Director has failed to
correct after areasonable written notice.
3. Malfeasance in OfDna, or actions which involve moral turpitude or xvou\d bhDQ the
City into disrmpute, conviction for an illegal act involving personal gain to Employee.
Should the City terminate Finance Director's employment without cause. the City Council will
give the Finance Director thirty (30) days written notice o/ termination. In the event of
termination without cause, the Finance Director shall beentitled to the following compensetinn�
1. O-38months — two (2)months regular swlary-,
2. 3G'48months —three (3) months regular ea|ary�
3. 48months ormore — four (4)months of regular salary.
If the Finance Director decides to terminate employment with the City of Lake E|nno. the Finance
Director is required to give a minimum ofthirty (3O) days written notice of intent to terminate and
shall beentitled hzseverance compensation.
4'0 GENERAL CONDITIONS OF-BNPLOYMENT.Nothing in this Agreement nhal(prevent.
limit Or otherwise interfere with the right of the Employe[ to terminate the services of Employee
at any time, for any neoson, subject only to the provisions of this Agreement and statutory
requirements. Furthermore, nothing in this Agreement shall prevent, limit or otherwise interfere
with the right ofEmployee to resign at any time from her position with Employer, subject only ho
the proVio)nno of this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first
written above.
By:
s�A.Zu
FINANCE DIRE�TOR
By:
m
CITY OF LAKE ELMO
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO. 2017-010
RESOLUTION TERMINATING THE EMPLOYMENT CONTRACT OF FINANCE
DIRECTOR CATHY BENDEL AND APPROVING A SEVERANCE AGREEMENT AND
RELEASE OF CLAIMS
WHEREAS, Cathy Bendel ("Employee") has been employed as Finance Director with the
City o Lake Elmo (the "City-) since March 19, 2012, pursuant to an employment contract; and
WHEREAS, Employee's employment contract provides that the Finance Director will
serve at the will of the City Administrator and the City Council and may be terminated with or
without cause at any time;
WHEREAS, at a special meeting of the City Council on January 3 1, 2017, the City Council
considered and approved the termination of Employee's employment contract pursuant to its
terms, which includes four months of severance pay and 30 days written notice of intent to
terminate; and
WHEREAS, the City Administrator has recommended that Employee be offered a
severance payment above and beyond that offered in Employee's employment contract; and
WHEREAS, the severance payment being recommended is outlined in the Severance
Agreement and Release of Claims (Severance Agreement") attached hereto as Exhibit A: and
WHEREAS, the City Council wishes to approve the Severance Agreement and establish a
final date and time for execution of the Severance Agreement by the Employee.
NOW, THEREFORE, BE IT RESOLVED as follows:
1. The above -referenced recitals are incorporated herein to this Resolution.
The City Council of the City of Lake Elmo hereby approves the termination of Employee's
employment contract effective March 2, 2017.
On February 1, 2017, the Employee shall be placed on a paid leave status until the effective
date of the termination on March 2, 2017. No later than February 1, 2017, the Employee
shall give her keys to all City offices and all work -related passwords to the City
Administrator. If the Employee resigns and executes the Severance Agreement, her paid
leave status shall expire and the terms of that Agreement shall govern.
4. The City Council also approves the Severance Agreement attached as Exhibit A.
5. The City Council directs City staff to advise Employee of the decision to terminate her
employment contract with the City of Lake Elmo and to also offer the Severance
Agreement to Employee as set forth in Exhibit A.
6. The City Council establishes the final date and time for execution of the Severance
Agreement by the Employee as on or before February 28, 2017, at 5:00 p.m.
7. The Severance Agreement shall be deemed null and void if not executed by Employee and
returned to the City Administrator on or before February 28, 2017, at 5:00 p.m.
8 The City Council of the City of Lake Elmo directs City staff to prepare the appropriate
documents and agreements to facilitate the offering and execution of a Severance
Agreeinent as provided herein.
Passed and duly adopted this
City of Lake Elmo, Minnesota.
ATTEST:
Julie Johnson, City Clerk
day of , 2017, by the City Council of the
Mike Pearson, Mayor
EXHIBIT A
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
BETWEEN THE CITY OF LAKE ELMO, MINNESOTA
AND CATHY BENDEL
THIS AGREEMENT is made and entered into this day of
2017 by and between the City of Lake Elmo, Minnesota (the
City"), and Cathy Bendel (the -Employee-).
WITNESSETH:
WHEREAS, the Employee has been employed by the City since March 19, 2012; and
WHEREAS, both the City and the Employee have concluded that it is in the best interests
of both parties that the employment of the Employee by the City be discontinued in accordance
with the following terms and conditions.
NOW, THEREFORE, IN CONSIDERATION of the following mutual covenants and
agreements, the sufficiency of which is hereby acknowledged by both parties, the City and the
Employee agree as follows:
I . Resignation. The Employee hereby submits her resignation as Finance Director
effective The City and the Employee waive any notice that would otherwise be
required.
2. Assistance with Transition. The Employee shall assist with the transition caused by
this resignation. Within 2 days of the execution of this Agreement, the Employee shall provide all
passwords and access codes to any and all software. The Employee shall respond to any request
made by the city administrator, or staff regarding the previous mentioned information or the
location or whereabouts of any information or files relating to the execution of the duties of
Finance Director no later than by 10 a.m. the next business day.
Severance Pay.
a. The City shall pay the Employee for all time employed for the City up to her
resignation date, reduced by applicable federal and state taxes, employment
taxes, and other customary withholdings, in settlement of all salary, overtime
compensation, compensatory time, claims in law and equity, as well as any
administrative claims that the Employee may have against the City or its
officers, agents, employees or insurers. The payment shall be made at the first
regular payroll cycle of the City following the Employee's resignation and
compliance with paragraph 2 in a check made payable to Cathy Bendel.
b. The City shall pay the Employee for any outstanding balance of paid time off
("PTO"). As of March 2, 2017, the balance of hours in the Employee's PTO
account is 220 hours. This amount equates to S8,844.00 prior to being reduced
by applicable federal and state taxes, employment taxes, and other customary
withholdings. This payment shall be made in a lump sum payment once all
rescission periods have passed.
c. The City shall pay the Employee an amount equal to six (6) months of salary or
$41,808.00 prior to being reduced by applicable federal and state taxes.
employment taxes, and other customary withholdings.
d. The Employee is entitled to continuation of her health insurance benefits
pursuant to the Consolidated Omnibus Reconciliation Act ("COBRA"), 29
U.S.C. § 1161, et seq. If the Employee elects to continue her coverage pursuant
to COBRA, she is responsible for payment of her health insurance premiums.
The Employee acknowledges that the payments described above are sufficient
consideration for the Agreement.
4. Release. In consideration of the above referenced Severance Pay at paragraph 3,
the Employee, for herself, her heirs, administrators, representatives, successors, and assigns,
hereby releases and forever discharges the City, and its attorneys, agents, representatives,
employees, former employees, insurers, heirs, executors, and assigns of and from any and all, past,
present, or future claims, demands, obligations, actions, or causes of action at law or in equity,
whether arising by statute, common law, contract, or otherwise, and for all claims for damages of
whatever kind or nature, and for all claims for attorneys' fees and costs and expenses, including
but not limited to all claims of any kind arising out of the Employee's employment, including but
not limited to harassment, discrimination, wrongful termination, defamation, intentional/
reckless/negligent infliction of emotional distress, constructive discharge, claims under the City's
employee handbook, or any actions arising from discussions in efforts to negotiate the Agreement.
In consideration of the above referenced Severance Pay at paragraph 3, the Employee
further acknowledges that she is knowingly and voluntarily waiving all possible rights or claims
arising under: the Minnesota Human Rights Act, Minnesota Statutes, Chapter 363A; Equal
Employment Opportunity Act; Americans with Disabilities Act of 1990, As Amended; Age
Discrimination in Employment Act; Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e — e-I 7;
Family and Medical Leave Act, 29 U.S.C. §§ 2601-54; Americans with Disabilities Act, 42 U.S.C. §
12101-117; the Rehabilitation Act of 1973, 29 U.S.C. § 701-96i; the Public Employment Labor
Relations Act, Minn. Stat. §§ 179A.01-.30; the Minnesota Occupational Health and Safety Act, Minn.
Stat. §§ 182.65-.676; the Minnesota Whistleblower Act, Minn. Stat. §§ 181.931-.935; and the state and
federal Fair Labor Standards Acts, 29 U.S.C. §§ 201-19, Minn. Stat. §§ 177.21-.35. Employee
acknowledges that she has had an opportunity to consult with her attorney concerning the waiver
and content of the rights available under these laws.
lt is specifically understood that the aforementioned Release is intended to include only
those claims arising from any conduct, event, or transaction occurring prior to the date of this
Agreement and intended to include any and all claims for unknown injuries and/or damages.
unanticipated injuries and/or damages, and unexpected consequences of injuries and/or damages.
The Employee further acknowledges that she fully understands the terms of this Separation
Agreement and Release of Claims, that pursuant to the Age Discrimination in Employment Act,
she has had 21 days to consider it and seek the advice of her attorney and/or financial advisor, and
that she is signing it freely and voluntarily. The Employee understands that if she signs this
Agreement and Release prior to the expiration of the 21-day period, that act constitutes a waiver
of her right to consider the Agreement for 21 days.
The Employee understands that this is a resignation and acknowledges that she is waiving
any rights under city ordinance or state law, including any rights she may have to a hearing.
5. Representation by Counsel. The Employee represents to the City that she has had
an opportunity to consult counsel of her choosing with respect to this Agreement and all matters
covered by and relating to it. The Employee further agrees and represents that she has not received
or relied upon any advice or representations by the City or the City's counsel in entering into this
Agreement. The Agreement shall be binding upon the Employee and her attorneys and inure to the
benefit of the City and its respective successors, assigns, subsidiaries, heirs, executors, personal
representatives, and agents.
6. Post -Separation Consultation. Employee and the City recognize the value in
Employee assisting the City during the transitional period following her resignation date.
Accordingly, Employee agrees to make herself actively. reasonably, and readily available to assist
the City by providing consultation and advice on matters that were previously within the scope of
her job duties for a period not to exceed sixty (60) days by phone or in person as is convenient to
Employee.
7. No Admission of Liability. It is specifically understood that by reason of agreeing
to the Agreement, the parties hereby released admit absolutely no liability, misconduct,
wrongdoing, unethical or unprofessional conduct of any sort, and it is further specifically
understood that the Agreement shall not be construed as an admission of liability, misconduct,
wrongdoing, unethical or unprofessional conduct of any sort on the part of any party.
7. Voluntary and Knowing Action. The parties acknowledge that they have
thoroughly read and understand the terms of the Agreement, and that they are voluntarily entering
into the Agreement to resolve the matter.
8. Rescission/Revocation. The Agreement is subject to the following
rescission/revocation periods as provided by law:
Age Discrimination in Employment Act, 7 days. 29 U.S.C. § 6260)(1)(G);
Minnesota Human Rights Act, 15 days, Minn. Stat. § 363A.31, subd. 2.
Once the Agreement has been executed, the Employee understands that she has the right to
rescind and/or revoke the waivers and releases contained in this Agreement. To be effective,
the rescission or revocation must be in writing and delivered to the City either by hand or by
mail within the 7-day period for the Age Discrimination in Employment Act, or within the
15-day period for the Minnesota Human Rights Act. If delivered by mail, the rescission or
revocation must be:
(a) postmarked within the applicable 7- or 15-day period;
(b) properly addressed to the City; and
(c) sent by certified mail, return receipt requested.
The Citv's address is as follows: City Hall
Attention: City Administrator
3800 Laverne Avenue North
Lake Elmo, MN 55042
9. Complete Agreement. The parties acknowledge and represent that no promise or
representation not contained in the Agreement has been made to them.
10. Governing Law. The Agreement will be construed, enforced, and governed in
accordance with the laws of the State of Minnesota.
11. Reasons for Agreement. Pursuant to Minn, Stat. § 13.43, subd. 2(a)(6), the City
states that the reason it is entering into this settlement agreement is to amicably separate the
employment relationship with Employee, and provide her with certain benefits in light of her
resignation from employment.
IN WITNESS WHEREOF, the City and the Employee have approved and executed the
Agreement this day of , 2017.
CITY OF LAKE ELMO EMPLOYEE
By:
Mayor
By:
City Administrator
Cathy Bendel
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
BETWEEN THE CITY OF LAKE ELMO, MINNESOTA
AND CATHY BENDEL
THIS AGREEMENT is made and entered into this day of
, 2017 by and between the City of Lake Elmo, Minnesota
(the "City"), and Cathy Bendel (the "Employee").
WITNESSETH:
WHEREAS, the Employee has been employed by the City since March 19, 2012;
and
WHEREAS, upon instigation by the City, both the City and Employee have
concluded that it is in the best interests of both parties that the employment of the
Employee by the City be discontinued in accordance with the following terms and
conditions.
NOW, THEREFORE, IN CONSIDERATION of the following mutual
covenants and agreements, the sufficiency of which is hereby acknowledged by both
parties, the City and the Employee agree as follows:
1. Termination. tt-H0-6,,t,,,,,,,--,w,J4kJ1le City hereby at:,..-.FeE..-0..i.,41-0-k:tertninates
Employee as its Finance Director-po9kien effective March 2, 2017.
On February 1, 2017, Employee shall be placed on a paid leave status until the effective
date of termination. The City and the Employee waive any notice that would othenvise be
required.
2. Assistance with Transition. Employee shall assist with the transition caused
by this termination. Within two days of the execution of this Agreement, the Employee
shall provide all passwords and access codes to any arid all software. During the period of
paid leave, Employee shall use best efforts to respond to any request made by the City
Administrator or staff regarding the previously mentioned inforrnation or the location or
whereabouts of any information or files relating to the execution of the duties of Finance
Director no later than by 10 a.m. the next business day.
Severance Pay.
a, The City shall_ pay Employee for all time employed for the City up to the
effective date of termination, reduced by applicable federal and state
taxes, employment taxes, and other customary withholdings, in
settlement of all salary, overtime compensation, compensatory time,
claims in law and equity, as well as any administrative claims that the
Employee may have against the City or its officers, agents, employees
or insurers. The payment shall be made at the first regular payroll cycle
492923v. 7 LA515-2(,
of the City following the Employee's termination and compliance with
paragraph 2 in a check made payable to Cathy Bendel.
b. The City shall also pay Employee for any outstanding balance of paid
time off ("PTO"). As of March 2, 2017, the balance of hours in the
Employee's PTO account is 220 hours. This amount equates to
$8,844.00 prior to being reduced by applicable federal and state taxes,
employment taxes, and other customary withholdings. This payment
shall be made in a lump sum payment once all rescission periods have
passed.
c. The City shall also pay Employee an amount equal to six months of
salary or $41,808.00 prior to being reduced by applicable federal and
state taxes, employment taxes, and other customary withholdings.
d. Employee shall be eligible to continue participation in the group
medical and dental plan only in which she currently participates for a
period not to exceed six months from the date of termination.
Contingent upon Employee's continued compliance with this
Agreement, the City will continue to pay its share of the premium for
this plan on the same basis as exists on the date of this Agreement for
the full six-month period, or until Employee becomes eligible for
medical and dental coverage through another employer, whichever is
earlier. The City will deduct an amount equivalent to the employee's
share of six months' worth of premiums for the medical plan from the
severance payment being made by the City pursuant to paragraph 3 (a)
of this Agreement, such amount being $1,979.51. After the six month
period is over, and assuming that the Employee does not become
eligible for medical coverage through another employer, the Employee
is entitled to continuation of her health insurance benefits pursuant to
the Consolidated Omnibus Reconciliation Act ("COBRA"), 29 U.S.C. §
1161, et seq. If the Employee elects to continue her coverage pursuant
to COBRA, she is responsible for payment of her health insurance
premiums.
e. The City agrees that Employee has performed her duties professionally
and that the City will communicate this fact to any person or entity upon
Employee's request.
The Employee acknowledges that the payments described above are sufficient
consideration for the Agreement.
4. Employee Release. In consideration of the above referenced Severance Pay
at paragraph 3, the Employee, for herself, her heirs, administrators, representatives,
successors, and assigns, hereby releases and forever discharges the City, and its attorneys,
agents, representatives, employees, former employees, insurers, heirs, executors, and
492923v67 IA515-26
assigns of and from any and all, past, present, or future claims, demands, obligations,
actions, or causes of action at law or in equity, whether arising by statute, common law,
contract, or otherwise, and for all claims for damages of whatever kind or nature, and for all
claims for attorneys' fees and costs and expenses, including but not limited to all claims of
any kind arising out of the Employee's employment, including but not limited to
harassment, discrimination, retaliation. wrongful termination, defamation, intentional/
reckless/negligent infliction of emotional distress, constructive discharge, claims under the
City's employee handbook, or any actions arising from discussions in efforts to negotiate
the Agreement.
In consideration of the above referenced Severance Pay at paragraph 3, the
Employee .further acknowledges that she is knowingly and voluntarily waiving all possible
rights or claims arising under: the Minnesota Human Rights Act, Minnesota Statutes,
Chapter 363A; Minnesota Govenunent Data Practices Act. Minnesota Statutes Chapter 13:
Equal Employment Opportunity Act; Americans with Disabilities Act of 1990, As
Amended; Age Discrimination in Employment Act; Title VII of the Civil Rights Act, 42
U.S.C. §§ 2000e — e-17; Family and Medical Leave Act, 29 U.S.C. §§ 2601-54; Americans
with Disabilities Act, 42 U.S,C. § 12101-117; the Rehabilitation Act of 1973, 29 U.S.C. §
701-96i; the Public Employment Labor Relations Act, Minn. Stat. §§ 179A.01-.30; the
Minnesota Occupational Health and Safety Act, Minn. Stat. §§ 182.65-.676; the Minnesota
Whistleblower Act, Minn. Stat. §§ 181.931-.935; and the state and federal Fair Labor
Standards Acts, 29 U.S.C. §§ 201-19, Minn. Stat. §§ 177.21-.35. Employee acknowledges
that she has had an opportunity to consult with her attorney concerning the waiver and
content of the rights available under these laws.
It is specifically understood that the aforementioned Release is intended to include
only those claims arising from any conduct, event, or transaction occurring prior to the date
of this Agreement and intended to include any and all claims for unknown injuries and/or
damages, unanticipated injuries and/or damages, and unexpected consequences of injuries
and/or damages.
The Employee further acknowledges that she fully understands the terns of this
Separation Agreement and Release of Claims, that pursuant to the Age Discrimination in
Employment Act, she has had 21 days to consider it and seek the advice of her attorney
and/or financial advisor, and that she is signing it freely and voluntarily. The Employee
understands that if she signs this Agreement and Release prior to the expiration of the
2I-day period, that act constitutes a waiver of her right to consider the Agreement for 21
days.
The Employee understands that this is a termination accepted by the Employee in
return for the consideration to Employee expressed herein and acknowledges that she is
waiving any rights under city ordinance or state law, including any rights she may have to a
hearing.
5. City Release. In consideration of Employee releasing her claims in
paragraph 4, the City, for itself, its past and present officials, employees, and agents, and
successors and assigns (collectively. the -City Releasors"), hereby releases and forever
492923v, IA515-26
discharges Etnployee, and her attorneys, agents, representatives, heirs, executors, and
assigns of and from any and all, past, present, or future claims, demands, obligations,
actions, or causes of action at law or in equity, whether arising by statute, common law,
contract, or otherwise, and for all claims for damages of whatever kind or nature, and for all
claims for attorneysfees and costs and expenses, including but not limited to all claims of
any kind arising out of Employee's employment with the City or any actions arising from
discussions in efforts to negotiate the Agreement (collectively, the "Claims"). 4
City shall fully indemnify, defend, and hold Employee
harmless from any such Claims by any of the City Releasors.
It is specifically understood that the aforementioned Release is intended to include
only those Claims arising from any conduct, event, or transaction occurring prior to the
date of this Agreement and intended to include any and all Claims for unknown injuries
and/or damages, unanticipated injuries and/or damages, and unexpected consequences of
injuries and/or damages.
6. Representation by Counsel. Employee represents to the City that she has
had an opportunity to consult counsel of her choosing with respect to this Agreement and
all matters covered by and relating to it. Employee further agrees and represents that she
has not received or relied upon any advice or representations by the City or the City's
counsel in entering into this Agreement. The Agreement shall be binding upon Employee
and her attorneys and inure to the benefit of the City and its respective successors, assigns,
subsidiaries, heirs, executors, personal representatives, and agents.
7. Post -Separation Consultation. Employee and the City recognize the value
in Employee assisting the City during the transitional period following her termination
date. Accordingly, Employee agrees to make herself actively, reasonably, and readily
available to assist the City by providing consultation and advice on matters that were
previously within the scope of her job duties for a period not to exceed 60 days from the
termination date by phone or email as is convenient to Etnployee. The number of hours
that Employee shall be available shall be limited to one hour per business day during the 60
day period.
8. No Admission of Liability. It is specifically understood that by reason of
agreeing to the Agreement, the parties hereby released admit absolutely no liability,
misconduct, wrongdoing, unethical or unprofessional conduct of any sort, and it is further
specifically understood that the Agreement shall not be construed as an admission of
liability, misconduct, wrongdoing, unethical or unprofessional conduct of any sort on the
part of any party.
9. Voluntary and Knowing Action, The parties acknowledge that they have
thoroughly read and understand the terms of the Agreement, and that they are voluntarily
entering into the Agreement to resolve the matter.
10. Rescission/Revocation. The Agreement is subject to the following
rescission/revocation periods as provided by law:
492923v•:7 LA515-26
4
Age Discrimination in Employment Act, 7 days, 29 U.S.C. § 626(f)(1)(G);
Minnesota Human Rights Act, 15 days, Minn. Stat. § 363A.31, subd. 2.
Once the Agreement has been executed, the Employee understands that she has the
iight to rescind and/or revoke the waivers and releases contained in this Agreement. To be
effective, the rescission or revocation must be in writing and delivered to the City either by
hand or by mail within the 7-day period for the Age Discrimination in Employment Act, or
within the I 5-day period for the Minnesota Human Rights Act. If delivered by mail, the
rescission or revocation must be:
(a) postmarked within the applicable 7- or 15-day period;
(b) properly addressed to the City; and
(c) sent by certified mail, return receipt requested.
The City's address is as follows:
City Hall
Attention: City Administrator
3800 Laverne Avenue North
Lake Elmo, MN 55042
11. Complete Agreement. The parties acknowledge and represent that no
promise or representation not contained in the Agreement has been made to them.
12. Governing Law. The Agreement will be construed, enforced, and governed
in accordance with the laws of the State of Minnesota.
13. Reasons for Agreement. Pursuant to Minn. Stat. § 13.43, subd. 2(a)(6), the
City states that the reason it is entering into this settlement agreement is to amicably
separate the employment relationship with Employee, and provide her with certain benefits
in light of her termination from employment.
IN WITNESS WHEREOF, the City and the Employee have approved and
executed the Agreement this day of , 2017.
CITY OF LAKE ELMO EMPLOYEE
By:
Mayor
By:
City Administrator
Cathy Bendel
492923v47 LA515-26
5
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EXHIBIT A
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
BETWEEN THE CITY OF LAKE ELMO, MINNESOTA
AND CATHY BENDEL
THIS AGREEMENT is made and entered into this day of
, 2017 by and between the City of Lake Elmo, Minnesota (the
"City"), and Cathy Bendel (the "Employee").
WITNESSETH:
WHEREAS, the Employee has been employed by the City since March 19, 2012; and
WHEREAS, both the City and the Employee have concluded that it is in the best interests
of both parties that the employment of the Employee by the City be discontinued in accordance
with the following terms and conditions.
NOW, THEREFORE, IN CONSIDERATION of the following mutual covenants and
agreements, the sufficiency of which is hereby acknowledged by both parties, the City and the
Employee agree as follows:
1. Resivnation. The Employee hereby submits her resignation as Finance Director
effective The City and the Employee waive any notice that would otherwise be
required.
2. Assistance with Transition. The Employee shall assist with the transition caused by
this resignation. Within 2 days of the execution of this Agreement, the Employee shall provide all
passwords and access codes to any and all software. The Employee shall respond to any request
made by the city administrator, or staff regarding the previous mentioned information or the
location or whereabouts of any information or files relating to the execution of the duties of
Finance Director no later than by 10 a.m. the next business day.
Severance Pay.
a. The City shall pay the Employee for all time employed for the City up to her
resignation date, reduced by applicable federal and state taxes, employment
taxes, and other customary withholdings, in settlement of all salary, overtime
compensation, compensatory time, claims in law and equity, as well as any
administrative claims that the Employee may have against the City or its
officers, agents, employees or insurers. The payment shall be made at the first
regular payroll cycle of the City following the Employee's resignation and
compliance with paragraph 2 in a check made payable to Cathy Bendel.
b. The City shall pay the Employee for any outstanding balance of paid time off
("PTO"). As of March 2, 2017. the balance of hours in the Employee's PTO
account is 220 hours. This amount equates to $8,844.00 prior to being reduced
by applicable federal and state taxes, employment taxes, and other customary
withholdings. This payment shall be made in a lump sum payment once all
rescission periods have passed.
c. The City shall pay the Employee an amount equal to six (6) months of salary or
$41,808.00 prior to being reduced by applicable federal and state taxes,
employment taxes, and other customary withholdings.
d. The Employee is entitled to continuation of her health insurance benefits
pursuant to the Consolidated Omnibus Reconciliation Act ("COBRA"), 29
U.S.C. § 1161, et seq. If the Employee elects to continue her coverage pursuant
to COBRA, she is responsible for payment of her health insurance premiums.
The Employee acknowledges that the payments described above are sufficient
consideration for the Agreement.
4. Release. In consideration of the above referenced Severance Pay at paragraph 3,
the Employee, for herself, her heirs, administrators, representatives, successors, and assigns,
hereby releases and forever discharges the City, and its attorneys, agents, representatives,
employees, former employees, insurers, heirs, executors, and assigns of and from any and all, past,
present, or future claims, demands, obligations, actions, or causes of action at law or in equity,
whether arising by statute, common law, contract, or otherwise, and for all claims for damages of
whatever kind or nature, and for all claims for attorneys' fees and costs and expenses, including
but not limited to all claims of any kind arising out of the Employee's employment, including but
not limited to harassment, discrimination, wrongful termination, defamation, intentional/
reckless/negligent infliction of emotional distress, constructive discharge, claims under the City's
employee handbook, or any actions arising from discussions in efforts to negotiate the Agreement.
In consideration of the above referenced Severance Pay at paragraph 3, the Employee
further acknowledges that she is knowingly and voluntarily waiving all possible rights or claims
arising under: the Minnesota Human Rights Act, Minnesota Statutes, Chapter 363A; Equal
Employment Opportunity Act; Americans with Disabilities Act of 1990, As Amended; Age
Discrimination in Employment Act; Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e — e-17;
Family and Medical Leave Act, 29 U.S.C. §§ 2601-54; Americans with Disabilities Act, 42 U.S.C. §
12101-117; the Rehabilitation Act of 1973, 29 U.S.C. § 701-96i; the Public Employment Labor
Relations Act, Minn. Stat. §§ 179A.01-.30; the Minnesota Occupational Health and Safety Act, Minn.
Stat. §§ 182.65-.676; the Minnesota Whistleblower Act, Minn. Stat. §§ 181.931-.935; and the state and
federal Fair Labor Standards Acts, 29 U.S.C. §§ 201-19, Minn. Stat. §§ 177.21-.35. Employee
acknowledges that she has had an opportunity to consult with her attorney concerning the waiver
and content of the rights available under these laws.
It is specifically understood that the aforementioned Release is intended to include only
those claims arising from any conduct, event, or transaction occurring prior to the date of this
Agreement and intended to include any and all claims for unknown injuries and/or damages,
unanticipated injuries and/or damages, and unexpected consequences of injuries and/or damages.
The Employee further acknowledges that she fully understands the terms of this Separation
Agreement and Release of Claims, that pursuant to the Age Discrimination in Employment Act,
she has had 21 days to consider it and seek the advice of her attorney and/or financial advisor, and
that she is signing it freely and voluntarily. The Employee understands that if she signs this
Agreement and Release prior to the expiration of the 21-day period, that act constitutes a waiver
of her right to consider the Agreement for 21 days.
The Employee understands that this is a resignation and acknowledges that she is waiving
any rights under city ordinance or state law, including any rights she may have to a hearing.
5. Representation bv Counsel. The Employee represents to the City that she has had
an opportunity to consult counsel of her choosing with respect to this Agreement and all matters
covered by and relating to it. The Employee further agrees and represents that she has not received
or relied upon any advice or representations by the City or the City's counsel in entering into this
Agreement. The Agreement shall be binding upon the Employee and her attorneys and inure to the
benefit of the City and its respective successors, assigns, subsidiaries, heirs, executors, personal
representatives, and agents.
6. Post -Separation Consultation. Employee and the City recognize the value in
Employee assisting the City during the transitional period following her resignation date.
Accordingly, Employee agrees to make herself actively, reasonably, and readily available to assist
the City by providing consultation and advice on matters that were previously within the scope of
her job duties for a period not to exceed sixty (60) days by phone or in person as is convenient to
Employee.
7. No Admission of Liability. It is specifically understood that by reason of agreeing
to the Agreement, the parties hereby released admit absolutely no liability, misconduct,
wrongdoing, unethical or unprofessional conduct of any sort, and it is further specifically
understood that the Agreement shall not be construed as an admission of liability, misconduct,
wrongdoing, unethical or unprofessional conduct of any sort on the part of any party.
7. Voluntary and Knowing Action. The parties acknowledge that they have
thoroughly read and understand the terms of the Agreement, and that they are voluntarily entering
into the Agreement to resolve the matter.
8. Rescission/Revocation. The Agreement is subject to the following
rescission/revocation periods as provided by law:
Age Discrimination in Employment Act, 7 days, 29 U.S.C. § 626(0(1)(G
Minnesota Human Rights Act, 15 days, Minn. Stat. § 363A.31, subd. 2.
Once the Agreement has been executed, the Employee understands that she has the right to
rescind and/or revoke the waivers and releases contained in this Agreement. To be effective,
the rescission or revocation must be in writing and delivered to the City either by hand or by
inail within the 7-day period for the Age Discrimination in Employment Act, or within the
15-day period for the Minnesota Human Rights Act. If delivered by mail, the rescission or
revocation rnust be:
(a) postmarked within the applicable 7- or 15-day period;
(b) properly addressed to the City; and
(c) sent by certified mail, return receipt requested.
The Citv's address is as follows: City Hall
Attention: City Administrator
3800 Laverne Avenue North
Lake Elmo, MN 55042
9. Complete Agreement. The parties acknowledge and represent that no promise or
representation not contained in the Agreement has been made to them.
10. Governing Law. The Agreement will be construed, enforced, and governed in
accordance with the laws of the State of Minnesota.
I L Reasons for Agreement. Pursuant to Minn. Stat. § 13.43, subd. 2(a)(6), the City
states that the reason it is entering into this settlement agreement is to amicably separate the
employment relationship with Employee, and provide her with certain benefits in light of her
resignation from employment.
IN WITNESS WHEREOF, the City and the Employee have approved and executed the
Agreement this day of , 2017.
CITY OF LAKE ELMO EMPLOYEE
By:
Mayor
By:
City Administrator
Cathy Bendel
FINANCE DIRECTOR CONTRACT
CITY OF LAKE ELMO
CATHY BENDEL SCHACHTNER
1.0 PARTIES. The Agreement is date the 19th day of March, 2012 and is entered into by
and between the City of Lake Elmo, a Minnesota statutory city ("City) and Cathy Bendel
Schachtner ("Finance Director").
2,0 TERMS AND CONDITIONS. The City Hereby agrees to employ the Finance Director
and the Finance Director agrees to accept employment according to the following terms and
conditions:
A. Compensation/Performance Evaluation, Beginning salary will be $70,000 per
year. Performance evaluations will be conducted bi-annually or earlier if directed by
the City Council. A salary adjustment to $72,000 per year will be engaged if the
Finance Director receives a satisfactory performance evaluation in September of
2012. Future salary adjustments shall be commensurate with any annual increase as
awarded to City Employees (e.g. cost of living) at the discretion of the City Councit.
Other compensation increases, if any, will be awarded at the City Council discretion.
B. RetirementiDeferred Compensation, The City shall contribute to PERA as
required by State law for Finance Director or an alternate pension plan, if selected by
Finance Director, authorized by State law.
C. Insurance. Finance Director will be provided health, dental, life and disability
insurance coverage in same manner and at the same level as made available for
City employees.
D. Holidays. Finance Director will be entitled to the holidays specified in the governing
policy manual adopted by the City of Lake Elmo.
E. Personal Time Off (PTO). Upon employment, Finance Director will receive a 40-
hour bank of PTO. Thereafter, Finance Director will accrue PTO at the rate specified
in the governing policy manual. Finance Director may carryover from year to year up
to a maximum of that allowed by the governing policy manual adopted by the City
(currently 240 hours of PTO). Finance Director shall accrue at the rate for five to ten
years of service (currently 6.5 hours bi-weekly), and after two years of service shall
accrue at the rate for 10 to 15 years of service (currently 8.0 hours bi-weekly), and
thereafter shall accrue at the rate allowed by the governing policy manual adopted by
the City. The PTO bank balance is paid out upon separation.The payment shall not
be considered a severance benefit or severance compensation as such terms are
used in paragraph 3.0 of this Agreement.
F. Automobile/Expenses. Finance Director shall be entitled to be reimbursed for
mileage incurred in the performance of City business at the prevailing IRS rates.
G. Dues/Conferences/Subscriptions. The City will pay for due and related
membership costs to the MNGFOA and the GFOA, provided routine attendance is to
both regular meetings and annual continuing education conferences. Any out of state
travel must be approved in advance by the City Council.
H. Cell Phone. Finance Director will beprovided aCity cell phone for business calls,
3.0 TERMINATION OF AGREEMENT, Finance Director will aema at the will of the City
Administrator and the City Council and may be hamninmhed with or without cause at any time.
Any of the following will constitute banninobon for cause and vmuW result in no severance
1. Willful neglect ofduty. ,
2. Gross inefficiency or )noonnpehynma in office that Finance Director has fo{kad to
correct after areasonable written notice.
3. Malfeasance in Office, or actions which involve rnore| turpitude or would bring the
City into disrepute, conviction for anillegal act involving personal gain 1oEmployee.
Should the City hanninaba Finance Director's employment without cause. the City Council will
give the Finance [Hngotnr thirty (30) days written notice of termination. In the event of
termination without cause, the Finance Director shall be entitled to the following compensation:
1� O-3Gmonths —two (2)months regular salary;
2� 36-48 months —thnee (3) mmn8lo regular salary;
3. 48 months or more — four (4) months of regular salary.
If the Finance Director decides to terminate employment with the City ofLake Elmo, the Finance
D|naohor is required to give a minimum ofthirty (3O) days whtben notice of intent hoterminate and
shall be entitled to severance compensation,
4J0 GENERAL CONDITIONS OF -EMPLOYMENT. Nothing in this AgnaennerA shall pnavent,
limit orotherwise interfere with the � htcfUlo Employer to terminate the services of Employee
at any time, for any naason, subject only to the provisions of this Aonsannen\ and statutory
requirements. Furthermore, nothing in this Agreement shall p,even1. limit or otherwise interfere
with the right of Employee to resign at any time from her position with Ennp|oyor, subject only to
the provisions ofthis Agreement.
/N WITNESS W0HERE0F, the parties have hereunto sot their hands on the date first
written above,
CITYrOF, LAKE ELMO
FINANCE DIRECTOR
Cathy Bendel Schach
TI crrY
LAKE ELMO
STAFF REPORT
DATE: January 31, 2017
MOTION
TO: Mayor and City Council
FROM: Kristina Handt, City Administrator
AGENDA ITEM: Finance Director Benders Employment Contract
BACKGROUND:
When Cathy Bendel was hired by the City on March 19, 2012, the Finance Director and City entered into
an employment contract. A copy of the contract is attached.
ISSUE BEFORE COUNCIL:
Should the Council terminate the Finance Director's agreement?
PROPOSAL DETAILS/ANALYSIS:.
Section 3 of the contract lays out the termination provisions, both for cause and without cause. I am
recommending the City Council exercise the option to terminate without cause. In this event, the City
Council will give the Finance Director 30 days written notice. Furthermore, since the Finance Director
has been here more than 48 months she would be entitled to four months regular salary.
Resolution No. 2017-010 included in your packet approves termination of the contract without cause and
would place the Finance Director on a 30-day paid leave until the effective date of the termination, unless
she resigns earlier. Additionally, it offers the option to the Finance Director of a severance agreement,
which includes six months salary if the agreement is executed by February 28, 2017.
FISCAL IMPACT:
Four months salary is $27,872
Six months salary is $41,808
In addition, the paid time off (PTO) balance will be 220 hours by March 2, 2017 (the end of the 30-day
notice period) and valued at $8,844.
OPTIONS:
1) Approve Resolution No. 2017-010
2) Amend and then Approve Resolution No. 2017-010
Do not terminate the Finance Director's employment agreement
RECOMMENDATION:
"Motion to approve Resolution No. 2017-010."
ATTACHMENTS:
• Finance Director Contract
• Resolution No. 2017-010
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
BETWEEN THE CITY OF LAKE ELMO, MINNESOTA
AND CATHY BENDEL
THIS AGREEMENT is made and entered into this day of
, 2017 by and between the City of Lake Ehno, Minnesota
(the "City"), and Cathy Bendel (the "Employee").
WITNESSETH:
WHEREAS, the Employee has been employed by the City since March 19, 2012;
and
WHEREAS, upon instigation by the City, both the City and Employee have
concluded that it is in the best interests of both parties that the employment of the
Employee by the City be discontinued in accordance with the following terms and
conditions.
NOW, THEREFORE, IN CONSIDERATION of the following mutual
covenants and agreements, the sufficiency of which is hereby acknowledged by both
parties, the City and the Employee agree as follows:
1. Consensual Termination. The City hereby terminates Employee as its
Finance Director effective March 2, 2017. On February 1, 2017, Employee shall be
placed on a paid leave status until the effective date of termination. The City and the
Employee waive any notice that would otherwise be required.
2. Assistance with Transition. Employee shall assist with the transition
caused by this termination. Within two days of the execution of this Agreement, the
Employee shall provide all passwords and access codes to any and all software. During
the period of paid leave, Employee shall use best efforts to respond to any request made
by the City Administrator or staff regarding the previously mentioned information or the
location or whereabouts of any information or files relating to the execution of the duties
of Finance Director no later than by 10 a.m. the next business day.
Severance Pay.
a. The City shall pay Employee for all time employed for the City up to
the effective date of ten-nination, reduced by applicable federal and
state taxes, employment taxes, and other customary withholdings, in
settlement of all salary, overtime compensation, compensatory time,
claims in law and equity, as well as any administrative claims that the
Employee may have against the City or its officers, agents, employees
or insurers. The payment shall be made at the first regular payroll
cycle of the City following the Employee's termination and
492923v7 LA515-26
compliance with paragraph 2 in a check made payable to Cathy
Bendel.
b. The City shall also pay Employee for any outstanding balance of paid
time off ("PTO"). As of March 2, 2017, the balance of hours in the
Employee's PTO account is 220 hours. This amount equates to
S8,844.00 prior to being reduced by applicable federal and state taxes,
employment taxes, and other customary withholdings. This payment
shall be made in a lump sum payment once all rescission periods have
passed.
c. The City shall also pay Employee an amount equal to six months of
salary or $41,808.00 prior to being reduced by applicable federal and
state taxes, employment taxes, and other customary withholdings.
d. Employee shall be eligible to continue participation in the group
medical and dental plan only in which she currently participates for a
period not to exceed six months from the date of tennination.
Contingent upon Employee's continued compliance with this
Agreement, the City will continue to pay its share of the premium for
this plan on the same basis as exists on the date of this Agreement for
the full six-month period, or until Employee becomes eligible for
medical and dental coverage through another employer, whichever is
earlier. The City will deduct an amount equivalent to the employee's
share of six months' worth of premiums for the inedical plan from the
severance payment being made by the City pursuant to paragraph 3 (a)
of this Agreement, such amount being $1,979.51. After the six month
period is over, and assuming that the Employee does not become
eligible for medical coverage through another employer, the Employee
is entitled to continuation of her health insurance benefits pursuant to
the Consolidated Omnibus Reconciliation Act ("COBRA"), 29 U.S.C.
§ 1161, et seq. If the Employee elects to continue her coverage
pursuant to COBRA, she is responsible for payment of her health
insurance premiums.
e. The City agrees that Employee has performed her duties professionally
and that the City will communicate this fact to any person or entity
upon Employee's request.
The Employee acknowledges that the payments described above are sufficient
consideration for the Agreement.
4. Employee Release. In consideration of the above referenced Severance
Pay at paragraph 3, the Employee, for herself, her heirs, administrators, representatives,
successors, and assigns, hereby releases and forever discharges the City, and its attorneys,
agents, representatives, employees, former employees, insurers, heirs, executors, and
492923v7 LA515-26
2
assigns of and from any and all, past, present, or future claims, demands, obligations,
actions, or causes of action at law or in equity, whether arising by statute, common law,
contract, or otherwise, and for all claims for damages of whatever kind or nature, and for
all claims for attorneys' fees and costs and expenses, including but not limited to all
claims of any kind arising out of the Employee's employment, including but not limited
to harassment, discrimination, retaliation, wrongful termination, defamation, intentional/
reckless/negligent infliction of emotional distress, constructive discharge, claims under
the City's employee handbook, or any actions arising from discussions in efforts to
negotiate the Agreement.
In consideration of the above referenced Severance Pay at paragraph 3, the
Employee further acknowledges that she is knowingly and voluntarily waiving all
possible rights or claims arising under: the Minnesota Human Rights Act, Minnesota
Statutes, Chapter 363A; Minnesota Government Data Practices Act, Minnesota Statutes
Chapter 13; Equal Employment Opportunity Act; Americans with Disabilities Act of
1990, As Amended; Age Discrimination in Employment Act; Title VII of the Civil Rights
Act, 42 U.S.C. §§ 2000e — e-17; Family and Medical Leave Act, 29 U.S.C. §§ 2601-54;
Americans with Disabilities Act, 42 U.S.C. § 12101-117; the Rehabilitation Act of 1973, 29
U.S.C. § 701-96i; the Public Employment Labor Relations Act, Minn. Stat. §§ 179A.01-.30;
the Minnesota Occupational Health and Safety Act, Minn. Stat. §§ 182.65-.676; the
Minnesota Whistleblower Act, Minn. Stat. §§ 181.931-.935; and the state and federal Fair
Labor Standards Acts, 29 U.S.C. §§ 201-19, Minn. Stat. §§ 177.21-.35. Employee
acknowledges that she has had an opportunity to consult with her attorney concerning the
waiver and content of the rights available under these laws.
It is specifically understood that the aforementioned Release is intended to
include only those claims arising from any conduct, event, or transaction occurring prior
to the date of this Agreement and intended to include any and all claims for unknown
injuries and/or damages, unanticipated injuries and/or damages, and unexpected
consequences of injuries and/or damages.
The Employee further acknowledges that she fully understands the terms of this
Separation Agreement and Release of Claims, that pursuant to the Age Discrimination in
Employment Act, she has had 21 days to consider it and seek the advice of her attorney
and/or financial advisor, and that she is signing it freely and voluntarily. The Employee
understands that if she signs this Agreement and Release prior to the expiration of the 21-
day period, that act constitutes a waiver of her right to consider the Agreement for 21
days.
The Employee understands that this is a termination accepted by the Employee in
return for the consideration to Employee expressed herein and acknowledges that she is
waiving any rights under city ordinance or state law, including any rights she may have to
a hearing.
5. City Release. In consideration of Employee releasing her claims in
paragraph 4, the City, for itself, its past and present officials, employees, and agents, and
successors and assigns (collectively, the "City Releasors"), hereby releases and forever
492923 v7 LA515-26
discharges Employee, and her attorneys, agents, representatives, heirs, executors, and
assigns of and from any and all, past, present, or future claims, demands, obligations,
actions, or causes of action at law or in equity, whether arising by statute, common law,
contract, or otherwise, and for all claims for damages of whatever kind or nature, and for
all claims for attorneys' fees and costs and expenses, including but not limited to all
claims of any kind arising out of Employee's employment with the City or any actions
arising from discussions in efforts to negotiate the Agreement (collectively, the
"Claims"). The City shall fully indemnify, defend, and hold Employee harmless from
any such Claims by any of the City Releasors.
It is specifically understood that the aforementioned Release is intended to
include only those Claims arising from any conduct, event, or transaction occurring prior
to the date of this Agreement and intended to include any and all Claims for unknown
injuries and/or damages, unanticipated injuries and/or damages, and unexpected
consequences of injuries and/or damages.
6. Representation by Counsel. Employee represents to the City that she has
had an opportunity to consult counsel of her choosing with respect to this Agreement and
all matters covered by and relating to it. Employee further agrees and represents that she
has not received or relied upon any advice or representations by the City or the City's
counsel in entering into this Agreement. The Agreement shall be binding upon Employee
and her attorneys and inure to the benefit of the City and its respective successors,
assigns, subsidiaries, heirs, executors, personal representatives, and agents.
7. Post -Separation Consultation. Employee and the City recognize the value
in Employee assisting the City during the transitional period following her tennination
date. Accordingly, Employee agrees to make herself actively, reasonably, and readily
available to assist the City by providing consultation and advice on matters that were
previously within the scope of her job duties for a period not to exceed 60 days from the
termination date by phone or email as is convenient to Employee. The number of hours
that Employee shall be available shall be limited to one hour per business day during the
60 day period.
S. No Admission of Liability. It is specifically understood that by reason of
agreeing to the Agreement, the parties hereby released admit absolutely no liability,
misconduct, wrongdoing, unethical or unprofessional conduct of any sort, and it is further
specifically understood that the Agreement shall not be construed as an admission of
liability, misconduct, wrongdoing, unethical or unprofessional conduct of any sort on the
part of any party.
9. Voluntary and Knowing Action. The parties acknowledge that they have
thoroughly read and understand the ter-ns of the Agreement, and that they are voluntarily
entering into the Agreement to resolve the matter.
10. Rescission/Revocation. The Agreement is subject to the following
rescission/revocation periods as provided by law:
492923v7 LA515-26
4
Age Discrimination in Employment Act, 7 days, 29 U.S.C. § 626(f)(1)(G);
Minnesota Htunan Rights Act, 15 days, Minn. Stat. § 363 A.31, subd. 2.
Once the Agreement has been executed, the Employee understands that she has
the right to rescind and/or revoke the waivers and releases contained in this Agreement.
To be effective, the rescission or revocation must be in writing and delivered to the City
either by hand or by mail within the 7-day period for the Age Discrimination in
Employment Act, or within the 15-day period for the Minnesota Human Rights Act. If
delivered by mail, the rescission or revocation must be:
(a) postmarked within the applicable 7- or 15-day period;
(b) properly addressed to the City; and
(c) sent by certified mail, return receipt requested.
The City's address is as follows:
City Hall
Attention: City Administrator
3800 Laverne Avenue North
Lake Elmo, MN 55042
11. Complete Agreement. The parties acknowledge and represent that no
promise or representation not contained in the Agreement has been made to them.
12. Governing Law. The Agreement will be construed, enforced, and
governed in accordance with the laws of the State of Minnesota.
13. Reasons for Agreement. Pursuant to Minn. Stat. § 13.43, subd. 2(a)(6),
the City states that the reason it is entering into this settlement agreement is to amicably
separate the employment relationship with Employee, and provide her with certain
benefits in light of her termination from employment.
IN WITNESS WHEREOF, the City and the Employee have approved and
executed the Agreement this day of , 2017.
CITY OF LAKE ELMO EMPLOYEE
By:
Mayor
By:
City Administrator
Cathy Bendel
492923v7 LA515-26
5
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
BETWEEN THE CITY OF LAKE ELMO, MINNESOTA
AND CATHY BENDEL
THIS AGREEMENT is made and entered into this day of
, 2017 by and between the City of Lake Elmo, Minnesota
(the "City"). and Cathy Bendel (the "Employee").
WITNESSETH:
WHEREAS, the Employee has been employed by the City since March 19, 2012;
and
WHEREAS, upon instigation by the City, both the City and Employee have
concluded that it is in the best interests of both parties that the employment of the
Employee by the City be discontinued in accordance with the following terms and
conditions.
NOW, THEREFORE, IN CONSIDERATION of the following mutual
covenants and agreements, the sufficiency of which is hereby acknowledged by both
parties, the City and the Employee agree as follows:
1. Termination. t.-,-mplo,,,;-ct.--tfi4-,14The City hereby i,tkfterminates
Employee t4e-i-ei-o-iih1-4,0-ti.4as its Finance Director..1-tii.:)-ft effective March 2, 2017.
On February 1, 2017, Employee shall be placed on a paid leave status until the effective
date of tennination. The City and the Employee waive any notice that would otherwise be
required.
2. Assistance with Transition. Employee shall assist with the transition caused
by this termination. Within two days of the execution of this Agreement, the Employee
shall provide all passwords and access codes to any and all software. During the period of
paid leave. Employee shall use best efforts to respond to any request made by the City
Administrator or staff regarding the previously mentioned information or the location or
whereabouts of any information or files relating to the execution of the duties of Finance
Director no later than by 10 a.m. the next business day.
Severance Pay.
a. The City shall pay Employee for all time employed for the City up to the
effective date of termination, reduced by applicable federal and state
taxes, employment taxes, and other customary withholdings, in
settlement of all salary, overtime compensation, compensatory time,
claims in law and equity, as well as any administrative claims that the
Employee may have against the City or its officers, agents, employees
or insurers. The payment shall be made at the first regular payroll cycle
492923 LA5 I 5-26
of the City following the Employee's termination and compliance with
paragraph 2 in a check made payable to Cathy Bendel.
b. The City shall also pay Employee for any outstanding balance of paid
time off ("PTO"). As of March 2, 2017, the balance of hours in the
Employee's PTO account is 220 hours. This amount equates to
$8,844.00 prior to being reduced by applicable federal and state taxes,
employment taxes, and other customary withholdings. This payment
shall be made in a lump sum payment once all rescission periods have
passed.
c. The City shall also pay Employee an amount equal to six months of
salary or $41,808.00 prior to being reduced by applicable federal and
state taxes, employment taxes, and other customary withholdings.
d. Employee shall be eligible to continue participation in the group
medical and dental plan only in which she currently participates for a
period not to exceed six months from the date of termination.
Contingent upon Employee's continued compliance with this
Agreement, the City will continue to pay its share of the premium for
this plan on the same basis as exists on the date of this Agreement for
the full six-month period, or until Employee becomes eligible for
medical and dental coverage through another employer, whichever is
earlier. The City will deduct an amount equivalent to the employee's
share of six months' worth of premiums for the medical plan from, the
severance payment being made by the City pursuant to paragraph 3 (a)
of this Agreement, such amount being $1,979.51. After the six month
period is over, and assuming that the Employee does not become
eligible for medical coverage through another employer, the Employee
is entitled to continuation of her health insurance benefits pursuant to
the Consolidated Omnibus Reconciliation Act ("COBRA"), 29 U.S.C. §
1161, et seq. If the Employee elects to continue her coverage pursuant
to COBRA, she is responsible for payment of her health insurance
premiums.
e. The City agrees that Employee has performed her duties professionally
and that the City will communicate this fact to any person or entity upon
Employee's request.
The Employee acknowledges that the payments described above are sufficient
consideration for the Agreement.
4. Employee Release. In consideration of the above referenced Severance Pay
at paragraph 3, the Employee, for herself, her heirs, administrators, representatives,
successors, and assigns, hereby releases and forever discharges the City, and its attorneys,
agents, representatives, employees, former employees, insurers, heirs, executors, and
492923v6.2 LA515-26
assigns of and from any and all, past, present, or future claims, demands, obligations,
actions, or causes of action at law or in equity, whether arising by statute, common law,
contract, or otherwise, and for all claims for damages of whatever kind or nature, and for all
claims for attorneys' fees and costs and expenses, including but not !United to all claims of
any kind arising out of the Employee's employment, including but not limited to
harassment, discrimination, retaliation. wrongful termination, defamation, intentional/
reckless/negligent infliction of emotional distress, constructive discharge, claims under the
City's employee handbook, or any actions arising from discussions in efforts to negotiate
the Agreement.
In consideration of the above referenced Severance Pay at paragraph 3, the
Employee further acknowledges that she is knowingly and voluntarily waiving all possible
rights or claims arising under: the Minnesota Human Rights Act, Minnesota Statutes,
Chapter 363A;_,Minnesota Government Data Practices Act. Minnesota Statutes Chanter 13-,
Equal Employment Opportunity Act; Americans with Disabilities Act of 1990, As
Amended; Age Discrimination in Employment Act; Title VII of the Civil Rights Act, 42
U.S.C. §§ 2000e — e-17; Family and Medical Leave Act, 29 U.S.C. §§ 2601-54; Americans
with Disabilities Act, 42 U.S.C. § 12101-117; the Rehabilitation Act of 1973, 29 U.S.C. §
701-96i.; the Public Employment Labor Relations Act, Minn. Stat. §§ 179A.01-.30; the
Minnesota Occupational Health and Safety Act, Minn. Stat. §§ 182.65-.676; the Minnesota
Whistleblower Act, Minn. Stat. §§ 181.931-.935; and the state and federal Fair Labor
Standards Acts, 29 U.S.C. §§ 201-19, Minn. Stat. §§ 177.21-.35. Employee acknowledges
that she has had an opportunity to consult with her attorney concerning the waiver and
content of the rights available under these laws.
It is specifically understood that the aforementioned Release is intended to include
only those claims arising from any conduct, event, or transaction occurring prior to the date
of this Agreement and intended to include any and all claims for unknown injuries and/or
damages, unanticipated injuries and/or damages, and unexpected consequences of injuries
and/or damages.
The Employee further acknowledges that she fully understands the terms of this
Separation Agreement and Release of Claims, that pursuant to the Age Discrimination in
Employment Act, she has had 21 days to consider it and seek the advice of her attorney
and/or financial advisor, and that she is signing it freely and voluntarily. The Employee
understands that if she signs this Agreement and Release prior to the expiration of the
21-day period, that act constitutes a waiver of her right to consider the Agreement for 21
days.
The Employee understands that this is a termination accepted by the Employee in
return for the consideration to Employee expressed herein and acknowledges that she is
waiving any rights under city ordinance or state law, including any rights she may have to a
hearing.
5. Citv Release. In consideration of Employee releasing her claims in
paragraph 4, the City, for itself, its past and present officials, employees, and agents, and
successors and assigns (collectively, the "City Releasor0, hereby releases and forever
492)23v I,A5 15-16
discharges Employee, and her attorneys, agents, representatives, heirs, executors, and
assigns of and from any and all, past, present, or future claims, demands, obligations,
actions, or causes of action at law or in equity, whether arising by statute, common law,
contract, or otherwise, and for all claims for damages of whatever kind or nature, and for all
claims for attorneys' fees and costs and expenses, including but not limited to all claims of
any kind arising out of Employee's employment with the City or any actions arising from
discussions in efforts to negotiate the Agreement (collectively, the "Claims"). LI-t-4-4lie
l-fRiTne City shall fully indemnify, defend, and hold Employee
harmless from any such Claims by any of the City Releasors.
It is specifically understood that the aforementioned Release is intended to include
only those Claims arising from any conduct, event, or transaction occurring prior to the
date of this Agreement and intended to include any and all Claims for unknown injuries
and/or damages, unanticipated injuries and/or damages, and unexpected consequences of
injuries and/or damages.
6. Representation by Counsel. Employee represents to the City that she has
had an opportunity to consult counsel of her choosing with respect to this Agreement and
all matters covered by and relating to it. Employee further agrees and represents that she
has not received or relied upon any advice or representations by the City or the City's
counsel in entering into this Agreement. The Agreement shall be binding upon Employee
and her attorneys and inure to the benefit of the City and its respective successors, assigns,
subsidiaries, heirs, executors, personal representatives, and agents.
7. Post -Separation Consultation. Employee and the City recognize the value
in Employee assisting the City during the transitional period following her termination
date. Accordingly, Employee agrees to make herself actively, reasonably, and readily
available to assist the City by providing consultation and advice on matters that were
previously within the scope of her job duties for a period not to exceed 60 days from the
termination date by phone or email as is convenient to Employee. The number of hours
that Employee shall be available shall be limited to one hour per business day during the 60
day period.
8. No Admission of Liability. It is specifically understood that by reason of
agreeing to the Agreement, the parties hereby released admit absolutely no liability,
misconduct, wrongdoing, unethical or unprofessional conduct of any sort, and it is further
specifically understood that the Agreement shall not be construed as an admission of
liability, misconduct, wrongdoing, unethical or unprofessional conduct of any sort on the
part of any party.
9. Voluntary and Knowing Action., The parties acknowledge that they have
thoroughly read and understand the terms of the Agreement, and that they are voluntarily
entering into the Agreement to resolve the matter.
10. Rescission/Revocation. The Agreement is subject to the following
rescission/revocation periods as provided by law:
492923v I .A5 I 5-26
4
Age Discrimination in Employment Act, 7 days, 29 U.S.C. § 626(f)(1)(G);
Minnesota Human Rights Act, 15 days, Minn. Stat. § 363A.31, subd. 2.
Once the Agreement has been executed, the Employee understands that she has the
right to rescind and/or revoke the waivers and releases contained in this Agreement. To be
effective, the rescission or revocation must be in writing and delivered to the City either by
hand or by mail within the 7-day period for the Age Discrimination in Employment Act, or
within the 15-day period for the Minnesota Human Rights Act. If delivered by mail, the
rescission or revocation must be:
(a) postmarked within the applicable 7- or 15-day period;
(b) properly addressed to the City; and
(c) sent by certified mail, return receipt requested.
The City's address is as follows:
City Hall
Attention: City Administrator
3800 Laverne Avenue North
Lake Elmo, MN 55042
11. Complete Agreement. The parties acknowledge and represent that no
promise or representation not contained in the Agreement has been made to them.
12. Governing Law. The Agreement will be construed, enforced, and governed
in accordance with the laws of the State of Minnesota.
13. Reasons for Agreement. Pursuant to Minn. Stat. § 13.43, subd. 2(a)(6), the
City states that the reason it is entering into this settlement agreement is to amicably
separate the employment relationship with Employee, and provide her with certain benefits
in light of her teimination from employment.
IN WITNESS WHEREOF, the City and the Employee have approved and
executed the Agreement this day of . 2017.
CITY OF LAKE ELMO EMPLOYEE
By:
Mayor
By:
City Administrator
492923v4J LA5I5-26
Cathy Bendel
5
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Description DOCSOPEN-#492923-v7-Separation_Agt_and_Release_of_Claims
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