04-09-2019 Town Manager Employment Agreement - HeilTOWN OF AVON
TOWN MANAGER EMPLOYMENT AGREEMENT
THIS TOWN MANAGER EMPLOYMENT AGREEMENT (the "Agreement") is effective
April 9, 2019 and is by and between Eric J. Heil, (the "Manager") and the Town of Avon,
Colorado (the "Town"), a Home Rule municipality in the State of Colorado (individually, a
"Party" and collectively, the "Parties"), and is made to set forth the terms and conditions of
Manager's employment with the Town.
NOW, THEREFORE, in consideration of the mutual promises and payments herein contained,
the Parties agree to the following terms and conditions:
1.0 EMPLOYMENT. Manager is employed as Town Manager of the Town for an indefinite
period as an at -will employee, subject to: the terms and conditions of this Agreement; the Town of
Avon Employee Policies & Procedures, effective April 25, 2016; the Town of Avon Compensation
& Benefits Programs, effective January 1, 2016; and the Avon Home Rule Charter, as each and all
may be amended from time to time.
2.0 DUTIES. Manager is employed as Town Manager in a full-time capacity, with such duties
and functions as are specified in the Town of Avon Home Rule Charter, as may be specified by
ordinance or in the Avon Municipal Code, and as may be directed by the Town Council.
3.0 COMPENSATION.
3.1 BASE SALARY. The Town agrees to pay Manager a base annual salary ("Base
Salary") of ONE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($175,000.00),
which shall be paid on and from the Commencement Date. Payment of the Base Salary
under this Agreement shall be made in equal installments on a biweekly basis during the
term of this Agreement. The Base Salary shall be prorated for 2019 to reflect the
Manager's Commencement Date, and for any other calendar year in which the Manager is
employed for fewer than 12 months.
3.2 AUTOMOBILE ALLOWANCE. Manager shall receive FIVE HUNDRED
DOLLARS ($500.00) per month as additional, taxable compensation in return for his use
of his own, owned automobile in conducting Town business, which shall be paid on and
from the Commencement Date. The Manager shall be expected to use his personal vehicle
for travel to and from business meetings and on trips related to performance of Town
Manager duties. The Manager shall, therefore, not be eligible for mileage reimbursement.
3.3 HOUSING ALLOWANCE. Manager shall receive FIVE HUNDRED
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SEVENTY DOLLARS ($570.00) per month as additional, taxable compensation to defray
the costs of maintaining a primary residence in Avon, Beaver Creek, or EagleVail,
Colorado. This payment shall be reduced by half, to TWO HUNDRED EIGHTY-FIVE
DOLLARS ($285.00) per month, if the Manager maintains a residence in Homestead,
Edwards town center, Singletree, Arrowhead, or Bachelor Gulch, Colorado. No amount
will be paid to the Manager in accordance with this Section 3.3 if the Manager maintains
his primary residence in any community other than those listed above.
3.4 RETIREMENT. Beginning on the Commencement Date, the Town shall
contribute an amount into the Town of Avon Public Employees Money Purchase Pension
Plan (the "401(a) Plan") equal to that amount the Manager defers into the 401(a) Plan.
As of the Commencement Date, that amount is eleven percent (11%) of the Manager's
Base Salary. The Town's matching contribution shall be paid into the 401(a) Plan in
biweekly installments. In addition to the 401(a) Plan, the Manager shall be eligible to
participate in the Town's Section 457 Deferred Compensation Retirement Plan in
accordance with the terms and conditions of that plan, and to the extent that the Town
maintains that plan.
3.5 INSURANCE BENEFITS. The Town shall provide and pay that portion of the
premiums for health, dental, vision, and term life insurance for Manager and his dependents
that it pays on behalf of other full-time employees of the Town in accordance with Town
of Avon Compensation & Benefits Programs, effective January 1, 2016, as may be
amended from time to time (the "Insurance Benefits").
3.6 PAID TIME OFF. The Manager shall be entitled to paid time off ("Paid Time
Off') in accordance with Section 2.16 (a) of the Town of Avon Compensation & Benefits
Programs, effective January 1, 2016, as may be amended from time to time, provided that
Manager shall begin accruing Paid Time Off at the rate of an employee with five (5) years
of employment with the Town, which accrual shall begin on the Commencement Date.
Additionally, on Commencement Date, the Town will award the Manager eighty (80) hours
of Paid Time Off, which shall be immediately available for the Manager's use.
3.7 OTHER BENEFITS. Manager shall be entitled to participate in any other benefits
that are provided by the Town to other full-time, executive employees in accordance with
the applicable participation requirements.
3.8 COMPENSATION ADJUSTMENT. The Compensation of the Manager may be
adjusted based upon the Manager's annual performance evaluation, as set forth in Section
4 below, by the Town Council, subject to the Town Council's sole discretion. Any change
in Compensation shall be effective on such date as Council may determine in its sole
discretion. Compensation adjustments shall be made by motion and vote and do not require
amendment of this Agreement.
3.9 RELOCATION EXPENSES. The Town shall reimburse Manager for those
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direct moving expenses the Manager incurs prior to August 31, 2021, to move his primary
residence to any of the Eagle River Valley neighborhoods identified by name in Section
3.3 above, to a maximum of four thousand dollars ($4,000.00). The Manager shall present
receipts or other documentation to support all such reimbursements. The Town's
reimbursement of the Manager's relocation expenses may constitute taxable income to the
Manager and may be subject to withholding in accordance with applicable law.
4.0 PERFORMANCE REVIEW. The Town Council shall strive to complete the annual
performance review of the Manager in March of each calendar year, unless the Town Council
determines a different month during which to complete an annual performance review. The Town
Council also may require a performance evaluation at any time a majority of the Council deems a
review is necessary. The Town Council shall inform the Manager as to the Town Council's
opinion and expectations regarding his performance as Town Manager based upon such
performance criteria as the Town Council may utilize in its sole discretion.
5.0 COMMENCEMENT OF EMPLOYMENT AS TOWN MANAGER. The Effective
Date of the Agreement is April 9, 2019, irrespective of the date or dates upon which the Parties
execute it. Manager shall commence his duties as Town Manager on Monday, April 29, 2019,
("Commencement Date").
6.0 FACILITIES. The Town shall furnish office facilities and assistance for Manager as the
Town Council deems appropriate for the performance of Manager's duties.
7.0 LIMITATION ON EXTERNAL PROFESSIONAL ACTIVITIES. Manager shall not
engage in any non -Town employment activities for compensation without the express written
consent of the Town Council. It is the intent of the Parties that Manager's employment will require
his full-time commitment.
7.1 Notwithstanding Section 7.0, the Manager shall be permitted to pursue his
occasional efforts as a professional musician, so long as they do not interfere with the
performance of his Town duties. While the Manager may accept payment for musical
engagements, he may not accept payment with respect to any engagement that the Town
funds, directly or indirectly, in whole or in part.
8.0 PARTICIPATION IN PROFESSIONAL ORGANIZATIONS. Participation in
professional organizations and voluntary programs is encouraged, provided they are consistent
with the responsibilities of the Town Manager and with the interests of the Town. The Town shall
pay Manager's membership fees and reasonable costs of participation in the International City
Manager's Association; the Colorado Bar Association; the American Planning Association; the
Colorado Chapter of the American Planning Association; and other memberships and professional
development activities the Town Council determines are consistent with his employment. The
Town shall also pay those attorney registration fees and reasonable continuing legal education
costs required for the Manager to maintain an active license to practice law in the State of
Colorado.
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9.0 CONFERENCE ATTENDANCE. The Town shall pay for all reasonable expenses
related to Manager's attendance at: the International City Manager's Association annual
conference; all Colorado Association of Ski Town monthly meetings; the Colorado Association of
Ski Towns annual conference; the Colorado Municipal League annual conference; and at least one
other out-of-state conference to be selected at the reasonable discretion of the Manager. Manager
may propose additional job related training, education, and professional memberships and
participation, which shall be subject to review and approval by the Town Council. Additionally,
the Manager must attend, at Town's expense, a leadership/management professional development
course by April 30, 2020. The coursework shall be selected by the Manager and shall require the
Town Council's prior approval.
10.0 TERMINATION WITH SEVERANCE. This Agreement may be terminated, and the
Manager shall receive the below -defined Severance, in the event of the following:
10.1 The Town may terminate Manager's employment without Cause ("Cause," as
defined below in Section 12), at any time, upon the vote of the majority of the Town
Council, and nothing contained in this Agreement shall restrict any Town Council member
from making a motion or voting to terminate Manager's employment without Cause at any
regular or special meeting.
10.2 The Manager may terminate his employment by resigning the position of Town
Manager for Good Reason. As used in this provision, "Good Reason" shall mean:
10.2.1 Upon receiving the recommendation that he resign from the Town Council,
as represented by a majority of its members; or
10.2.2 Upon the Town's breach of any material provision of Section 3.0 that
remains uncured for forty-five (45) consecutive days after Manager provides the
Town Council written notice of the alleged breach and demand for cure.
11.0 SEVERANCE.
11.1 The Town shall provide the Manager a severance payment ("Severance," as
defined below), if Manager's employment is terminated by the Town without Cause, or by
the Manager for Good Reason, so long as the Manager executes the Severance, Waiver,
and Release of Claims Agreement described below.
11.2 The Town shall not be obligated to pay Severance if Manager's employment is
terminated for Cause, defined below in Section 12, or in the case that Manager resigns
voluntarily without Good Reason, as set forth in Section 13.
11.3 The Severance payment shall equal four (4) months' Base Salary, at the Manager's
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then -current rate of pay, and the cost of Insurance Benefits as described in Section 3.5,
above, for the same four-month period.
11.3.1 Severance payments shall be subject to and conditioned upon the Manager's
execution of a Severance, Waiver, and Release of Claims Agreement, in a form
substantially similar to that attached to this Agreement as Exhibit One.
11.3.2 The Severance payment shall be paid in a lump sum within twenty (20) days
after the expiration of all applicable consideration and revocation periods provided
for in the Severance, Waiver, and Release of Claims Agreement.
11.3.3 The Severance payment shall be reduced by all taxes and other withholdings
required by law, and by the outstanding balance of any amount due and owing from
the Manager to the Town.
11.3.4 Severance shall include reimbursement to Manager for his payment of
premiums necessary to maintain Insurance Benefits through COBRA or other
applicable laws or regulations providing continuation of coverage for four (4)
months following the termination of his employment by the Town without Cause,
or by the Manager for Good Reason.
12.0 TERMINATION FOR CAUSE WITHOUT SEVERANCE. This agreement may be
terminated for Cause, at any time, upon the vote of the majority of the Town Council.
12.1 For the purpose of this Agreement, "Cause" shall consist of:
12.1.1 Conduct by Manager which is fraudulent or dishonest, including the
Manager's intentional failure to provide known information to the Town Council
that is material to Town Council actions; or
12.1.2 Manager's conduct that, if proven, would constitute a criminal offense
evidencing poor character or judgment, or moral turpitude, where Town Council
finds that there is reason to believe that such conduct occurred; or
12.1.3 Negligence, malfeasance, misfeasance, or nonfeasance in office; intentional
or negligent violation of state or federal civil rights; or sexual harassment; or
12.1.4 Excessive use of alcohol or drugs, which renders Manager unfit or unable
to perform his duties, as determined by the Town Council.
12.2 If the Town Council intends to consider termination of Manager's employment for
Cause, the Town Council, at any time, upon the vote of the majority of such Council, shall
give Manager written notification stating the Cause for termination ("Notice of
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Termination for Cause"). If the Manager desires to question whether the matters stated
in the Notice of Termination for Cause are accurate, or whether they constitute Cause,
Manager shall have the right to do so on written notice ("Notice of Appeal") to the Town
Council given within ten (10) days after his receipt of the Notice of Termination for Cause.
Upon receiving the Manager's Notice of Appeal, the Town Council shall provide the
Manager a hearing before the Council within 15 business days. Such hearing shall be
conducted in accordance with rules of procedure reasonably established by the Town
Council. The Town Council's determination, which shall be delivered to the Manager
within five (5) business days of the Manager's appeal hearing, shall be final and shall not
be subject to further review.
12.3 If the Manager resigns upon notice from the Town Council that it is considering
terminating the Manager's employment for Cause, Town Council, in its sole discretion,
may elect to treat such resignation as a termination for Good Reason, with Severance, in
accordance with Section 10.2, above, or may elect to treat such resignation as a resignation
without Good Reason in accordance with Section 13.0 below, in which case such
resignation shall be effective immediately and Manager shall not be entitled to Severance.
13.0 RESIGNATION. As an at -will employee, if Manager voluntarily resigns Manager's
position with the Town in a manner not contemplated by Section 10, Manager shall strive to
provide a minimum of forty-five (45) days written notice, unless the Parties otherwise agree. Upon
the effective date of resignation, Manager shall be entitled to no further compensation or benefits
under this Agreement or otherwise, but will be compensated for accrued, but unused, Paid Time
Off in accordance with the Town of Avon Compensation and Benefits Programs, effective January
1, 2016, as may be amended from time to time.
14.0 ARBITRATION. Whenever a dispute arises with respect to this Agreement, or as to any
aspect of the Manager's employment or the termination thereof, that the Parties are unable to
resolve through negotiation or other informal process, then, upon written demand of either Party,
such dispute shall be submitted to binding arbitration conducted by the Judicial Arbiter Group,
Inc. of Denver, Colorado, or its successor, or by such other arbitrator as the Parties may mutually
select, pursuant to the rules and procedures determined by agreement of the Parties or, failing such
agreement, by the arbitrator. The arbitration hearing shall be held within sixty (60) days of
appointment of the arbitrator unless otherwise agreed by both Parties. Furthermore, each Party
shall be entitled to one deposition. The Colorado Rules of Evidence shall not apply unless
otherwise agreed by the Parties or determined by the arbitrator. Further, the arbitrator shall have
discretion to determine whether any proffered evidence is sufficiently reliable and probative to be
admitted. The determination of the arbitrator shall be final and absolute. The award of the
arbitrator may be entered as a judgment in any court in the State of Colorado or elsewhere. If the
Parties are unable to mutually agree on the selection of an arbitrator, then each Party shall select
an arbitrator and the two arbitrators shall select a third arbitrator who shall make the determination,
render final decisions, and issue an award. The Town shall bear the costs of any arbitration
proceeding, however the Town and the Manager shall each bear their own attorney's fees.
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Town Manager Employment Agreement
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The Parties intend this arbitration agreement to be a full and
complete waiver of their rights to seek redress in any dispute
between them related to the Manager's Town employment from a
court or before a jury,
15.0 INDEMNIFICATION. The Town shall defend, save harmless, and indemnify Manager
against any and all losses, damages, judgments, interest, settlements, fines, court costs, and other
liabilities incurred by, imposed upon, or suffered by Manager in connection with or resulting from
any claim, action, suit, or proceeding, actual or threatened, arising out of an alleged act or omission
in the performance of Manager's duties as Town Manager or resulting from the Manager's exercise
of judgment or discretion in connection with his proper performance of duties or responsibilities
on behalf of the Town, except to the extent the act, omission, or exercise involves the Manager's
reckless, willful, or wanton conduct; intentional misconduct; or, an act, omission or exercise that
meets the definition of Cause. Manager may request the Town to provide independent legal
representation acceptable to Manager at the Town's reasonable expense and the Town shall not
unreasonably withhold approval. Legal representation provided by the Town for Manager shall
extend until a final determination of the legal action including any appeals brought by either party.
Any settlement of any claim must be made with prior approval of the Town in order for
indemnification as provided in this Section to be available.
16.0 NOTICES. All written notifications contemplated in this Agreement shall be sent to the
following addresses via U.S. Mail or nationally recognized overnight courier, provided that the
Manager may amend the address for notification by providing written notice of such address
change:
If to the Town: If to Manager:
Mayor
Town of Avon
100 Mikaela Way
P.O. Box 975
Avon, CO 81620
Eric J. Heil
Home Address:
With Copy to:
Town Attorney
100 Mikaela Way
P.O. Box 975
Avon, CO 81620
17.0 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the Parties
as to the subject matter hereof and may not be changed orally, but only by written agreement signed
by both Parties.
18.0 BINDING EFFECT. The Agreement shall be binding upon the Town and Manager and,
as applicable, upon their heirs, personal representatives, successors, and authorized assigns.
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Town Manager Employment Agreement
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19.0 ASSIGNMENT. The rights and obligations of this Agreement are personal in nature and
shall not be assigned or otherwise conveyed by a Party without the prior written consent of the
other Party.
20.0 NO THIRD PARTY BENEFICIARY. It is expressly understood and agreed that
enforcement of the terms and conditions of this Agreement, and all rights of action relating to such
enforcement, shall be strictly reserved to the Town and Manager, and nothing contained in this
Agreement shall give or allow any such claim or right of action by any third person to this
Agreement. It is the expressed intention of the Town and Manager that any person other than the
Town or Manager receiving services or benefits under this Agreement shall be deemed to be an
incidental beneficiary only.
21.0 SEVERABILITY. The validity or partial invalidity of any provision of this Agreement
will not affect the validity of any other provision. In the event that any provision of this Agreement
is held to be invalid, the Parties shall negotiate and diligently seek to reach agreement regarding
the intent of the Parties concerning any such invalid provision. Accordingly, if any provision of
this Agreement is held to be invalid, the remaining provisions shall be deemed to remain in full
force and effect.
22.0 INDEPENDENT LEGAL ADVICE. The Manager acknowledges that the Town has
advised him to obtain independent legal advice with respect to entering into this Agreement, and
that he has obtained such independent legal advice to the extent he deemed appropriate. Manager
further acknowledges that he is entering into this Agreement with full knowledge of the contents
hereof, of the Manager's own free will, and with full capacity and authority to do so.
23.0 ARTICLE X, SECTION 20/TABOR. The Parties acknowledge that the Town is subject
to Article X, § 20 of the Colorado Constitution ("TABOR"). The Parties do not intend to violate
the terms and requirements of TABOR by the execution of this Agreement. It is understood and
agreed that this Agreement does not create a multi -fiscal year direct or indirect debt or obligation
within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the
contrary, all payment obligations of the Town are expressly dependent and conditioned upon the
continuing availability of funds beyond the term of the Town's current fiscal period ending upon
the next succeeding December 31. Financial obligations of the Town payable after the current
fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise
made available in accordance with the rules, regulations, and resolutions of the Town of Avon,
and other applicable law. Upon the Town's failure to appropriate such funds, this Agreement shall
be deemed terminated and the Manager shall be deemed terminated without Cause, unless such
action is the result of a prior termination for Cause pursuant to Section 12.
24.0 COUNTERPART EXECUTION. This Agreement may be executed by the Parties in
counterparts, which, together, shall form a single document.
Town of Avon
Town Manager Employment Agreement
April 9, 2019
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Signature Pages Follow
Town of Avon
Town Manager Employment Agreement
April 9, 2019
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The Town of Avon, evidenced by the signature of its authorized representative, has read and
considered this Town Manager Employment Agreement, understands its terms and conditions, and
hereby agrees to employ Eric J. Heil as Avon Town Manager on the terms and conditions set forth
herein.
TOWN OF AVON, COLORADO
Sarah Smith, Mayor
ATTEST:
0916
Date
Brenda Torres, Acting Town Clerk Date
APPROVED AS TO FORM:
Kevin C. Paul
Special Counsel to the Town of Avon
Town of Avon
Town Manager Employment Agreement
April 9, 2019
Page 10 of 20
The Town of Avon, evidenced by the signature of its authorized representative, has read and
considered this Town Manager Employment Agreement, understands its terms and conditions, and
hereby agrees to employ Eric I Heil as Avon Town Manager on the terms and conditions set forth
herein.
TOWN OF AVON, COLORADO
no
Sarah Smith, Mayor Date
ATTEST: i'
Brenda Torres, Acting Town Clerk Date
Ill 1103 IM :I UV I
Kevin C. Paul
Special Counsel to the Town of Avon
Town of Avon
Town Manager Employment Agreement
April 9, 2019
Page 10 of 20
Eric J. Heil, as evidenced by his signature below, has read and considered this Town Manager
Employment Agreement, understands its terms and conditions, and hereby agrees to serve as Avon
Town Manager on the terms and conditions set forth herein.
Town of Avon
Town Manager Employment Agreement
April 9, 2019
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TOWN OF AVON
TOWN MANAGER EMPLOYMENT AGREEMENT
EXHIBIT ONE:
Form of Severance, Waiver, and Release of Claims Agreement
Town of Avon
Town Manager Employment Agreement
April 9, 2019
Page 12 of 20
TOWN of AVON, COLORADO
SEVERANCE, WAIVER & RELEASE OF CLAIMS AGREEMENT
THIS DOCUMENT IS INTENDED AS AN EXAMPLE ONLY
AND DOES NOT CONSTITUTE A CURRENT OFFER OF SEVERANCE
FROM THE TOWN OF AVON TO THE TOWN MANAGER.
This Severance, Waiver, and Release of Claims Agreement (the "Agreement") is
entered into by and between the undersigned Town Manager, Eric J. Heil ("You") and
the Town of Avon, Colorado, and its respective elected officials, employees, agents,
representatives, attorneys, and insurers (collectively the "Town"). You and the Town
will be referred to collectively as the "Parties."
1. Your employment with the Town will conclude on
20 (the "Separation Date"),
upon which You execute this Agreement.
irrespective of the date
2. By your signature below, You acknowledge and agree that, as of the
Separation Date, You were paid all wages or salary, all accrued unused vacation time,
characterized by the Town as Paid Time Off, and any other compensation due and owing
to You through the Separation Date, less the applicable tax or other deductions required
by law, or deductions authorized by You in writing.
3. By your signature below, You agree that You have returned or, within seven
(7) days of the Separation Date, will return all the Town property, including all copies of
Town documents, which You have had in Your possession, custody, or control at any
time through the end of Your employment. Town property includes, but is not limited to,
Town files, notes, records, financial information, computer hardware, cellular phones,
credit cards, entry cards, identification badges, keys, and any tangible property or
materials of any kind that contain any Town proprietary or confidential information. You
further agree to return all relevant proprietary information related to the Town that is
currently loaded on any hard drive, flash drive, lap top, compact disc, or other electronic
medium in your control and You shall not maintain copies of such information after
returning it to the Town.
4. If You execute this Agreement, and do not revoke it, the Town agrees to
pay the "Separation Benefit," consisting of:
(a)
A single, lump sum payment in the amount of
Dollars ($
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April 9, 2019
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), which is equivalent to four (4) months' compensation at your regular rate of
pay, less all applicable deductions and local, state, and federal taxes. If You execute this
Agreement and do not revoke your execution, this amount will be paid to You within
twenty (20) days after the expiration of the revocation period provided for in this Agreement.
(b) Reimbursement of amounts You pay to continue your Insurance
Benefits for a period of four (4) months following the Separation Date. The Town will
issue this reimbursement to You within thirty (30) days of receiving reasonable evidence
that You paid the required monthly premium.
5. Should You make a claim for unemployment insurance benefits, the Town
will not contest or oppose any award of such benefits, but will accurately respond to
inquiries submitted to the Town by the Colorado Department of Labor and Employment.
6. Other than the continuation of health insurance benefits under COBRA, as
of the Separation Date, You shall not be eligible to participate in any of the Town's health
benefit plans, including, but not limited to, any plans or programs of medical, dental, or
vision insurance. Likewise, as of your Separation Date, You shall not be eligible to
participate in the Town's other employee benefit plans. Nothing in this Section shall
prevent You from participating in a COBRA continuation coverage program or any similar
state medical and dental insurance continuation coverage program ("COBRA
continuation coverage'.
7. YOU SHALL BE RESPONSIBLE FOR TIMELY ELECTION OF COBRA
CONTINUATION COVERAGE AND FOR ALL COBRA CONTINUATION COVERAGE
PAYMENTS. YOUR FAILURE TO TIMELY ELECT COBRA CONTINUATION
COVERAGE OR TO TIMELY REMIT COBRA CONTINUATION COVERAGE
PREMIUMS SHALL CAUSE AN IMMEDIATE LOSS OF YOUR COBRA
CONTINUATION COVERAGE WITHOUT FURTHER NOTICE.
8. You agree that You desire to receive the Separation Benefit, and that the
amount offered to You is above and beyond that to which You would otherwise be
entitled. You further acknowledge that: your decision to release the Town is entirely
voluntary; You have not been pressured into accepting the Separation Benefit; and You
have enough information about the Separation Benefit to decide whether to execute this
Agreement. If, for any reason, You believe that your acceptance of the Separation Benefit
is not entirely voluntary, or if You believe that You do not have enough information, then
You should not execute this Agreement.
9. You acknowledge that You have read and that You understand this
Agreement.
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April 9, 2019
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10. You agree that, to the maximum extent permitted by applicable law, by
executing this Agreement, You hereby covenant not to institute any legal or
administrative proceeding against the Town and are fully, finally and forever releasing
any and all claims that You have or may have against the Town, to the maximum extent
permitted by law, as follows:
(a) You agree that by executing this Agreement, You intend to release
and forever discharge, and in fact release and forever discharge, the Town and its past
and present trustees, officers, agents, insurers, attorneys, assigns, and other
representatives of any kind (collectively the "Released Parties") from any and all claims,
demands, rights, liabilities, and causes of action of any kind or nature, known or unknown,
arising prior to or through the date that You execute this Agreement; and
(b) You agree that your release includes, but is not limited to any and
all claims, demands, rights, liabilities and causes of action arising or having arisen out of
or in connection with your employment or termination of employment with the Town;
and
(c) With the exception of claims for the Separation Benefit payable to
You and claims for any unemployment benefits to which You may be entitled, by your
signature below, You intend to and do release and waive any claim or right to further
compensation, benefits, damages, penalties, attorneys' fees, costs, or expenses of any
kind from the Town; and
(d) This release specifically includes, but is not limited to, a release of
any and all claims pursuant to:
(i) state or federal wage payment laws;
(ii) the Colorado Anti -Discrimination Act;
(iii) Title VII of the Civil Rights Act of 1964;
(iv) the Rehabilitation Act of 1973;
(v) the Reconstruction Era Civil Rights Acts, 42 U.S.C. §§ 1981-1988;
(vi) the Civil Rights Act of 1991;
(vii) the Americans with Disabilities Act & the Americans with
Disabilities Amendments Act of 2008;
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April 9, 2019
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(viii) Executive Order 11246;
(ix) the Family Medical Leave Act of 1993 and any other state or
federal family and/or medical leave acts;
Act;
(x) the Consolidated Omnibus Budget Reconciliation Act of 1985;
(A) the Uniformed Services Employment and Reemployment Rights
(xii) the Genetic Information Nondiscrimination Act of 2008;
(xiii) the Employee Retirement Income Security Act of 1974; and
(xiv) any other federal, state or local laws or regulations of any kind,
whether statutory or decisional. This release also includes, but is not limited to, a release
of any claims for wrongful termination, personal injury, breach of contract, defamation,
misrepresentation, violation of public policy or invasion of privacy, and tortious
interference with contract. This release covers claims that You know about as well as
those You may not know about; and
(e) To the extent allowed by applicable statutory and regulatory
law, the release contained in the preceding paragraph includes a waiver of
rights and claims which You may have arising under the federal Age
Discrimination in Employment Act of 1967 (Title 29, United States Code, 621
et seq.) (the-ADEA"). Pursuant to the Older Workers Benefit Protection Act
(Public Law 101-433; 1990 S. 1511), You acknowledge that this release is
intended to apply to, and You expressly agree that it shall be effective as a
waiver of, rights and claims arising under the ADEA; and
(f) This release does not include any claims that cannot be
released or waived by law. Nothing in this Agreement is intended to limit,
restrict or interfere with your right to engage in any protected activity under
the National Labor Relations Act. Further, by executing this Agreement, You
do not waive rights and claims that may arise subsequent to the execution of
this Agreement. Execution of this Agreement does not affect your ability to
participate in an investigation or proceeding conducted by the Equal
Employment Opportunity Commission, the Colorado Civil Rights Division, or a
comparable local agency. However, notwithstanding the foregoing, You agree
to waive your right to recover monetary damages in any amount awarded in
any charge, complaint, or lawsuit filed by You or by anyone else on your behalf;
and
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April 9, 2019
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(g) You agree that this Agreement is intended to be interpreted in the
broadest possible manner in favor of the Town, to include all actual or potential legal
claims that You may have against the Town, except as specifically provided otherwise in
this Agreement; and
(h) You further agree that You have not experienced any illness, injury,
or disability compensable or recoverable under the worker's compensation laws of the
State of Colorado that You have not reported to the Town and You agree that You will
not file a worker's compensation claim asserting the existence of any such illness, injury,
or disability; and
(i) You agree that You have been and are hereby advised by The
Town to consult with an attorney prior to executing this Agreement.
11. You agree that the Separation Benefit that You are accepting by signing this
Agreement has value to you. You agree that You would not be entitled to the Separation
Benefit without signing this Agreement. You acknowledge that You will receive the
Separation Benefit in exchange for the benefit You are providing to the Town and the
Released Parties by signing this Agreement. You also acknowledge and agree that the
Town will withhold from the Separation Benefit all applicable deductions and federal,
state and local taxes.
12. You agree that the Separation Benefit is the only benefit You are to receive
by signing this Agreement, and that in signing this Agreement You did not rely on any
information, oral or written, from anyone, including your supervisor, other than the
information contained in this Agreement.
13. You represent that You have not previously assigned or transferred any of
the legal rights and claims that You have waived by signing this Agreement. You agree
that this Agreement also binds all persons who might assert a legal right or claim on your
behalf, such as your heirs, personal representatives, and assigns.
14. You agree not to disparage the Town, its trustees, officers, employees,
agents, or reputation.
15. This Agreement may be executed in multiple counterparts, each of which
shall be an original, but all of which shall be deemed to constitute one instrument.
16. You agree that: (a) this Agreement constitutes the entire agreement
between You and the Town regarding its subject matter, without regard to any other oral
or written information that You may have received about this Agreement; (b) if any part
Town of Avon
Town Manager Employment Agreement
April 9, 2019
Page 17 of 20
of this Agreement is declared to be unenforceable, all other provisions of this Agreement
shall remain enforceable; and (c) this Agreement shall be governed by federal law and
by the laws of the State of Colorado, irrespective of the choice of law rules of any
jurisdiction.
17. You also agree that to the extent You are bound by a proprietary
information agreement or confidentiality agreement, those agreements are
not released hereby.
18. You have up to twenty-one (21) days after You receive this Agreement to
consider whether to execute this Agreement (the 'Deliberation Period'. During the
Deliberation Period, You should consult with an attorney of your choosing and consider
whether You wish to sign this Agreement. You agree that, after You have signed and
delivered this Agreement to the Town, this Agreement will not be effective or enforceable
until the end of a seven (7) day revocation period beginning the day that You deliver this
Agreement to the Town (the "Revocation Period'. You understand that You will not
receive the Separation Benefit as applicable until the Revocation Period has expired.
During the Revocation Period, You may revoke this Agreement without condition and in
your sole judgment, but You may do so only by delivering a written statement of
revocation to the Town. If the Town does not receive a written revocation notice by the
end of the Revocation Period, this Agreement will become legally enforceable and You
may not thereafter revoke this Agreement.
Remainder of page intentionally blanksignature page follows
Town of Avon
Town Manager Employment Agreement
April 9, 2019
Page 18 of 20
By signing below You: (a) acknowledge that You have read and understand this
Agreement; (b) understand that it is a legally binding document that may affect your
legal rights; and (c) have been advised to consult a lawyer of your choosing before signing
this Agreement and have had an opportunity to do so to the extent you deem appropriate.
ERIC J. HEIL
Signature:
Date:
Town of Avon
Town Manager Employment Agreement
April 9, 2019
Page 19 of 20
The Town of Avon, evidenced by the signature of its authorized representative, has read and
considered this Town Manager Severance, Waiver, and Release of Claims Agreement, understands
its terms and conditions, and hereby agrees to these terms and conditions with respect to the
departure from employment of Eric J. Heil as Avon Town Manager on the terms and conditions
set forth herein.
TOWN OF AVON, COLORADO
Y:
ATTEST:
Mayor
Town Clerk
Town of Avon
Town Manager Employment Agreement
April 9, 2019
Page 20 of 20
Date
Date r,