SETTLEMEI{T AGREEMENT AND GENERAL RELEASN,

This SETTLEMENT AGREEMENT AND GENERAL RELEASE (" Agrcement") is made

by and between the City of O'Fallon, Missouri ( the " City") and Kyle Kelley, together with his
heirs, executors, adrninistrators, successors, and assigns ( collectively " Kelley"), and the'oeffective
date" of this Agreement is the date on which the seven-day waiver period set out in Paragraph S(g)
has expired. The City and Kelley are collectively refened to herein as the " Parties."

WHEREAS, the following lawsuits are presenting pending by Kelley against the City
and/or the City's current or former agents, officials or employees in the Circuit Court for St.
Charles County, Missouri: Jeffi'ey Gray and Kyle Kellyv. City of O'Fallon, Missout'i, et al.,Case
No, lSll-CC00150, and,Iffi"ey Gray and Kyle Kelly v. City of O'Fallon, Missouri, Case. No.
o'Lawsuits");
20 I I -CC00764; ( collectively and

WHEREAS, there rnay be other EEOCA4CHR charges or claims asserted or unasserted,

which Kelley has or may claim to have, against the City or the Crty's agents, officials or employees
collectively " Charges"); and

WHEREAS, the Parties mediated all of Kelley's Lawsuits and alleged claims with
mediator Jelry Diekempel on Decemb er 28,2020, and continued settlement discussions thereafter;
and

WHEREAS, the City denies any and all allegations of wrongdoing against Kelley,
including those set forth in the Lawsuits and the Charges; and

WHEREAS, Kelley and the City have voluntarily agreed to resolve all disputes between
them, including all claims and causes of action that were, or could have been, asserted in
connection with the Lawsuits and the Charges;

NOW, THEREFORE, in consideration of the mutual covenants in this Agreement and

other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:

TERMS

1. No Admission Of Liability, Nothing contained in this Agteement, or any

statements oil communioations made by a party or its agent during the negotiations preceding this
Agreement, shall be considered admissions of liability by ol on behalf of any party.

2. Consideration. The prornises, representations, and undertakings set forth in this

Agreement shall constitute material and sufficient consideration for the Parties' respective
agrcements to enter into this Agreement and to be bound to its tems. Kelley expressly agrees and
acknowledges that the monetary consideration set folth in Paragraph 3 of this Agreement
constitutes separate material and sufficient consideration for his agreement to the telms set forth
herein, including for his release of all claims against the Released Parties ( as defined below), and
his dismissal with prejudice of the Lawsuits and the Charges.

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 3. Settlement Payment. In consideration for the promises, reptesentations, and
undertakings set forth in this Agreement, including the release of all claims asserted in the Lawsuits
and the Charges, Kelley will receive the following Settlement Payment:

The City shall pay Kyle Kelley a gross sum of Two Hundred Eighty Thousand Dollars and
zero cents ($280,000.00), as and for the settlement of all alleged claims, damages, costs and
attorneys' fees incumed in connection with the above Lawsuits and Charges and any other alleged
assefted and unasserted claims arising from Kyle Kelley's employment with the City. This
Settlement Payment shall be paid as follows:

onecheckmadepayabletoKyleKelleyintheamountofW
32.686..99J, less standard payroll
Hgndred.and Eishtv-Six Dollars and Thirty-Nine Cents ($
deductions, as and for any alleged claims for lost wages. An IRS Form W-2 shall be issued to
Kyle Kelley in connection with the Settlement Payment.

One check made payable to Kyle Kelley in the amount of @

Thousapd. Seven Hundred and Forty-Ir'ive Dollars and I'il'ty-l'our Cents ($13{1.745.54). as
ond for any alloged olaime fol emotional distress. An IRS Form i099 shall be issued to Kyle
Kelley in conneetion with the Seftlement Payment.

One check made payable to The Law Offices of John Lynch, LLC in the amount of One
Hundred Sixteen Thousand. " and Sixtv-Eiqht Dollars and Seven Cents
Siy.-e,.J{H,nd[ed
116.568.01. as and for all attorneys' fees and costs. An IRS Form 1099 shall be issued to Kelley
and his attorney in connection with the Settlernent Payment.

The above consideration shall be delivered to Kelley's attorney no later than thirty ( 30)
days following the effective date of this Agreement, and provided ftrilher the following has
occurred to the satisfaction of counsel for the City: (1) counsel for the City has received a copy of
this Agreement signed and dated by Kelley; (2) counsel for the City has received an executed IRS
Form W-9 from Kelley and his attorney; and ( 3) Kelley has filed a notice of withdrawal with both
the EEOC and the MCHR regarding any presently pending administrative charge of discrimination
filed by Kelley.

Kelley acknowledges and agrces that neither he, not any attot'ney or other petson acting or
purporling to act on his behal{ shall make any claim, complaint, petition, or other request for
attorneys' fees, costs, or any other rernuneration to be paid in connection with the Lawsuits or the
Charges, this Agreement, ol' any other matter pending between the Parties. Kelley further agrees
to indemnify and hold harmless each of the Released Patties for all expenses, including all costs
and attorneys' fees, which rnight be incuned in connection with such a olaim, complaint, petition,
or request,

Kelley represents and affirms that he is not aware of any liens and/or pending legal clairns
applicable to all or any poltion of the Settlement Payments. Kelley agtees to defend, indemnify,
and hold harmless the Released Parties against auy lien, claim, or action asserted against any
portion of the Settlement Payments. Kelley also agrees that he will be solely responsible to satisff
any liens or pending legal claims asserted against him in connection with the Settlernent Paynrents.

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Kelley further acknowledges and agrces that the imposition, or attempted imposition, of any lien
or legal claim against the Settlement Payrnent shall not impair or otherwise impact the validity or
operability of this Agreement, nor shall it excuse anything less than Kelley's ftlll cornpliance with
every obligation imposed upon him in connection with this Agreement.

4. Taxation. Kelley agtees that the City and the Released Parties make no
representation as to the taxability, or proper tax treatment,of the amounts paid pulsuant to
Paragraph 3 of this Agreement. If the Internal Revenue Service, the Missouri Department of
Revenue, or any other taxing authority determines that any portion of the payment called for by
Paragraph 3 is further taxable beyond the amounts withheld, Kelley acknowledges and agrees that
he shall be solely responsible for the payment of all taxes, penalties, and interest that might be
assessed against him, Kelley further agrees to release, indemniff, and hold harmless the Released
Parties for any and all amounts assessed and any othertax liability imposed against Kelley. Kelley
fufther agrces to rcimburse the Released Parties for any fees, costs, expenses, and/or attorneys'
fees incuned as a result of Kelley's failure to pay any taxes Kelley owes on this consideration.

5. No Settlement Payment Without Signing Agreement. Kelley acknowledges and

agrees that he has no independent entitlement to the Settlement Payment set forth in Paragraph 3o

and would not otherwise receive said payment, but for his willingness to sign this Agreement and
his commitment to fulfill each of the obligations that it imposes upon him. Kelley's execution of
this Agreements is a condition precedent to his receipt of any compensation or benefit outlined in
the Agreernent.

6. Additional Considerntion and Terms. The Parties further agree to the following
consideration and settlement tenns:

a) Upon the effective date of this Agreement, Kelley will submit a written document
stating that he is withdrawing and no longer pursuing his pending Human Resources complaint.
The City's Human Resources Department will then close its investigation and Kelley will be
returned fi'om paid administrative leave status and will be restored to his position. Kelley is not
permitted at the Police Depaftment or other City property and shall not engage in any police work.

b) Upon the effective date of this Agreement, and as a condition of this settlement,
Kelley shall immediately tender his voluntary and inevocable notice of retirement fi'om the City
of O'Fallon and its Police Departnrent, effective irnmediately after coming off of paid
administrative leave as discussed in Paragraph 6(a) of this Agreement. Kelley will be issued a
retirement card and retirement badge by the City within thirty ( 30) days of his effective rBtircment
date.

c) At the time of retirement, Kelley shall be eligible for retiree health insurance
benefits consistent with the City's tetiree benefits policy and plan. He shall receive payout of
vacation time and sick time accrued as of the date when the Parties sign this Agreement. Kelley
rnay rcceive the Police Department award ribbons/pins he qualifies for when they become
available. Kelley is entitled to no other accrued leave, compensation or benefrts.

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 d) The Parties agree that the City shall box Kelley's personal propefty remaining in
his office and locker and will have the same delivered to him within ten ( 10) days of the effective
date of this Agreement.

7, General Release Of All Claims.

a) Generul Releuse. Kelley, un behalf of himself and his present, past, and future
attorneys, insurers, representatives, agents, successors, and assigns, knowingly and voluntarily
releases and forever discharges, individually and collectively, the City of O'Fallon, Missouri,
along with, as applicable, any and all of the City's current and former councilmembers, officers,
directors, insurers, agents, attorneys, and employees, including but not limited to Mike Snowden,
Jo[n Griesenauer, Bill Hennessy, Timothy Clothier, Roy Joachimstaler, Philip Dupttis, Lenore
Toser-Adaz, and Bonnie Therlien, both individually and in their official capacities ( all of the
foregoing person$ and/or entities in this paragraph are referred to collectively as the " Released
Parties") of and fi'om any and all clains, demands, causes of action, damages, losses, and expenses,
whether known and unknown, asserted or unassetted, which Kelley has or may claim to have,
against any of the Released Parties as of the effective date of this Agreement, including, without
limitation, Kelley's claims as set out in the Lawsuits and Charges, as well as any claim or alleged
violation of, or liability for, any of the followingl

1) Any claim based on federal, state or local law, rule, regulation or otdinance,
including, but not limited to, claims of discrimination or harassment based on race, national origin,
religion, gender, age, disability, or some other plotected category that might be alleged under such
laws as Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of
1967,any claims under Sections l98l through 1988 of Title42 of the United States Code, the
Employee Retirement Income Secutity Act of 1974 ( except for any vested benefits under any tax
qualified benefit plan), the Americans with Disabilities Act, the Worker Adjustment and
RetrainingNotification Act, the Fair Credit Reporling Act, the Family and Medical Leave Aot, the
hnmigration Reform and Control Act, the Equal Pay Act, the Fair Labor Standards Act, the
Families First Coronavirus Relief Act, the Genetic Information Nondiscrimination Act, the
Missouri Human Rights Act, Mo. Rev. Stat. $213,010 et seq., as amended, the Missouri Hqual Pay
Law, Mo. Rev. Stat. $ 290.400 et seq., as amended, the Missouri Handicap Discrimination Law,
Mo. Rev. Stat. 9209,150 et seq., as amended, the Missouri State Wage, Payment, Work Hour, and
Dismissal Laws contained at Mo. Rev. Stat. $$ 290.010-290.580, the Missouri Genetic Testing
Information Bias Law, Mo. Rev. Stat. $ 735.1300 et, seq., as amended, the Missouri Smokers'
Rights Law, Mo. Rev. Stat. $ 290.145, as amended, the Missouri AIDS Law, Mo. Rev. Stat.
191.665, as amended, the Missouri Jury Duty
Law, Mo. Rev. Stat. $ 494.460, as amended, the
Missouri Voting Leave Law, Mo. Rev. Stat. $ 115.637, as amended, the Missouri Emergency
Response Leave Law, Mo. Rev. Stat. $ 320.336, as amended, the Missouri Witness/Crirne Victim
Law, Mo. Rev. Stat. $ 595.220, as amended, the Missouri Military Leave/Re-Employment fughts
Law, Mo. Rev. Stat, $ 40.490, as amended, the Missouri War on Temot Veterans Leave Law, Mo.
Rev. Stat. $ 288.042, as amended, the Missouri Service Lettet Law, Mo. Rev. Stat. $ 290.140 et.
seq., as amended, the Missouri Statutory Provisions Regardirrg Employer Use of Ernployee Social
Security Number, Mo. Rev, Stat. $ 407.1355, as amended, the Missouri Statutory Provisions

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Regarding Disclosure of Workers' Compensation Records, Mo. Rev. Stat $ 287.380, as amended,
the Missouri Statutory Provisions Regalding Off Duty Use of Tobacco & Alcohol, Mo. Rev. Stat.
290.145, as amended, the Missouri Statutory Provisions Regarding Employee Political Activities
Mo. Rev. Stat $ 115.637, as amended, the Missouri Statutory Provisions Regarding Drug &
Alcohol Testing, Mo. Rev. Stat. $ 290.145,as amended, Missouri Statutory Provisions Regarding
Retaliation/Disclimination for Filing Worker's Compensation Claim, Mo. Rev, Stat. $ 287.780, as
amended, the Missouri Statutory Provisions Regarding Wage Claim Retaliation, Mo. Rev. Stat. $
290.525,as amended, the Missouri Statutory Provisions Regarding Whistleblower Protection, Mo.
Rev. Stat $ 197.285, as amended and Mo. Rev. Stat. $ 198.006, as amended, as well as any other
federal, state o[ local lalv, common law, regulation, or ordinance;

2) Any claim for breach of contract or promise, expless or implied;

3) Any claim for breach of any term or condition of an employee handbook or

policy manual, including any claim for breach of any promise of specific treatment in specific
situations;

4) Any claim for unpaid wages, commissions, bonuses, ol other remuneration

for employment earned tlrough the effective date of this Agreement;

5) Any public policy, contract, tofi, or common-law claim, including, without

limitation, claims for wlongful discharge, breach of implied or express contract, harassment,
unpaid wages, leave, intentional or negligent infliction of emotional distress, defamation, slander,
or any negligence in the hiring, training, supervision, or retention of any employee; and

6) Any claim or other basis for recovering costs, fees, or other expenses,
including attorneys' fees incurred in such matters.

b) Claims Not Releaserl. Nothing in this Agreement shall be construed as a waivet or

release on Kelley's part of any rights that he may have to: (a) receive benefits and/or the right to
seek clairns for compensation for work-related injuries under applicable workers' compensation,
and/or unemployment compensation statutes; ( b) pursue claims which, by law, cannot be waived
by signing this Agreeruent; or (c) enforce this Agreenrent.

c) Colleclive/Clcrss Action Wcriver, For any claim not subject to release, and to the
fullest extent permitted by law, Kelley waives any right or ability to be a class or collective-action
representativen or to otherwise participate in any putative or certified class, collective or multi-
party action or ploceeding based on such a claim to which any of the Released Parties, including
the City, is a party,

8. Specific Release of Any Age Discriminntion Claims. As part of the clainrs

released above, by signing this Agreement, Kelley t'eleases and waives all claims arising under the
Age Discrimination in Employment Act of 1967 ( ADEA) against the Released Parties. Kelley
agrees and acknowledges as follows:

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 a) Kelley acknowledges that this waiver of rights or claims atising under the ADEA
is in writing, written in a manner calculated to be understood, and is understood by
Kelley.

b) Kelley expressly understands that this waiver refers to rights or claims arising under
the ADEA;

c) Kelley expressly understands that by execution of this document, he does not waive
any rights or claims under the ADEA that may arise after the date the waiver is
executed;

d) Kelley acknowledges that the waiver of rights or claims arising under the ADEA is
in exchange for the consideration payable to Kelley under this Agreement, which
is substantially above and beyond that to which Kelley is otherwise entitled except
for this Agreement;

e) Kelley acknowledges that the City expressly advises him to consult with an attorney
of his choosing prior to executing this Agreement and that he has, in fact, done so;

0 Kelley has been advised by the City that he is given a period of twenty-one ( 21)
days, which period started on Januaty 20, 2021, within which to consider and
execute this Agreement, and if Kelley does not execute and return this Agreement
to the City within that period, all offers made and terms contained herein are
revoked and considered null and void;

G) Kelley acknowledges that the City has advised him that he is entitled to revoke this
waiver of rights or claims arising undel the ADEA within seven ( 7) days after
executing this Agreement and that said waiver will not and does not become
effective or enforceable until the seven ( 7) day revocation period has expired;

0l) Kelley understands and agrees that this waiver is not tequested in connection with
an exit incentive or other employment termination program;

i) Kelley acknowledges that the City shall have no liability to him for any sum or
benefit to be paid under this Agleement until after the expiration of the seven ( 7)
day revocation period referenced in subparagmph ( g) above, notwithstanding any
other provision of this Agt'eenrent to the contrary; and

c) If Kelley exercises the tight to revoke, as referrcd to in subparagraph (g) above, this
Agreement shall be null and void and of no force or effect and all rights and
obligations of the Parties hereunder shall be cancelled and voided.

9. No Future Application [ orEmployment. As a condition of this Agrcement,

Kelley agrees that he will not, now or at any time in the future, apply for or accept employment
with the City or any department or division thereof, due to irreconcilable differences; and the City
rnay decline to employee Kelley in the future without being subject to liability.

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 10. Dismissal of Larvsuits and Charges. Within two ( 2) business days following
receipt of the Settlernent Payments described in Paragraph 3, Kelley agrees to dismiss the Lawsuits
and Charges with prejudice. Kelley and the City shall each bear their respective attorneys' fees
and costs associated with the Lawsuits and Charges, and the above-described consideration is
offered and accepted by Kelley in full, complete and final settlement, as fully described in this
Agteement, of all claims or potential claims refelenced in this Agreement. Each party relies on
the finality of this Agreement as a material factor inducing that party's execution of this
Agreement.

11. Medicare Has No Interest In The Settlement Amount. As a term of this

Agreement, the Parties have fully considered Medicare's intercsts pursuant to the Medicare
Secondary Payer rules, and, in doing so, Kelley has declared and hereby affir'ms that ( a) he is either
not eligible for benefits under Medicare or there is no lien or any related medical treatment that
could be claimed on a lien by Medicare; ( b) Medicare has no interest in any poltion of the
Settlement Payment; and ( c) Kelley has not made a claim against any Released Parly involving
any illness, injury, incident, or accident in which medical expenses were, or are expected to be,
incurred. Based on these representations, the Parties have determined that Medicare has no interest
in the payments under this Agreement and no reporting is required to Medicare. However, if
Medicare ( or the agency representing Medicare's interests) later determines that it does have an
intetest in the payment to Kelley under this Agreement, Kelley agl€es to indemnifu, defend, and
hold halmless for all expenses, including costs and attorneys' fees, that any Released Party might
incur in connection with any proceeding related to Kelley's medical expenses; to reasonably
cooperate with Released Parties concerning any information needed to satis$ the reporting
requircments under Section I I I of the Medicare, Medicaid, and SCHIP Extension Act of 2007, if
applicable, and also any claim that Medicare may make and for which Kelley is required to
indemniff Released Parties under this Paragraph; and to waive any and all future actions against
Released Palties for any private cause of action for damages prusuant to 42 U.S.C. $
l3esy(b)(3)(A).

L2. Confidentiality And Other Limitations On Communicntions.

a) Kelley acknowledges and agtees that the terms and conditions of this Agreement
were made and entered into in strict confidence and must remain confidential to the maximum
extent permitted by law. Kelley, on behalf of himself, and his present, past, and future attorneys,
insurerc, rcpresentatives, agents, successols, and assigns, prornises, warrants, and rcpresents that
he shall'not directly or indirectly disclose or offer to disclose, and has not directly or indirectly
disclosed, plivately or publicly, any of the terms or conditions of this Agreement or the
negotiations leading to this Agrcement, to any person or entity, including, without limitation, any
member ofthe pdnt, electronic, or other nredia, nor has he disclosed it on any form of social media,
such as Facebook, Twitter, or any similar platform, with the exception of ( i) a disclosure required
by law or required to enforce or effectuate any obligations hereunder, including obtaining the
dismissal of the Lawsuits and Charges; ( ii) a disclosure to his attorneys and/or financial advisors,
all of whom are to be advised by Kelley of the confidential nature of this Agreement, and must
agee to the same; and ( iii) his spouse, who whorn is to be advised by Kelley of the confidential
nature of this Agreement, and must agree to the same. Kelley further acknowledges and agrees
that this confidentiality provision is an expless and absolute condition of this Agreement, is

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bargained-for consideration for this Agreement, and is not a mere recital. Kelley finally
acknowledges and agrees that any violation of the terms and conditions of this confidentiality
provision shall constitute a material breach of this Agreement.

b) Notwithstanding the foregoing, either Party may publicly state that they have
amicably resolved the litigation between them.

c) If Kelley is requested to diselose any or all of the terms of this Agreement as a

matter of law (such as pursuant to a subpoena), he shall promptly notiff the City of such fact, in
writing, so that it has the opportunity to contest that disclosure. If no objection is made within ten
10) business days of delivery of the notice, or if a court of competent jurisdiction, arbitrator, ot
government body orders such disclosure ( irrespective of whether the notice has been effectuated

or the ten ( 10) business days has run), then he may make such disclosure.

d) Kelley acknowledges and agrees that, in the event a coutt of competentjurisdiction

concludes that he has breached the confidentiality obligations contained in this Agreement, and in
addition to any non-monetary relief that a court may award the City, he shall pay to the party ot
parties aggrieved by the hreac.h any costs, inc.luding attorneys' fees, incurred in seeking
enforcement for the breach of the confidentiality obligation contained in this Agreement.

13. Return Of Property. Kelley affrrms that he has returned to the City all City
property, files, memoranda, records, other docnments, keys, and all other physical properly that he
received from the City.

14. Governing Larv And Interpretation. This Agreement shall be govemed and
construed in accorclance with the laws of the State of Missouri without regard to its conflict of
laws provisions. In the event of a breach of this Agreement, any of the Parties may institute an
action specifically to enforce any term or terms of this Agreement or seek any damages for breach.
All suits, proceedings, and other actions relating to, arising out of, or in connection with this
Agreement shall be subnritted tolhe in personanr jurisdiction of the coutts ofthe State of Missouri.
Should any provision of this Agrcement other than the general rclease language be declared illegal
or unenforceable by any court of competent jurisdiction, and if it cannot be rnodified to be
enforceable, then such provision shall immediately become null and void, leaving the remainder
of this Agreement in full force and effect.

15. Waiver And Amendment In Writing. This Agreement rnay not be modified,
altered or changed except upon express written consent of all parlies in a writing signed by all
pafties, which writing shall make specifrc reference to this Confidential Settlement Agreement and
General Release, Moreover, no waiver or modification is intended or shall be implied fiom any
conduct during the life of the Agreement.

16. Entire Agrcement. This Agreement sets forth the entire agteement between the
Parties hereto, and it fully supersedes any prior agreements or understandings between the Parties.
Furthermore, Kelley acknowledges that he has not relied on ally representations, promises, ol'
agreements of any kind made to hinr in connection with his decision to accept this Agteement,
except for those set forth in this Agreement. The Parties are relying on their own judgment. The

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Parties also specifically affu'm that this Agrcement clearly expresses their intent to waive
fraudulent inducement claims and that they disclaim any reliance on representations about any of
the specific matters in dispute.

17. Joint Drafting And Advice Of Counsel. In interpreting this Agreement, the
Parties expressly agree that this Agreement was prepared by the Parties jointly and that no
ambiguity shall be resolved against any Party on the basis that it was lesponsible or primarily
rosponsible for having drafted this Agreement. The Parties further acknowledge that they have
had the opportunity to review this Agreement with counsel of their choosing.

18.Signatures. This Agrcement may be signed in counterparts, each of which shall

be deemed an original, but all of which, taken together shall constitute the same instrument. A
signaturc made on a faxed or electronically mailed copy of the Agrrement or a signature
transmitted by facsimile or electronic mail will have the same effect as the original signaturc.

KYLE KELLEY, FRtrILY AND KNOWINGLY, AND AFTER DUE

CONSIDERATION AND WITH THE OPPORTUNITY TO CONSULT WITH COUNSEL
OF HIS CHOOSING RNGARDING THIS AGREEMENT, ENTERS INTO THIS
CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE
INTENDING TO WAIVtr, SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT
HAVE AGAINST THA CITV OF' O'F'ALLON, MISSOURI AND ANY AND ALL
RtrLDASED PARTIES.

Agreed accepted by Kyle Kelley:

u Date: I 2.1

Kyle ley

Agleed and accepted by the City of O'Fallon, Missouri:

By: Date: /' 28'z I

Title: J*,.u ,s,f ro f o-

4827{964{039, v.2