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HomeMy WebLinkAbout11/03/2015 11 City Manager Separation Agreement - Tony O'Rourke 10 I l r V 11111 ,40 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 11. For Meeting of: November 3, 2015 ITEM TITLE: Resolution authorizing City Manager separation agreement SUBMITTED BY: Jeff Cutter, City Attorney — 575 -6030 SUMMARY EXPLANATION: City Manager Tony O'Rourke recently advised the City Council of his intent to resign from his position as City Manager, his last day of employment to be December 31, 2015. As a result of this notification, the City Council appointed the Mayor and Mayor Pro -Tem to meet with the City Attorney to prepare a Separation Agreement that would provide the specific terms and conditions of the City Manager's resignation from the City. The attached Separation Agreement provides the specific terms and conditions established by the Mayor and Mayor Pro -Tem, in cooperation with the City Manager. Resolution: X Ordinance: Other (Specify): Contract: X Contract Term: Start Date: End Date: Item Budgeted: Amount: Funding Source/Fiscal Impact: Strategic Priority: NA Insurance Required? No Mail to: Phone: APPROVED FOR 4Vetuft144.- City Manager SUBMITTAL: "T RECOMMENDATION: Prepared in accordance with Council instructions in cooperation with the Mayor and Mayor pro -tem, for further Council consideration: ATTACHMENTS: Description Upload Date Type D IResollutlion re Separatlion Agreement 10/ IResollutlion D Separatlion Agreement 10/ Contract RESOLUTION NO. R -2015- A RESOLUTION approving a Separation Agreement between the City and City Manager Tony O'Rourke that establishes the terms and conditions approved by the Parties with respect to the City Manager's resignation from his positon with the City and December 31, 2015 being the last day of his employment. WHEREAS, Tony O'Rourke has held the positon of City Manager for the City for the past three years; and WHEREAS, The City Manager has submitted his notice of resignation from the position of City Manager to the City Council and the City Council has accepted his resignation, agreeing that the last day of the City Manager's employment with the City shall be December 31, 2015; and WHEREAS, during a recent City Council meeting the City Council agreed to have the Mayor and Mayor pro -tem meet with the City Attorney to establish the terms and conditions of the City Manager's Separation Agreement with the City; and WHEREAS, the Mayor and Mayor pro -tem have agreed upon the terms and provisions included in the attached and incorporated Separation Agreement and have presented said Agreement to the City Council for consideration and approval; and WHEREAS, the City Council has determined that the terms and conditions set forth in the Separation Agreement represent a fair and reasonable resignation arrangement for both Parties concerned; Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Mayor is hereby authorized and directed to execute the attached and incorporated Separation Agreement By and Between The City of Yakima and Anthony H. O'Rourke, which Agreement has been determined by the City Council to represent a fair and reasonable arrangement between the Parties thereto concerning the City Manager's resignation from his positon with the City. ADOPTED BY THE CITY COUNCIL this 3rd day of November, 2015. Micah Cawley, Mayor ATTEST: Sonya Claar -Tee SEPARATION AGREEMENT By and Between THE CITY OF YAKIMA And ANTHONY H. O'ROURKE THIS SEPARATION AND RELEASE AGREEMENT is entered into this day of , 2015, by and between Yakima City Manager Anthony H. O'Rourke (hereinafter referred to as "Employee ") and the City of Yakima (hereinafter referred to as "Employer "). The consideration for this Agreement is the mutual undertakings set forth herein. NOW, THEREFORE, Employer and Employee do hereby agree as follows: 1. Resignation of Employee. Employee has submitted his resignation, which resignation is accepted immediately by Employer upon execution of this Separation Agreement, with the final day of employment pursuant to such resignation effective at midnight on December 31, 2015 (referred to in this Agreement as the "final day of employment "). 2. Separation Benefits. There will be six (6) months of severance pay paid to Employee as specifically described in Section 4 below, in addition to regularly due employment wages and benefits paid to Employee for continued employment from the effective date of this Agreement through the final day of employment on December 31, 2015 as set forth in Section 3 below. Effective on the final day of employment, Employee shall not receive any additional automobile allowance or any cost associated with the use of a City- issued cell phone. Employee understands and agrees that the benefits as set forth in this Section 2, the compensation due as set forth in Section 3 below, and the severance payment as described more completely in Section 4 below, as well as the mutual covenants and conditions of this Agreement constitute sufficient consideration supporting all releases herein. 3. Compensation Due. On the first regular City payday following the final day of employment, Employee shall be paid any regularly due compensation, accrued leave, and unused sick days payable to Employee in accordance with Employer's existing policies and procedures. Employee expressly acknowledges that he has no claims or entitlement to additional past or present pay or compensation from Employer, except as set forth herein, and he expressly waives claims for such additional compensation, pay or benefits not specifically set forth in this Agreement. Nothing in this Section or Agreement shall be construed to deny or limit Employee's rights to continuation of health coverage as authorized and provided in the Consolidated Omnibus Budget Reconciliation Act (COBRA). 4. Additional Consideration. As additional consideration to which Employee would not otherwise be entitled, on the first regularly scheduled payday following the final day of employment, Employer will make a lump sum severance payment to Employee of six (6) months of Employee's base salary. This lump sum severance payment shall be subject to normal payroll withholding taxes. Employee shall also receive COBRA health and medical insurance coverage, together with continued life insurance benefits as previously provided by the City, for a period not to exceed six (6) months following the final day of employment set forth in Section 1 above. Employee will be invoiced monthly by the City from the final Page 1 of 4 day of employment in the amount of the total applicable monthly payments for the COBRA health and life insurance coverages as Employee would have paid as an employee of the City for health and life insurance benefits. The City will pay the balance of those monthly insurance costs for each of the six (6) months Employee receives said benefits. All medical and life insurance benefits provided by the City for this medical and life insurance coverage shall cease upon the expiration of the sixth (6 month following the final day of employment or upon Employee's request for earlier termination of the monthly payments for medical and life insurance coverage, whichever shall first occur. 5. Recommendation. The current Mayor of the City of Yakima agrees to provide Employee with a letter of recommendation if and at such time as a recommendation is requested by Employee. 6. No Pending Claims. Employee represents that he has no pending claims, lawsuits or charges filed against Employer with any court or governmental agency. 7. Waiver and Mutual Release of Claims. In consideration of the benefits, consideration and the additional severance consideration described above, and as a material inducement to the Employee and Employer to enter into this Agreement, Employer and Employee release any past and present claims against the other party. As referred to herein, "past and present claims" mean those claims arising on or before the date the "Acceptance of Agreement" on this Separation Agreement is signed by Employee. Employer waives and releases its past and present claims, if any, against the Employee related to his employment with Employer. Employee releases his past and present claims, if any, against the Employer, Employer's elected and appointed officials, employees and agents arising out of his employment with Employer, including but not limited to release of claims for individual relief in agency proceedings. The waiver and release of any claims by Employee referred to in this Separation Agreement and this Section 7 are subject to the limitations referred to in Section 8 below. 8. Limitations on Release of Claims. Nothing in this Agreement including but not limited to the release of claims and non - defamation provisions, prevents Employee from filing a charge or complaint with or from participating in an investigation or proceeding conducted by the EEOC, NLRB, or any other federal, state or local agency charged with the enforcement of any laws, although by signing this release Employee is waiving rights to individual relief based on claims asserted in such a charge or complaint, except where such a waiver of individual relief is prohibited. 9. Release and Counsel. Employee understands and acknowledges the significance and consequences of this Agreement and expressly confirms that it is to be given full force and effect according to each and all of its expressed terms and provisions. Employee acknowledges that he has been given full opportunity and has been encouraged to consult an attorney of his choice regarding this Agreement. Knowing and understanding so, the undersigned accepts the above sums in full settlement hereof. 10. Non - admission. This Agreement shall not be construed as an admission by Employer of any liability to Employee, breach of any agreement between Employer and Employee, or violation by Employer of any statute, law or regulation, nor shall it Page 2of4 be construed as an admission of any misconduct or deficient performance or valid cause for termination of Employee. 11. Communications. It is the intention of the parties that Employee's separation be on an amicable basis. Employer and Employee mutually agree that they will not defame the other Party hereto. 12. Breach and Enforcement. Employee and Employer agree that this Agreement may be specifically enforced in court and may be used as evidence in a subsequent proceeding in which either party alleges a breach of this agreement. 13. Older Workers' Benefits Protection Act Provisions. In accordance with the requirements of the Older Workers' Benefits Protection Act, Employee expressly acknowledges the following: a. He has been advised by Employer to consult with an attorney prior to accepting this Agreement. b. He understands that he has twenty -one (21) days from the time in which he is first presented with this Agreement to consider whether or not to accept it. He also understands that while it is his right to decide to accept, enter into, and execute the Agreement before the end of that 21 -day period, that he is under no obligation to do so. For purposes of calculating this period, Employer and Employee acknowledge that Employee was first presented with this Separation Agreement on November 3, 2015, and that the twenty - one (21) day period expires November 24, 2015. Employee also understands that by returning the signed Agreement prior to November 24, 2015, he has KNOWINGLY AND VOLUNTARILY WAIVED ANY RIGHT TO THE STATUTORILY PRESCRIBED WAITING PERIOD AND HAS ACCEPTED THE SHORTENING OF THE STATUTORILY PRESCRIBED WAITING PERIOD, AND THAT THE DECISION TO DO SO WAS NOT INDUCED THROUGH FRAUD, MISREPRESENTATION, OR THREAT TO WITHDRAW OR ALTER THE OFFER HEREIN PRIOR TO THE EXPIRATION OF THE 21 -DAY TIME PERIOD. c. Employee also understands that for a period of seven (7) days following the execution of this Agreement, he may revoke the Agreement. He further understands that if he does not revoke the Agreement within the 7 -day period, this Agreement will be enforceable seven days after the date of acceptance. 14. Complete Agreement. This Agreement represents and contains the entire understanding between the parties in connection with the subject matter of this Agreement. The Agreement shall not be altered or varied except in a writing signed by Employee and Employer. It is expressly acknowledged and recognized by all parties that there are no oral or written collateral agreements, understandings or representations between the parties other than as contained in this document, and any such prior agreements are specifically terminated. Paragraph headings utilized in this Agreement are for reference convenience only and have no independent meaning. Page 3 of 4 15. Governing Law. Unless otherwise controlled by federal law, the interpretation and enforcement of this Agreement shall be governed by the laws of the State of Washington. 16. Reliance and Right to Consult with an Attorney. Employee represents and acknowledges that in executing this Agreement, he does not rely and has not relied upon any representation or statement not set forth herein made by Employer or by any of the Employer's employees, agents, representatives, or attorneys with regard to the subject matter, basis or effect of this Agreement or otherwise. Employee understands that he has the right to consult with an attorney. ACKNOWLEDGEMENT OF RECEIPT This Agreement was given to me on the date next to my signature: Anthony H. O'Rourke Date PLEASE READ CAREFULLY. THIS IS A VOLUNTARY SEPARATION AND RELEASE AGREEMENT. ACCEPTANCE OF AGREEMENT I have accepted and agree to this Agreement as of the date next to my signature. EMPLOYEE: Anthony H. O'Rourke Date EMPLOYER: CITY OF YAKIMA Micah Cawley, Mayor Date Page 4 of 4