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05/08/2012 02 Review City Manager Employment Agreement for Anthony H. O'Rourke o i . ill'''' 9! Wes.:- a'I''`' " BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. oR For Meeting of: May 8, 2012 ITEM TITLE: Review City Manager Employment Agreement SUBMITTED BY: Mayor Micah Cawley CONTACT Micah Cawley, Mayor, 575 -6050 PERSON/TELEPHONE: SUMMARY EXPLANATION: Resolution Ordinance Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR City Manager SUBMITTAL: 70/..."*.04. STAFF RECOMMENDATION: BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ draft contract EMPLOYMENT AGREEMENT FOR CITY MANAGER THIS EMPLOYMENT AGREEMENT (hereafter referred to as "Agreement"), is by and between the City of Yakima, Washington, a Washington municipal corporation (hereafter referred to as "City "), and Anthony H. O'Rourke (hereafter referred to by name or as "City Manager "). 17ry WHEREAS, the City desires to employ Anthony H. ORoir:ke as City Manager of the City of Yakima, as provided for in Article II of the City Charte ° of the City of Yakima (hereafter referred to as "City Charter "); and WHEREAS, the City, through its City Council, desires to provide forcertain benefits and compensation for the City Manager and to,establish conditions of employ appl to the City Manager; and WHEREAS, Anthony H. O'Rourke desires to acceptfemployment as City Manager of the City of Yakima under the terms and co .ditons set forth Ii rein• NOW, THEREFORE, in consideration ot ,the- mutual promises as set forth in this Agreement, the parties agree as follows:_ r y= ' n y r / Section 1. Employment. • , RF A. The City of Yakin% F hereby- employs and: appoints Anthony H. O'Rourke as its City Managex,, -e ffective Y © ' thedatet irovxded in Section 1B and under the terms of this Agreernentoperform,;, he duties functions specified in the City Charter, the akima Municipal „Code;Tand Washington law, and to perform such other legally #4 ermissible and r er duti'es "arid functions as the City Council shall from time to tie assign. . B. The City_':s- employe en.t of Anthony H. O'Rourke as City Manager shall be effective on July 2,'2012, This Agreement shall remain in effect until terminated by the City or by the City Maager as provided herein. Section 2. Salary and Evaluation. A. For the performance of services pursuant to this Agreement, the City agrees to pay the City Manager an annual base salary of $175,000 payable in installments at the same time as other City employees are paid. B. After the first year of the contract, the City Manager will receive pay compensation adjustments as shall be specifically authorized and approved by the City Council from 1 of 9 time to time. City Manager pay compensation increases shall not follow the compensation amendments set forth in the YMC for other management employees. This condition is intended to avoid any perception of unfair dealing or conflict of interest by the City Manager when negotiating pay compensation rates. C. The City may increase said base salary and /or other benefits of the City Manager in such amounts and to such an extent as the City Council may determine desirable on the basis of an annual performance evaluation. The annual evaluation shall be in such form as the Council deems appropriate and shall be made between July 1 and August 31 of each year in which this Agreement is effective. The City Manager's first annual evaluation shall b01 *sed on a work plan that includes, but shall not be limited to specific strategic,acconpi . hments and objectives that shall become the basis for annual evaluations and 61l be cooperatively determined and adjusted from time to time Pa`.greed between thie';City Manager and the Council. The essential elements of theafirst year work plan shall'uiclude: 4- • Conduct an ICMA Citizen's Survend Bencfiiark Report y � p • Employee Survey • Strategic Plan FY 2014 • Annual Business Plan F,172 is Five Year Financial Plani ' 013f- 2018 • Establishment of Commuiications/Meting Team from existing employees • Organizational Quality Inifitive Plan • Organiz tion ManagemenPand Process Review The review = TrOeess shall% be the City`.,Council's resource to identify areas of performance that may require modificatio 7mor improvement, as well as to propose new object ves ,, F,ollowing'the annual' valuaf on process the Mayor shall provide the City Manager °- itl ; a, written>=summary statement of the Council's findings and comments and thereafter' shall arrange an x opportunity for the City Manager to discuss the ,r evaluation with the t ?ouncil:° x D. Noth.:;,in this Section shall require the City to increase the base salary or other benefitsif,the City „Manager. Furthermore, the City's failure to conduct any of the scheduled'eyaluations shall not constitute non - compliance with a material provision of this Agreement;�' Section 3. Duties and Obligations. A. The City Manager shall have the duties, responsibilities and powers of said office under the City Charter, the Yakima Municipal Code, and Washington law. The City Manager agrees to perform all duties and responsibilities faithfully, industriously, and to the best of his ability and in a professional and competent manner. Page 2 of 9 B. The City Manager shall remain in the exclusive employ of the City and shall devote all such time, attention, knowledge and skills necessary to faithfully perform his duties under this Agreement. The City Manager may, however, engage in educational and professional activities upon receipt of approval by the City Council, provided that such activities shall not interfere with his primary obligation to the City as its City Manager. The City Manager shall dedicate no less than an average of forty (40) hours per week in the performance of his duties hereunder. C. If the City Manager serves on any appointed boards or elected boards of any professional organization, or serves on any committees re 'fated to his professional activities, in the event any monies are paid, or gifts received, by the City Manager related to such service, such money or property shat ube4Ypaid over to or delivered to the City, unless otherwise provided by the City Council. D. In the event the City Manager is temporarily: unable to perfors duties, he shall designate an Acting City Manager. 4. _r t 3 9p 5 f x ,'3. lkii e aT Section 4. Automobile Allowance and Comm unicatio ipment. A. Pursuant to YMC 2.20.097, the I ity Manager slielfte paid the amount of $400.00 each month as a vehicle allowa*Fand the City Manager shall purchase, maintain, and insure his vehicle. The p yi n will be included 7 vith the City Manager's monthly compensation amount as''4 separa e;` tem Tbe vehicle allowance will be treated as a taxable benefit and wifb be/subj ect s j normal withholding taxes. The automobile allowai ce;will, not be included in any calculations as base pay. B. The City Mana'"er will `deceive a City' - :issued Apple I -phone to be used for City business in accordance witl .City policy. y Section 5.J3--:Dues Uhd Subscriptions. ° ' irsuant to YMC°: 2:20.085(6,),- -the City will pay the City Manager's professional dues for membership in the Washington City /County Management Association. Other appropriate dues and sul s riptions on l5el alf of the City Manager will be paid by the City if funds are available in the City's annum; budget. y Section 6. Professional Development. Pursuant to YMC 2.20.085(5), and in accordance with the City's travel policy, the City agrees to pay reasonable and customary travel and subsistence expenses for the City Manager's travel to and attendance at the Washington City /County Management Association's annual conference and the Association of Washington Cities' ( "AWC ") annual conference and/ or regional conferences. The City will pay reasonable and customary travel and subsistence expenses relating to that professional development. The City may choose to pay for the City Manager's attendance at other seminars, conferences, and committee meetings as it deems appropriate and approves by City Council action. Page 3 of 9 Section 7. Community Involvement. The City recognizes the desirability of representation in and before local civic and other organizations, and encourages the City Manager to participate in these organizations to foster a continuing awareness of the City's activities as well as the community's attitudes and ideas. Section 8. Vacation and Sick Leave. 0y The City Manager shall accrue annual leave, which increases depending on length of service, at the same accrual rate as provided in YMC 2.40.020: 1,„, ccrual of annual leave and sick leave shall be as provided. by YMC 2.40.020 and YM7Q, 2 . 40 3�E ' addition, at the time C,��t ` v1 of hire 120 hours of annual leave shall be placed in the.� ity"Managers annual leave account, ' ,,, =-, t , which annual leave may be used at the time(s) he choose in communication with the City Council. The additional 120 hours of annual leave is 'provided to reflect - h`e ; workload and time commitment of the City Manager above anti b$ 4nd the standard vacation ea e benefit. ,, Wit; Section 9. Holidays. n 4414 K am'' , ' The City Manager is entitled ; '.4o to s cifi .� .� holidays with pay pursuant to YMC 2.40.080. ,,e ,u;. :{ Section 10. Health; Dental; Life and Disability Insurance. 5 r The City of '-4, Y ha H Care Plan. Health care coverage, including limited- vision care -and limited d ntai ;insurance is available for City employees and their deper lentslfop Wlii.ch the ; ity cost shares. The employees participation in the Health Care Plan' is required:"40rsuantI' YMC Chapter 2.04, the City Manager will be covered b ,,,A ,, p Y g by the hty:o£ Yakima employee Health; Aare Plan consistent with City management employees. Mana ei iMM ,.em to ees �a" :- medical' expenses according to a rate schedule, and g �� p Y P .Y,_.. p g � premium p rates may bel7adj.ilsted annual.l . The City w%1l -prov other insurance, or the availability for other insurance, for the City Manager as it c16 sfor management employees. Section 11. Residency. The City Council prefers that the City Manager resides within the City of Yakima. Section 12. Retirement. The City shall contribute 12% of the City Manager's base monthly salary each month into an investment plan of the City Manager's choosing. The City further agrees to execute Page 4 of 9 all necessary agreements to accommodate said investment contributions. The City will not make a contribution for the City Manager to the PERS retirement system. Section 13. Termination by the City and Severance Pay. A. Pursuant to Article II, Section 8 of the City Charter, and as provided herein, the City Manager shall serve at the pleasure of the City Council, and the City Council may terminate this Agreement and the City Manager's employment with the City at any time, for any reason or for no reason. B. Should a majority of the entire City Council (four menliers) vote to terminate the services of the City Manager "without cause ", then at'the.:next regular City payroll following such vote, the Council shall cause the Ci /Manageto be paid any accrued and unpaid salary and benefits earned (including) annual ave, sick leave and insurance but excluding such items and allowances as are used:`conducting City business such as, but not limited to, the au)oriiobile allowance and usoba City- issued cell phone) prior to the date of terminatioi $ased on *forty (40) hou� ?`o week. If the City Manager is terminated "without catikeduri.104 first year Qf employment, then within forty -five (45) calendar days foll'o04 the vote to terminate the City Manager's employment, the Council shall cause the ^City Manager to be paid a lump sum severance pay equal to eight >;f 8:? months of his `base salary as full and complete payment and satisfaction of anyc "airne0, the City Mnager of whatsoever nature arising out of this Agreement of otherwi�e ,: if the City Manager is terminated "without cause" after corn letion ofe=thefirst year of employment, within forty -five (45) caenda"cays followingzihe vote ofe'mination the Council shall cause the City Manager to be`azd a lump sum pay equal to six (6) months of his base salary4s4till, and complete payment and satisfaction of any claims of the City Manager of what aeve Rature arising out of this Agreement or otherwise. As consideration for such° paymCttto F City Manager shall, prior to receipt thereof, exe ute and la,er to �tl5 City a general release of the City and its Council members ms s. Y "XC%"'� X ' and its officers; gents, "atxd`,employees for all acts and actions (whether accrued or , subsequently accr ij g) frokflte beginning of time until the date of release, said reuse to be prepared y the City Attorney. , y ,JJ 4Y C. If the City Yakin holds an election and through the election process chooses to adopt the 1V la yor form of government the City Manager shall, within forty -five (45) calendar ,clays following the effective date of the newly elected Mayor taking office, be paid: lump sum severance pay equal to nine (9) months of his base salary as full and complete payment and satisfaction of any claims of the City Manager of whatsoever nature arising out of this Agreement or otherwise. As consideration for such payment, the City Manager shall, prior to receipt thereof, execute and deliver to the City a general release of the City and its Council members and its officers, agents, and employees for all acts and actions (whether accrued or subsequently accruing) from the beginning of time until the date of release, said release to be prepared by the City Attorney. Page 5 of 9 D. In the event the City Manager is terminated for "just cause," the City shall have no obligation to pay the amounts outlined in Section 13, Paragraph B of this Agreement. For purposes of this Agreement, "just cause" is defined and limited for purposes of this Agreement to any of the following: 1. Misfeasance, malfeasance and /or nonfeasance in performance of the City Manager's duties and responsibilities. 2. Conviction or a plea of guilty or no contest to a felony crime, whether or not adjudication is withheld. 3. Neglect of duty, including the inability or unwillingness to properly discharge the responsibilities of office. ' -�' >b 4. Violation of any substantive City poli rule, or regul which would subject any other City employee to < termmation. = 5. The commission of any fraudulent ac agains t thie='i t iterest of the City. 6. The commission of any, act which involves; m oral turpitude, or which causes the City disrepute. 7. Violation of the International City/ - utunty� Management Association Code of Ethics. - � .- ,f.'/ w f 4 ,. �J: 7, � y., �, f�" s ti f 8. Any oth � $.5 r act of5a similar nature ; bf the same or greater seriousness. so E. In the event the`City icil,. at any tin =during the employment term, reduces the salary or, other beiie its of ttl*hAtraplanager, as identified herein, in a greater perceittag tli n an equivalent across- the -board reduction for all full -time City employees, or i 'tie event the„City allegedly refuses to comply with any other material 4, ��rovision of this -reemert= benefitin the City Manager, the City Manager shall p g, s. g tY g Y g notify the Council ' in writing ;'of the alleged violation. The Council shall have forty= fiv ( days from such notice within which to cure the violation; otherwise, the City Managermay at his option, consider such violation as termination "without cause" as of the datof suchlleged reduction or refusal, and the severance pay provision and other terminat provisions contained herein shall become applicable at the annual salary and benefit level in effect prior to the reduction or refusal. Section 14. Termination by the City Manager. The City Manager may terminate this Agreement at any time by delivering to the City Council a written notice of termination not later than ninety (90) days prior to the effective date of the termination. If the City Manager terminates this Agreement, then the provisions of Section 13, Paragraph B above, shall not apply. If the City Manager voluntarily resigns pursuant to this Section, the City shall pay to the City Manager all accrued compensation due Page 6 of 9 to the City Manager up to the City Manager's final day of employment. Payout of accumulated annual and sick leave shall be governed by the same Ordinances and policies as those for City management employees. The City shall have no further financial obligation to Employee pursuant to this Agreement. This Section shall not prevent the City Manager from collecting any money earned as a result of participation in the City's deferred retirement program. Section 15. Disability. If the City Manager becomes permanently disabled or is otlz t ise unable to perform � h Y his duties because of sickness, accident, injury, mental incapacity or health for a period of four consecutive weeks beyond any accrued leave, or for a per od of time the employee is otherwise legally entitled to, the City shall have the optzcin to fe ninate this Agreement, �,. subject to the severance pay provision outlined in Section.13` .ParagrapIi of this Agreement. Section 16. Relocation e ocation Expenses. The City agrees to pay the City Manager up t ( -to reimburse the City Manager for the costs associated with the cost of the relocation a fhtmself and his family. Pursuant to YMC 2.20.085, the relocation expenses are for the costo' the household goods and personal effects of the City Manager Trorn.;phis place of r to the City of Yakima. Reasonable and necessary moving expenses'" h441 . when the City Manager can produce receipts to document the expe diture4,— hen theipvoices are submitted so that the City can pay the moving company directy. � f, An additional ;ssociated> e1ocation expense that shall be paid by the City on behalf of the City Manager .,sl alb for tw Jul. (2) trips fof,the Manager and his wife to come to Yakima between May "2�and ,I,., 2012 to seek permanent housing and to initiate the process of esta}a.lishing a woas plain with t i`e €oincil prior to the actual effective employment r�%- : date. r „ r {_ ,,Should the City: MFanager':risign within two years of his employment with the City to retire > %oraccept a position lsewhere will return to the City a prorated share of any expenses " itItas paid to assi'stivith his' relocation based on the number of months remaining in the twenty -fQui ionth period A percentage of the total relocation expenses paid by the City will be returneaA, City tjiat equals the percentage of months remaining in the first twenty - four months comnericing the beginning of employment. Reimbursemerit to the City of relocation expenses is not required if the Manager should die within the first two (2) years or resign within such time due to disability. Section 17. Indemnification. A. The City Manager shall be entitled to the benefits and subject to the responsibilities in City of Yakima Resolution No. D -5820, entitled "Resolution providing for indemnification against personal liability for City personnel ", and any protections provided by State of Washington law, including RCW 4.96.041. Page 7 of 9 B. Said indemnification referred to in Section 17 shall extend beyond the termination of employment and the expiration of this Agreement to provide protection for any such acts undertaken or committed in the capacity as City Manager, regardless of whether the notice of claim or filing of a lawsuit occurs during or following employment with the City. Section 18. Bonding. The City agrees to bear the full cost of any fidelity or other bonds required of the City Manager under any policy, regulation, ordinance or law. At v im. Section 19. General Terms and Conditions. If any provision, or any portion thereof, contained in<this Agreement5is held by a court of competent jurisdiction to be unconstitutional, illegal, invalid ore forceable, the remainder of this Agreement, or portion h eof, shall not be affected ari f hall remain in full force and effect. B. The waiver by either party of abreach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach by that party C. This Agreement shall be binding upon and inure*the benefit of the heirs at law or personal representative o f >City Manage rg D. This Agreemnl contains the entire Agreement of the parties. It may not be changed verbally, but only. i greement in writing signed by the parties. E. Washington' lava, sl' hal govern thi Agr and any litigation that may arise from :thhis Agreement; hall be fiJ,ed litigated in Yakima, Washington. F. Upoar City Manager's death, the City's obligations under this Agreement shall telminate except for 1. Transfer of of retirement funds, if an to his designated beneficiar," es; 2. Payment of accrued leave balances in accordance with this Agreement; 3. Payment of all outstanding hospitalization, medical and dental bills in accordance with City's insurance policies or plans, if applicable; and 4. Payment of all life insurance benefits in accordance with the City's insurance policies or plans. Page 8 of 9 G. The parties acknowledge that each has shared equally in the drafting and preparation of this Agreement and, accordingly, no court construing this Agreement shall construe it more strictly against one party that the other and every covenant, term and provision of this Agreement shall be construed simply according to its fair meaning. H. This Agreement may be executed in duplicate or counterparts, each of which shall be deemed an original and all of which together shall be deemed one and the same instrument. No term, condition or covenant of this Agreement shall be binding on either party until both parties have signed it. F I. The effective date of this Agreement shall be the last date`it is executed by either of the parties to this Agreement. /'E'= . EXECUTED by the City of Yakima this day:, 2012' CITY6 YAKIMA u 4 , By. , Li 4i, r i ah Cawley, Mayor ATTEST: _ " =ems. B y ','A �'��'v r .r, /" -�- J City Clerk $': >, ' , r'r EXECUTED by A'' O ;�t its da + of May, - ,_,. . Y Y� 2012. ,mss. 5 #;. 0 . '': ", ,t ntiiony H. O'Rourke ;,x ';4' 5rl .'ten City Coi t t No.. 1 A " Resolution NW, � _ . Page 9 of 9 Benefit O'Rourke's proposal YMC Salary $175,000 $147,615 - $179,438 Car Allowance $400 $300 Moving Expenses $12,000 $10,000 plus 2 visits for CM and spouse to look at houses Severance Pay 8 months - 1st year 6 months thereafter Vacation Hours 120 hours plus accruals per YMC Pension Contribution 12% Strong Mayor Ballot Measure 9 months severance if Strong Mayor passes Distributed 4/ Meeting __ City Manager- Compensation package 2012 Budget O'Rourke's Request 5/8/12 Draft Base Salary $ 155,000 00 $ 175,000 00 $175,000 00 Deferred Comp 4,659 12 Subtotal wages 159,659 12 175,000 00 175,000 00 Longevity - FICA/Medicare 9,14124 Max 9,14100 Max 9,14100 Max Retirement 11,287 80 26,250 00 15% 21,000 00 12% Wrk Comp /unemp 991 92 1,000 00 1,000 00 Medical Insurance 6,318 00 Employee Only 12,258.00 Full Family 12,258 00 Full Family Dental Insurance 572.40 572 40 572 40 Life Insurance 408 72 420 00 420 00 Total $ 188,379.20 $ 224,641 40 $219,391 40 Full year increase 36,262.20 31,012.20 half year increase 18,131 10 15,506 10 Car allowance 3,600 00 4,800 00 4,800 00 Meeti 5 a' Meeting