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HomeMy WebLinkAbout08/20/2013 12 City Manager Employment Contract Amendment; Semi-Annual Performance Reviews and Leave Day Accrual-'4 9 ;]4 7WOF,4 -� `x..t. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No j2_ For Meeting of: 8/20/2013 ITEM TITLE: Resolution amending the City Manager's employment agreement to provide for semi annual performance reviews and to provide the accrual of two annual leave days per month. SUBMITTED BY: Jeff Cutter, City Attorney SUMMARY EXPLANATION: The City Council and City Manager agreed that it would be preferred to specifically identify the number of annual leave days the City Manager accrues each month in order to separate the City Manager's employment terms from those of the remainder of the City's staff to avoid perceptions of potential conflict. City Council and the City Manager agreed that the City Manager's employment agreement be amended in order to reflect the City Manager's accrual of two annual leave days per month of employment and eliminate the reference to vacation accrual being determined in accord with the City's general personnel ordinances. The City Council and City Manager also agreed that performance reviews should be conducted semi - annually, therefore, item 2C of the original employment agreement needs to be amended as well. Resolution: X Other (Specify): Contract: Start Date: Item Budgeted: NA Funding Source /Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: Ordinance: Contract Term: End Date: Amount: Public Trust and Accountability APPROVED FOR SUBMITTAL: RECOMMENDATION: ATTACHMENTS: Name: City Manager Description: Resolution concerning City Manager's contract City Manager contract with redline City Manager contract FINAL City Manager 2013-2014 work plan PROPOSED FY 2013 -2014 CITY MANAGER WORK PLAN • Citizen Survey rating improvements • Downtown Master Plan adoption • Create downtown plaza • Expanded Yakima Airport air service • Mill site acquisition • North 1St Street — phase 1 capital improvement implementation • Pilot recycling program implemented • Operate within expenditures budget 100% of the time • Expand downtown events /activities • Employee survey rating improvements • Successful Fire Union labor negotiations • GFI operational results • Employee Quality /Customer Academy RESOLUTION NO. R -2013- A RESOLUTION concerning the City Manager's contract; amending the City Manager's contract to provide for semi - annual performance reviews and to provide the accrual of two annual leave days per month. WHEREAS, Tony O'Rourke has been employed with the City for one year and recently received his first annual performance review in accord with the provisions of his employment agreement; and WHEREAS, as a result of discussion during the performance review process the City Council and the City Manger agreed that semi - annual performance reviews would be beneficial to the mutual interests of the City and the City Manager; and WHEREAS, the City Council and the City Manger also agreed that it would be preferred to specifically identify the number of annual leave days the City Manager accrues each month in order to separate the City Manager's employment terms from those of the remainder of the City's staff to avoid perceptions of potential conflict; and WHEREAS, to resolve this issue the City Council and the City Manager have agreed to amend the City Manager's employment Agreement to reflect the City Manager's accrual of two annual leave days per month of employment and eliminate the reference to vacation accrual being determined in accord with the City's general personnel ordinances; and WHEREAS, the City Council has determined that the amendments indicated in the City Manager's Employment Contract, attached hereto and incorporated herein by this reference, are in the best interests of the City, the City Council and the City Manager, and insofar as the City Manager consents to the amendments indicated therein; Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Mayor is hereby authorized to execute the attached and incorporated amendment to the City Manager's Employment Contract to reflect the parties' intent to (1) hold semi - annual performance reviews from this date forward, and (2) to specifically provide the accrual of two annual days per month for the City Manager, thus eliminating the reference to accruals in accord with the personnel ordinance. ADOPTED BY THE CITY COUNCIL this _day of 12013. ATTEST: City Clerk Micah Cawley, Mayor I- - --- - __ - I aA the Meeting f3 EMPLOYMENT AGREEMENT FOR CITY MANAGER AS AMENDED ON AUGUST 20, 2013 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 "). WHEREAS, the City desires to employ Anthony H. O'Rourke as City Manager of the City of Yakima, as provided for in Article Il of the City Charter of the City of Yakima (hereafter referred to as "City Charter "); and WHEREAS, the City, through its City Council, desires to provide for certain benefits and compensation for the City Manager and to establish conditions of employment applicable to the City Manager; and WHEREAS, Anthony H. O'Rourke desires to accept employment as City Manager of the City of Yakima under the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the mutual promises as set forth in this Agreement, the parties agree as follows: Section 1. Employment. A. The City of Yakima hereby employs and appoints Anthony H. O'Rourke as its City Manager, effective on the date provided in Section 113 and under the terms of this Agreement, to perform the duties and functions specified in the City Charter, the Yakima Municipal Code, and Washington law, and to perform such other legally permissible and proper duties and functions as the City Council shall from time to time assign. B. The City's employment 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 Manager 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. 1 of 9 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 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 semi - annual performance evaluations. The semi - annual evaluations shall be in such form as the Council deems appropriate and shall be performed in January and July of each year in which this Agreement is effective. The City Manager's first annual evaluation shall be based on a work plan that includes, but shall not be limited to specific strategic accomplishments and objectives that shall become the basis for future semi - annual evaluations and shall be cooperatively determined and adjusted from time to time as agreed between the City Manager and the Council. The essential elements of the first year work plan shall include: • Conduct an ICMA Citizen's Survey and Benchmark Report • Employee Survey • Strategic Plan FY 2013 -2016 • Annual Business Plan FY 2013 • Five Year Financial Plan FY 2013 -2018 • Establishment of Communications/Marketing Team from exiting employees • Organizational Quality Initiative Plan • Organizational Management and Process Review The review process shall be the City Council's resource to identify areas of performance that may require modification or improvement, as well as to propose new objectives. Following the semi - annual evaluation process the Mayor shall provide the City Manager with a written summary statement of the Council's findings and comments and thereafter shall arrange an opportunity for the City Manager to discuss the evaluation with the Council. D. Nothing in this Section shall require the City to increase the base salary or other benefits of the City Manager. Furthermore, the City's failure to conduct any of the scheduled evaluations 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 Page 2 of 9 Manager agrees to perform all duties and responsibilities faithfully, industriously, and to the best of his ability and in a professional and competent manner. 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 related 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 shall be paid 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 perform his duties, he shall designate an Acting City Manager. Section 4. Automobile Allowance and Communication Equipment. A. Pursuant to YMC 2.20.097, the City Manager shall be paid the amount of $400.00 each month as a vehicle allowance, and the City Manager shall purchase, maintain, and insure his vehicle. The payment will be included with the City Manager's monthly compensation amount as a separate item. The vehicle allowance will be treated as a taxable benefit and will be subject to normal withholding taxes. The automobile allowance will not be included in any calculations as base pay. B. The City Manager will receive a City- issued Apple I -phone to be used for City business in accordance with City policy. Section 5. Dues and Subscriptions. Pursuant 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 subscriptions on behalf of the City Manager will be paid by the City if funds are available in the City's annual budget. 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 Page 3 of 9 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. 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. The City Manager shall accrue two (2) days of annual leave per month, retroactive to the first day of employment. Maximum accruals of annual leave and sick leave shall be as provided by YMC 2.40.020 and YMC 2.40.030. In addition, at the time of hire 120 hours of annual leave shall be placed in the City Manager's annual leave account, which annual leave may be used at the time(s) he chooses in communication with the City Council. The additional 120 hours of annual leave is provided to reflect the workload and time commitment of the City Manager above and beyond the standard vacation leave benefit. Section 9. Holidays. The City Manager is entitled to specified holidays with pay pursuant to YMC 2.40.080. Section 10. Health, Dental, Life and Disability Insurance. The City of Yakima has an employee Health Care Plan. Health care coverage, including limited vision care and limited dental insurance, is available for City employees and their dependents for which the City cost shares. The employee's participation in the Health Care Plan is required. Pursuant to YMC Chapter 2.04, the City Manager will be covered by the City of Yakima employee Health Care Plan consistent with City management employees. Management employees pay medical expenses according to a rate schedule, and premium rates may be adjusted annually. The City will provide other insurance, or the availability for other insurance, for the City Manager as it does for management employees. Section 11. Residency. The City Council prefers that the City Manager resides within the City of Yakima. Section 12. Retirement. Page 4 of 9 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 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 11, 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 members) 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 City Manager to be paid any accrued and unpaid salary and benefits earned (including annual leave, sick leave and insurance but excluding such items and allowances as are used in conducting City business such as, but not limited to, the automobile allowance and use of a City- issued cell phone) prior to the date of termination based on a forty (40) hour work week. If the City Manager is terminated "without cause" during the first year of employment, then within forty -five (45) calendar days following 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 (8) 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. Likewise, if the City Manager is terminated "without cause" after completion of the first year of employment, within forty -five (45) calendar days following the vote of termination the Council shall cause the City Manager to be paid a lump sum severance pay equal to six (6) 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. C. If the City of Yakima holds an election and through the election process the citizens choose to adopt the Strong Mayor form of government, and if the City Manager does not remain with the City in the role of City Administrator after the elected Strong Mayor takes office, then within forty -five (45) calendar days following the effective date of the newly elected Mayor taking office the City Manager shall be paid a lump sum severance pay equal to six (6) 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. If the City Manager does accept an offer to become the City Administrator under the elected Mayor, then no severance Page 5 of 9 compensation under this section shall be paid. If severance is paid, 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. 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. 4. Violation of any substantive City policy, rule, or regulation, which would subject any other City employee to termination. 5. The commission of any fraudulent act against the interest of the City. 6. The commission of any act which involves moral turpitude, or which causes the City disrepute. 7. Violation of the International City /County Management Association Code of Ethics. 8. Any other act of a similar nature of the same or greater seriousness. E. In the event the City Council, at any time during the employment term, reduces the salary or other benefits of the City Manager, as identified herein, in a greater percentage than an equivalent across - the -board reduction for all full -time City employees, or in the event the City allegedly refuses to comply with any other material provision of this Agreement benefiting the City Manager, the City Manager shall notify the Council in writing of the alleged violation. The Council shall have forty - five (45) days from such notice within which to cure the violation; otherwise, the City Manager may at his option, consider such violation as termination "without cause" as of the date of such alleged reduction or refusal, and the severance pay provision and other termination provisions contained herein shall become applicable at the annual salary and benefit level in effect prior to the reduction or refusal. Page 6 of 9 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 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 otherwise unable to perform 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 period of time the employee is otherwise legally entitled to, the City shall have the option to terminate this Agreement, subject to the severance pay provision outlined in Section 13, Paragraph B of this Agreement. Section 16. Relocation Expenses. The City agrees to pay the City Manager up to $12,000 to reimburse the City Manager for the costs associated with the cost of the relocation of himself and his family. Pursuant to YMC 2.20.085, the relocation expenses are for the cost of moving the household goods and personal effects of the City Manager from his place of residence to the City of Yakima. Reasonable and necessary moving expenses shall be reimbursed only when the City Manager can produce receipts to document the expenditure, or when the invoices are submitted so that the City can pay the moving company directly. An additional associated relocation expense that shall be paid by the City on behalf of the City Manager shall be for two (2) trips for the City Manager and his wife to come to Yakima between May 2 and July 1, 2012 to seek permanent housing and to initiate the process of establishing a work plan with the Council prior to the actual effective employment date. Should the City Manager resign within two years of his employment with the City to retire or accept a position elsewhere, he will return to the City a prorated share of any expenses it has paid to assist with his relocation based on the number of months remaining in the twenty -four month period. A percentage of the total relocation expenses paid by the City will be returned to the City that equals the percentage of months remaining in the first twenty - four months commencing from the beginning of employment. Reimbursement 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. Page 7 of 9 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. 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. Section 19. General Terms and Conditions. A. If any provision, or any portion thereof, contained in this Agreement is held by a court of competent jurisdiction to be unconstitutional, illegal, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall not be affected and shall remain in full force and effect. B. The waiver by either party of a breach 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 to the benefit of the heirs at law or personal representative of City Manager. D. This Agreement contains the entire Agreement of the parties. It may not be changed verbally, but only by an Agreement in writing signed by the parties. E. Washington law shall govern this Agreement and any litigation that may arise from this Agreement, shall be filed and litigated in Yakima, Washington. F. Upon the City Manager's death, the City's obligations under this Agreement shall terminate except for: 1. Transfer of ownership of retirement funds, if any, to his designated beneficiaries; 2. Payment of accrued leave balances in accordance with this Agreement; Page 8 of 9 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. 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. I. The effective date of this Agreement shall be the last date it is executed by either of the parties to this Agreement. EXECUTED by the City of Yakima this 20th day of August, 2013. CITY OF YAKIMA By: Micah Cawley, Mayor ATTEST: City Clerk EXECUTED by Anthony H. O'Rourke this 20th day of August, 2013. City Contract No.: Resolution No.: Anthony H. O'Rourke Page 9 of 9 EMPLOYMENT AGREEMENT FOR CITY MANAGER AS AMENDED ON AUGUST 20, 2013 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 "). WHEREAS, the City desires to employ Anthony H. O'Rourke as City Manager of the City of Yakima, as provided for in Article 11 of the City Charter of the City of Yakima (hereafter referred to as "City Charter "); and WHEREAS, the City, through its City Council, desires to provide for certain benefits and compensation for the City Manager and to establish conditions of employment applicable to the City Manager; and WHEREAS, Anthony H. O'Rourke desires to accept employment as City Manager of the City of Yakima under the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the mutual promises as set forth in this Agreement, the parties agree as follows: Section 1. Employment. A. The City of Yakima hereby employs and appoints Anthony H. O'Rourke as its City Manager, effective on the date provided in Section 1B and under the terms of this Agreement, to perform the duties and functions specified in the City Charter, the Yakima Municipal Code, and Washington law, and to perform such other legally permissible and proper duties and functions as the City Council shall from time to time assign. B. The City's employment 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 Manager 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. 1 of 9 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 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 a* semi - annual performance evaluations. The semi - annual evaluations shall be in such form as the Council deems appropriate and shall be performede in January and July 4 of each year in which this Agreement is effective. The City Manager's first annual evaluation shall be based on a work plan that includes, but shall not be limited to specific strategic accomplishments and objectives that shall become the basis for future semi - annual evaluations and shall be cooperatively determined and adjusted from time to time as agreed between the City Manager and the Council. The essential elements of the first year work plan shall include: • Conduct an ICMA Citizen's Survey and Benchmark Report • Employee Survey • Strategic Plan FY 2013 -2016 • Annual Business Plan FY 2013 • Five Year Financial Plan FY 2013 -2018 • Establishment of Communications/Marketing Team from exiting employees • Organizational Quality Initiative Plan • Organizational Management and Process Review The review process shall be the City Council's resource to identify areas of performance that may require modification or improvement, as well as to propose new objectives. Following the semi - annual evaluation process the Mayor shall provide the City Manager with a written summary statement of the Council's findings and comments and thereafter shall arrange an opportunity for the City Manager to discuss the evaluation with the Council. D. Nothing in this Section shall require the City to increase the base salary or other benefits of the City Manager. Furthermore, the City's failure to conduct any of the scheduled evaluations 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 Page 2 of 9 Manager agrees to perform all duties and responsibilities faithfully, industriously, and to the best of his ability and in a professional and competent manner. 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 related 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 shall be paid 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 perform his duties, he shall designate an Acting City Manager. Section 4. Automobile Allowance and Communication Equipment. A. Pursuant to YMC 2.20.097, the City Manager shall be paid the amount of $400.00 each month as a vehicle allowance, and the City Manager shall purchase, maintain, and insure his vehicle. The payment will be included with the City Manager's monthly compensation amount as a separate item. The vehicle allowance will be treated as a taxable benefit and will be subject to normal withholding taxes. The automobile allowance will not be included in any calculations as base pay. B. The City Manager will receive a City- issued Apple I -phone to be used for City business in accordance with City policy. Section 5. Dues and Subscriptions. Pursuant 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 subscriptions on behalf of the City Manager will be paid by the City if funds are available in the City's annual budget. 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 Page 3 of 9 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. 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. The City Manager shall accrue two 2) days of annual leave per month, retroactive to the first day of employmentwhieh iner-eases epen length of seFviee, at the safne fteeFdal Wed in AAW . Maximum -Aaccruals of annual leave and sick leave shall be as provided by YMC 2.40.020 and YMC 2.40.030. In addition, at the time of hire 120 hours of annual leave shall be placed in the City Manager's annual leave account, which annual leave may be used at the time(s) he chooses in communication with the City Council. The additional 120 hours of annual leave is provided to reflect the workload and time commitment of the City Manager above and beyond the standard vacation leave benefit. Section 9. Holidays. The City Manager is entitled to specified holidays with pay pursuant to YMC 2.40.080. Section 10. Health, Dental, Life and Disability Insurance. The City of Yakima has an employee Health Care Plan. Health care coverage, including limited vision care and limited dental insurance, is available for City employees and their dependents for which the City cost shares. The employee's participation in the Health Care Plan is required. Pursuant to YMC Chapter 2.04, the City Manager will be covered by the City of Yakima employee Health Care Plan consistent with City management employees. Management employees pay medical expenses according to a rate schedule, and premium rates may be adjusted annually. The City will provide other insurance, or the availability for other insurance, for the City Manager as it does for management employees. Section 11. Residency. The City Council prefers that the City Manager resides within the City of Yakima. Page 4 of 9 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 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 11, 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 members) 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 City Manager to be paid any accrued and unpaid salary and benefits earned (including annual leave, sick leave and insurance but excluding such items and allowances as are used in conducting City business such as, but not limited to, the automobile allowance and use of a City- issued cell phone) prior to the date of termination based on a forty (40) hour work week. If the City Manager is terminated "without cause" during the first year of employment, then within forty -five (45) calendar days following 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 (8) 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. Likewise, if the City Manager is terminated "without cause" after completion of the first year of employment, within forty -five (45) calendar days following the vote of termination the Council shall cause the City Manager to be paid a lump sum severance pay equal to six (6) 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. C. If the City of Yakima holds an election and through the election process the citizens choose to adopt the Strong Mayor form of government, and if the City Manager does not remain with the City in the role of City Administrator after the elected Strong Mayor takes office, then within forty -five (45) calendar days following the effective date of the newly elected Mayor taking office the City Manager shall be paid a lump sum severance pay equal to six (6) 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. If the City Manager does accept an offer Page 5 of 9 to become the City Administrator under the elected Mayor, then no severance compensation under this section shall be paid. If severance is paid, 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. 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. 4. Violation of any substantive City policy, rule, or regulation, which would subject any other City employee to termination. 5. The commission of any fraudulent act against the interest of the City. 6. The commission of any act which involves moral turpitude, or which causes the City disrepute. 7. Violation of the International City /County Management Association Code of Ethics. 8. Any other act of a similar nature of the same or greater seriousness. E. In the event the City Council, at any time during the employment term, reduces the salary or other benefits of the City Manager, as identified herein, in a greater percentage than an equivalent across - the -board reduction for all full -time City employees, or in the event the City allegedly refuses to comply with any other material provision of this Agreement benefiting the City Manager, the City Manager shall notify the Council in writing of the alleged violation. The Council shall have forty - five (45) days from such notice within which to cure the violation; otherwise, the City Manager may at his option, consider such violation as termination "without cause" as of the date of such alleged reduction or refusal, and the severance pay provision and other termination provisions contained herein shall become applicable at the annual salary and benefit level in effect prior to the reduction or refusal. Page 6 of 9 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 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 otherwise unable to perform 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 period of time the employee is otherwise legally entitled to, the City shall have the option to terminate this Agreement, subject to the severance pay provision outlined in Section 13, Paragraph B of this Agreement. Section 16. Relocation Expenses. The City agrees to pay the City Manager up to $12,000 to reimburse the City Manager for the costs associated with the cost of the relocation of himself and his family. Pursuant to YMC 2.20.085, the relocation expenses are for the cost of moving the household goods and personal effects of the City Manager from his place of residence to the City of Yakima. Reasonable and necessary moving expenses shall be reimbursed only when the City Manager can produce receipts to document the expenditure, or when the invoices are submitted so that the City can pay the moving company directly. An additional associated relocation expense that shall be paid by the City on behalf of the City Manager shall be for two (2) trips for the City Manager and his wife to come to Yakima between May 2 and July 1, 2012 to seek permanent housing and to initiate the process of establishing a work plan with the Council prior to the actual effective employment date. Should the City Manager resign within two years of his employment with the City to retire or accept a position elsewhere, he will return to the City a prorated share of any expenses it has paid to assist with his relocation based on the number of months remaining in the twenty -four month period. A percentage of the total relocation expenses paid by the City will be returned to the City that equals the percentage of months remaining in the first twenty - four months commencing from the beginning of employment. Page 7 of 9 Reimbursement 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. 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. Section 19. General Terms and Conditions. A. If any provision, or any portion thereof, contained in this Agreement is held by a court of competent jurisdiction to be unconstitutional, illegal, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall not be affected and shall remain in full force and effect. B. The waiver by either party of a breach 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 to the benefit of the heirs at law or personal representative of City Manager. D. This Agreement contains the entire Agreement of the parties. It may not be changed verbally, but only by an Agreement in writing signed by the parties. E. Washington law shall govern this Agreement and any litigation that may arise from this Agreement, shall be filed and litigated in Yakima, Washington. F. Upon the City Manager's death, the City's obligations under this Agreement shall terminate except for: 1. Transfer of ownership of retirement funds, if any, to his designated beneficiaries; Page 8 of 9 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. 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. I. The effective date of this Agreement shall be the last date it is executed by either of the parties to this Agreement. EXECUTED by the City of Yakima this 20th day of August, 2013. CITY OF YAKIMA ATTEST: City Clerk Micah Cawley, Mayor EXECUTED by Anthony H. O'Rourke this 20th day of August, 2013. City Contract No.: Resolution No.: Anthony H. O'Rourke Page 9 of 9