HomeMy WebLinkAbout11/06/2015 00 Misc Distributed at the Meeting Distributed at the
Meeting
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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. By this Agreement 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 "). The Parties mutually agree that Employee will cease to act in the role of
City Manager effective December 1, 2015, shall return all City access cards and keys and
shall remain available for consultation with the Interim City Manager and /or the City Council
beginning on December 1, 2015 and continue in a consulting role until December 31, 2015.
During the consultation period Employee shall be available upon request of the City Council
or the Interim City Manager to provide information and advice in order to effect a smooth
transition of City management during that period.
2. Separation Benefits. There will be four (4) 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 December 1, 2015 Employee shall not receive
any additional automobile allowance. Effective December 31, 2015 Employee shall not
receive 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
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employment, Employer will make a lump sum severance payment to Employee of four (4)
months of Employee's base salary. This lump sum severance payment shall be subject to
normal payroll withholding taxes. Employee shall also be permitted to continue to receive
all medical and life insurance benefits provided by the City for a period not to exceed four
(4) months following the final day of employment set forth in Section 1 above, for which
Employee will be invoiced monthly by the City from the final day of employment in the amount
of the normal monthly payments for those benefits as he would have paid as an employee
of the City. All medical and life insurance benefits provided by the City under this
continuance of medical and life insurance coverage shall cease upon the expiration of the
fourth (4th) month following the final day of employment or upon request by Employee for
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.
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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
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 disparage 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 6, 2015 and that the twenty -one (21)
day period expires November 27, 2015. Employee also understands that by
returning the signed Agreement prior to November 27, 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
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terminated. Paragraph headings utilized in this Agreement are for reference convenience
only and have no independent meaning.
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
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