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HomeMy WebLinkAbout11-136 - Cline David - Professional Services11-136(a) Council Approval N/A FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF TUKWILA, WASHINGTON AND DAVID CLINE AND RELEASES OF ALL CLAIMS THIS FIRST AMENDMENT TO AGREEMENT AND RELEASE OF ALL CLAIMS ("First Amendment") is made and entered into effective as of the Effective Date set forth below, by and between the City of Tukwila, a Washington non -charter, optional code city organized under the Mayor -Council plan of government pursuant to chapter 35A.12 RCW (the "City") and David Cline ("Mr. Cline"). RECITALS: WHEREAS, Mr. Cline serves as the Tukwila City Administrator pursuant to a Professional Services Agreement (Contract No. 11-136), dated October 13, 2011, attached hereto and incorporated herein by reference as Exhibit A ("Original Agreement"); and WHEREAS, on January 30, 2024, Mr. Cline and the Mayor met to discuss Mr. Cline's employment with the City, and the Mayor decided that, while Mr. Cline was a capable City Administrator, the Mayor intended to seek new leadership to fulfill his vision for the City's future; and WHEREAS, to retain his services in a consulting capacity, as needed, and to assist him in transitioning to his next position, the City hereby agrees to amend the Original Agreement as set forth herein if Mr. Cline signs and does not revoke this First Amendment as set forth herein; and WHEREAS, the City and Mr. Cline understand that in order to effectively release any and all claims Mr. Cline may have as described herein, it is necessary for Mr. Cline to execute two releases, one in consideration for the agreement to continue employing Mr. Cline as a Consultant that applies to any and all claims he has that arose prior to the date he first signs this First Amendment, and the second to be signed after Mr. Cline's termination of employment in consideration for the Termination Pay described in Section 6.B of the Original Agreement and as amended by this First Amendment, which will be accomplished by having Mr. Cline sign this Agreement twice, as set forth in detail below. NOW THEREFORE, the City and Mr. Cline mutually agree as follows: 1. This First Amendment hereby amends the Original Agreement as expressly set forth herein, and the remaining terms of the Original Agreement shall remain in full force and effect. 2. Mr. Cline's duties as City Administrator shall end and Mr. Cline shall delegate and turn over all responsibility for City Administrator duties to the Deputy City Administrator effective at 5:00 pm on Friday, February 2, 2024, and shall transition at that date and time from an active employee to a "Consultant," which means that he will be available on an "as needed" basis as determined by the Mayor for consultation services to ensure a successful transition for the Mayor's Office and City Administration. Mr. Cline's Consultant status shall continue until the end of the day on Sunday, June 30, 2024, at which time Mr. Cline's employment with the City shall end. Further, Mr. Cline shall return all City -issued keys, badges, laptops, cell phones, and all other City property, and any passwords or logins used to ,perform his duties as City Administrator, as of 5:00 pm on Friday, February 2, 2024. 3. If Mr. Cline signs and does not revoke this First Amendment, Mr. Cline shall receive the following separation benefits, which replace the separation benefits in the Original Agreement: 4854-6516-2146, v. 1 {KZS4860-4039-4913;2/13175.000001/} {KZS4854-6516-2146;1/13175.000001/} a. The City shall retain Mr. Cline on payroll as a Consultant through Sunday, June 30, 2024, provided that Mr. Cline shall first be in vacation status and exhaust his entire accrued vacation leave balance of 297 hours, plus the additional 24 hours of vacation leave earned during the time he is in vacation status; provided further, that following exhaustion of his accrued vacation leave balance and continuing until the end of the day on June 30, 2024, Mr. Cline shall be on paid administrative leave, provided that he remains available on an "as needed" basis as determined by the Mayor for consultation services to ensure a successful transition for the Mayor's Office and City Administration. Mr. Cline shall not be eligible to accrue any additional sick leave or vacation leave during his paid administrative leave. As a Consultant, Mr. Cline remains a City employee in paid status and shall be entitled to remain on the City's medical, dental, and vision plans; however, he shall not be entitled to any compensation or benefits except as specifically provided for in this First Amendment or as required by law (e.g., Workers Compensation, Washington Paid Family Leave, and the accrual of retirement benefits). Mr. Cline and the City acknowledge any assistance provided to the City by Mr. Cline as a Consultant shall be subject to any limitations placed on Mr. Cline by a future employer. b. On the first regular pay day that occurs in July of 2024, the City shall pay Mr. Cline Termination Pay equal to three (3) months of his base salary, plus a sum equal to three (3) months of medical, dental, and vision premiums for him and his dependents, plus the cash equivalent of his accrued Sick Leave balance, minus any applicable taxes or other applicable withholdings (collectively, "Termination Pay and Benefits"). c. Upon request, Mayor McLeod shall provide Mr. Cline with a letter of reference that comments positively on Mr. Cline's work ethic, integrity, qualifications, competence, and other aspects of his employment with the City. 4. Release. In exchange for the consideration set forth in Paragraph 3 Subsections (a) through (c), Mr. Cline forever releases and discharges the City, its past and present board members, elected City officials, City officers, City employees, attorneys, agents, affiliates, assigns, insurers, and successors, any other person acting on the City's behalf ("Releasees") from any and all claims, whether known or unknown, suspected or unsuspected, arising out of Mr. Cline's employment with the City or separation therefrom, that arise on or before the dates that Mr. Cline signs this First Amendment, as further explained in Paragraph 8 below. This release shall include any claims arising under any federal, state, or local law prohibiting discrimination, harassment, or retaliation in employment, including age discrimination in violation of the Age Discrimination in Employment Act, as well as any claims for breach of contract, defamation, constitutional violations, FMLA interference, unpaid wages, salary, or other sums, emotional distress, personal injury, attorneys' fees, violation of the public records act, or any other statutory or common law claims. 5. Indemnification and Hold Harmless. It is further understood that Mr. Cline agrees to indemnify and hold harmless the Releasees from any and all claims that may be brought by or on behalf of Mr. Cline, his descendants, ancestors, dependents, heirs, executors, administrators, assigns and successors, or each or any of them, that arise from his employment at the City or separation therefrom arising on or before the dates that Mr. Cline signs this First Amendment, as further explained in Paragraph 8 below. 4854-6516-2146, v. 1 {KZ54860-4039-4913; 2/ 13175.000001/} {KZ54854-6516-2146;1/13175.000001/} 6. The City agrees to provide Mr. Cline, consistent with the conditions and requirements of chapter 2.105 of the Tukwila Municipal Code, such legal representation as may be reasonably necessary to defend a claim or lawsuit filed against Mr. Cline personally and resulting from any conduct, act, or omission of his performed or omitted on behalf of the City in his capacity as a City employee, which act or omission is within the scope of his service or employment with the City. 7. Mr. Cline is not prohibited from filing a charge with or participating in an investigation, hearing, or proceeding brought by the Equal Employment Opportunity Commission or Washington Human Rights Commission regarding any claim of discrimination, harassment, or retaliation associated with his employment with the City. However, Mr. Cline agrees not to seek or accept any damages from the Releasees recovered from any investigation, hearing, or proceeding prosecuted by the Equal Employment Opportunity Commission or Washington Human Rights Commission. 8. Mr. Cline acknowledges that: a. Pursuant to applicable law, including the Older Workers Benefit Protection Act of 1990, you have been offered the opportunity to review a copy of this Release for a period of twenty-one (21) days (the "First Review Period"). In order to be effective, this Release must be signed by both you and the City. To receive the benefits in Paragraph 3, Subsections a and c of this First Amendment, you must sign where it says, "First Signature" below no sooner than February 2, 2024, and no later than the last day of the First Review Period, which ends on February 21, 2024. If you sign where it says, "First Signature" below during the First Review Period and you do not revoke your signature during the First Revocation Period, the Release in Paragraph 4 and the Indemnification and Hold Harmless in Paragraph 5 of this First Amendment shall apply to any and all claims that arose on or before the date of your First Signature. b. To receive the benefits in Paragraph 3, Subsection b of this First Amendment, you must sign where it says "Second Signature" below no sooner than the day after your last day of employment (July 1, 2024) and no later than 21 days after your last day of employment (the "Second Review Period"). If you sign where it says "Second Signature" below during the Second Review Period and you do not revoke your signature during the Second Revocation Period, the Release in Paragraph 4 and the Indemnification and Hold Harmless in Paragraph 5 of this First Amendment will apply to any and all claims that arose on or before the date of your Second Signature. This includes, without limitation, any claims that arose after the date of your First Signature. c. Also, you must return any City property and provide any passwords or access codes used for City business to the City prior to the end of the First Revocation Period. d. The City advised you that you have the right to consult with an attorney of your choice prior to signing this First Amendment. e. The terms and conditions of this First Amendment have not been materially amended, modified, or revoked during the First Review Period or during the Second Review Period. The City agrees that you shall have seven (7) calendar days (the "First Revocation Period") following the date of your First Signature as set forth in Paragraph 8, Subsection a above to revoke your acceptance of this First Amendment, and this First Amendment shall not become effective (the "Effective Date") until the First Revocation Period has expired. The City agrees that you shall have seven (7) calendar days (the "Second Revocation Period") following the 3 4854-6516-2146, v. 1 1KZS4860-4039-4913; 2/13175.000001/} 1KZS4854-6516-2146;1/13175.000001/} date of your Second Signature as set forth in Paragraph 8, Subsection b above to revoke your acceptance of this First Amendment as it applies to any claims that arose after the date of your First Signature, and this First Amendment shall not become effective with respect to any claims arising after the date of your First Signature until the Second Revocation Period has expired. If you revoke your Second Signature, revocation of your Second Signature will not affect the Release set forth in Paragraph 4 above or the Indemnification and Hold Harmless set forth in Paragraph 5 above that became effective on the Effective Date. If you revoke your Second Signature during the Second Revocation Period, you will not have to repay the City for the benefits and other consideration you received for the time period from February 3, 2024 through the end of your employment, and the Release, Indemnification and Hold Harmless set forth in Paragraphs 4 and 5 of this First Amendment shall continue to apply to any and all claims that arose on or before the date of your First Signature. 9. This First Amendment shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit or other proceeding is instituted to enforce any term of this First Amendment, the parties specifically understand and mutually agree that venue shall be exclusively in King County, Washington. The prevailing party in any such action shall be entitled to its reasonable attorneys' fees and costs of suit, which shall be fixed by the judge hearing the case, and such fees shall be included in the judgment. I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF THIS FIRST AMENDMENT. I UNDERSTAND THAT BY SIGNING THIS, I AM WAIVING CERTAIN RIGHTS. I FREELY AND EXPRESSLY ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS FIRST AMENDMENT, INCLUDING WITHOUT LIMITATION THE RELEASE, INDEMNIFICATION AND HOLD HARMLESS. CITY OF TUKWTLA: 42 Thomas McLeod, M. nor Date: ft'_l,1,(4(:1,1 2� 202 EMPLOYEE: First Signature: r(it David Cline Date of Mr. Cline's First Signature: 17? t'1✓ i Vi L., Z_Z)Z(( (no sooner than February 2, 2024, and no later than the last day oftie First Review Period, which ends on February 21, 2024) �l Second Signature: /' David Cline Date of Mr. Cline's Second Signature: T dJ ?r���;/ % 72'21 2024, and no later than 21 days after the last ddy of erfiployment) 4 4854-6516-2146, v. 1 {KZ54860-4039-4913;2/13175.000001/} (no sooner than July 1, 11-136 Council Approval 10/03/11 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF TUKWILA, WASHINGTON and David Cline THIS AGREEMENT is made this date between the City of Tukwila, Washington, hereinafter referred to as "City" and David Cline hereinafter referred to as "City Administrator." WHEREAS, the City of Tukwila is a noncharter, optional municipal code city organized under the Mayor/Council form of government, and WHEREAS, the City desires to contract with David Cline to serve as City Administrator, and said David Cline desires to accept the position as the City Administrator for the City of Tukwila. NOW, THEREFORE, in consideration of the mutual benefits to be derived, the parties hereby agree as follows: 1. Term. This agreement shall remain in full force and effect from date of execution and shall continue for a period of not less than three (3) years or until terminated as provided by law, or by the provisions of this Agreement. This Agreement shall automatically renew annually as of the third anniversary, unless otherwise terminated as provided by law or the provisions of this Agreement. Provided, however, that this Agreement will not automatically renew if the City gives the City Administrator notice in writing six (6) months before the expiration of the initial three-year term of this Agreement or the expiration of any automatic annual renewal thereafter, and in which case the provisions of Section 6.B. of this Agreement shall not apply. 2. Duties. City Administrator shall perform all duties and obligations of the City Administrator as required by law, and such other duties as are assigned from time to time by the Mayor. The City Administrator recognizes that the Mayor is the Executive body of the City and agrees to respond promptly to the Mayor regarding any concerns that he/she may have relating to City business. The City, through the Mayor, recognizes that the City Administrator is the individual responsible for administration and enforcement of the City's ordinances and resolutions, and of the policies and directives of the Mayor, and Mayor shall communicate his/her concerns regarding administration to the City Administrator in accordance with Chapter 35A.12 RCW. City Administrator shall attend all special and regular meetings of the Council, unless excused, and such other meetings as required by the Mayor. f c � Qill vec.b -1- 3. Salary. City Administrator shall be paid $136,536.00 annual base salary, and then increased with annual step increases. City Administrator shall be paid in accordance with the procedures for other employees of the City, and shall receive Cost of Living Adjustments (COLA) as otherwise provided to non - represented employees. 4. Benefits. All benefits applicable to City Department Heads and Directors shall also be applicable to City Administrator, with the exception that upon hire the City Administrator will receive twenty four (24) days of annual vacation leave which represents the maximum accrual for all non -represented employee. This accrual will be enforce throughout the duration of this agreement, or as otherwise provided to City Department Heads and Directors. In addition, the following benefits are specifically approved for the City Administrator: A. General Expenses. The City recognizes that certain expenses of a non - personal and generally job -affiliate nature are incurred by City Administrator, and agrees to reimburse or to pay said general expenses allowed by the RCW of the State of Washington and the City Finance Department is authorized to disburse such monies upon receipt of duly executed expense or petty cash vouchers, receipts, statements or personal affidavits as approved by the City. B. Car Allowance. Beginning on the effective date of this contract, the City shall provide a City automobile or pay a monthly car allowance of $300.00 for automobile expenses incurred by City Administrator's use of his personal vehicle for City related business. (Said allowance is in lieu of the City otherwise providing City Administrator with use of a City vehicle on a regular basis). Car allowance shall be reviewed by the Mayor on an annual basis and, considering changes in the CPI or other economic indicators, be increased as appropriate, provided that in no event will the car allowance be more than $600.00 C. Membership Dues. The City shall pay membership dues for the City Administrator's membership in the Washington City/County City Manager's Association (WCCMA) and the International City Manager's Association (ICMA). The City shall pay for the City Administrator's attendance at such conferences and for such other memberships, subscriptions, or dues, desirable for City Administrator's continued professional growth, advancement and the good of the City, and as shall be contained in the City's adopted annual budget. \ -2- D. Civic Club Membership. The City recognizes the desirability of representation in local civic clubs and other organizations, and the City Administrator is authorized to become a member of one (1) civic club for which the City shall pay dues and meeting expenses. City Administrator shall report to the City on membership he has taken at the City's expense. E. Professional Development. The City agrees to budget for and to pay for travel and subsistence expenses of City Administrator for professional and official travel, meetings, and occasions adequate to continue the professional development of City Administrator and to adequately pursue necessary official functions for the City, including, but not limited to the Washington State City/County City Managers' Association and such other national, regional, state and local governmental groups and committees thereof which City Administrator serves as a member. 5. Performance Review. The City Administrator's performance shall be reviewed annually on or about the anniversary date of the City Administrator's commencement date of employment as the City Administrator. The Mayor, as a part of the performance review process, shall define such goals and performance objectives, which they determine necessary for the proper operation of the City and to attain the City's policy objectives. The Mayor, in consultation with City Administrator, will establish a priority amongst the various goals and objectives and said objectives and priorities shall be reduced to writing. 6. Termination. A By the City. The parties recognize and acknowledge that City Administrator is an "at will" employee and agrees that the Mayor may terminate City Administrator with or without cause at any time and for any reason. B. Termination Pay. In the event the City elects to terminate City Administrator for any reason other than "cause", City Administrator shall receive a cash payment equal to six (6) months of City Administrator's base salary plus a sum equal to the premiums for the City medical plan for six (6) months medical, dental and vision for the City Administrator and dependents. City Administrator shall also receive payment for all accumulated Vacation Leave and Sick Leave accumulated in accordance with the Tukwila Municipal Code and the City's policies, practices and procedures. Said sum shall be subject to applicable federal withholding taxes. In consideration of said payment, City Administrator agrees to execute a release of all claims against the City, its elected or appointed -3- officers, employees or agents, for any claims arising out of City Administrator's employment or City Administrator's termination of employment with the City. Provided, if City Administrator is terminated for "cause", then City Administrator shall not be entitled to any termination pay. For the purposes of the Agreement, the term "cause" shall mean the conviction of a felony, or any act of embezzlement, dishonesty or theft. C. Reduction of Salary. In the event the City at any time during the term of this agreement reduces the salary or other financial benefits of City Administrator in a greater percentage than applicable across-the-board reduction for all employees of City, or in the event the City refuses, following written notice, to comply with any other provision benefiting City Administrator herein, or the City Administrator resigns following a suggestion, whether formal or informal, by the Mayor that he resign, then, in that event City Administrator may, at his option, be deemed to be terminated at the date of such reduction or such refusal to comply and shall be entitled to termination pay pursuant to section 6B of this agreement. D. Termination by City Administrator. In the event City Administrator elects to terminate employment with the City for any reason, City Administrator agrees to provide the City with not less than sixty (60) days notice prior to the effective date of said termination of employment. Notwithstanding the foregoing notice requirement, nothing shall prevent the Mayor upon receiving City Administrator's notice of intent to terminate City Administrator's employment from compensating the City Administrator at the rate of the City Administrator's base salary for the unexpired portion of the sixty (60) days notice and releasing City Administrator prior to the expiration of said notice. 7. Indemnification. The City shall indemnify, insure, and hold the City Administrator harmless, including providing additional legal counsel if the City cannot otherwise provide legal representation for the City Administrator, for any and all civil legal actions brought against the City Administrator arising out of the proper discharge of his duties while acting within the scope of his employment as City Administrator. 8. Bonding. The City shall bear the full costs of any fidelity or other bonds required of the City Administrator under any law or ordinance. 9. Integration. This Agreement constitutes the entire agreement between the parties, and both parties acknowledge that there are no other agreements, oral or otherwise, that have not been fully set forth in the text of this Agreement. -4- 10. Modification. The parties agree that this Agreement can be amended or modified only with the written concurrence of both parties. 11. Authorization of Facsimile Copies. Both parties agree that should the City Administrator sign a facsimile copy of this contract, transmitting the same to the City, that upon the Mayor signing said facsimile copy, both parties shall be bound by the terms and provisions of this Contract which shall be substituted for the signed facsimile copy. DATED this day of O -e/ , 20 1/ CITY OF TUKWILA CONTRACTOR ,6Z David Cline, City Administrator A ST/AUTHENTICATED APPROVED AS T I I RM: By: City Clerk By: Of CONTRACTOR'S ACKNOWLEDGMENT: the Cit rney David Cline represents and acknowledges that he has read this Agreement in its entirety and has had an opportunity to review the Agreement. He further represents and acknowledges that it is his understanding that this contract has been reviewed and approved by the City of Tukwila Attorney. By virtue of this passage, he further acknowledges that he has been advised that he has the right to consult independent counsel concerning this Agreement, and that by signing this Agreement he acknowledges that he has afforded himself the opportunity to do so, or hereby expressly waives his right to have the Agreement reviewed by independent counsel, and agrees to the terms hereof by signing the same. CONTRACTOR By: David Cline, City Administrator -5-