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HomeMy WebLinkAboutR-1591-4-98RESOLUTION NO. 1591-4-98(P) A RESOLUTION OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN EMPLOYEE SEVERANCE AND CONSULTING AGREEMENT. WHEREAS, Jonathan Michael McCarty ("McCarty") is employed by the City of Allen, Texas ("City"), as its City Manager; and WHEREAS, McCarty desires to resign from his employment and seek other career opportunities; and WHEREAS, McCarty may exercise his rights under the City Charter incident to any removal initiated by the City Council; and, WHEREAS, in an effort to resolve any potential claims between City and McCarty, the parties desire to enter into an Employee Severance and Consulting Agreement ("Agreement'); and, WHEREAS, the Agreement embodies the settlement that was reached between the parties as a result of negotiations between the parties. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, TEXAS, THAT: SECTION 1: The Allen City Council has reviewed the attached Employee Severance and Consulting Agreement, approves the Agreement, and authorizes the Honorable Stephen Terrell, Mayor of the City of Allen, to execute the Agreement as the act and deed of the City. DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, TEXAS, ON THE 2ND DAY OF APRIL, 1998. APPROVED: Stephen Terrell, MAYOR AS TO FORM: ATTEST: J Morn, CMC, CITY SECRETARY EMPLOYEE SEVERANCE AND CONSULTING AGREEMENT This Employee Severance and Consulting Agreement ("Agreement") is made by and between the City of Allen ("City") and Jonathan Michael McCarty ("McCarty") and elected members of the Allen City Council ("Council Members") for the considerations herein expressed: WHEREAS, McCarty is employed by the City as its City Manager; WHEREAS, McCarty desires to resign from his employment and to seek other career opportunities; WHEREAS, McCarty may exercise his rights under the City Charter incident to any removal initiated by the City Council; WHEREAS, in order to resolve any potential claims between City and McCarty, the parties desire to enter into this Agreement; and WHEREAS, this Agreement embodies the settlement that was reached between the parties as a result of negotiations between the parties. NOW, THEREFORE, for and in consideration of the hereinafter described payments and other good and valuable consideration, McCarty, City, and the Council Members agree and covenant as follows: McCarty hereby voluntarily resigns his employment with City, effective April 3, 1998, which shall be McCarty's last day as an employee of the City. Such resignation is hereby accepted by City and may not hereafter be revoked by McCarty. City and McCarty agree that McCarty shall announce his resignation at a regular meeting of the City Council immediately after the approval and authorization of this Agreement pursuant to a resolution adopted by the Allen City Council and execution by the proper authority at a public meeting to be held April 2, 1998. Employee severance and Comulling Agmemcnl-Jonmhan Michael McCarty - Page I ORIGINAL 2. On April 10, 1998, City shall pay to McCarty, the sum of Seventy -Seven Thousand Five Hundred Fifty -Three and No/100 Dollars ($77,553.000) (less mandatory deductions for FICA, Medicare and income tax withholding, together with McCarty's contribution to TMRS and ICMA deferred compensation plan) as severance compensation hereinafter referred to as "the Severance Payment." 3. In addition to the Severance Payment, the City shall, on April 10, 1998, pay to McCarty Sixty -Three Thousand Five Hundred Eighty -Four and No/100 Dollars ($63,584.00) (less mandatory deductions for FICA, Medicare and income tax withholding, together with McCarty's contribution to TMRS and ICMA deferred compensation plan) as consideration for consulting services to be rendered to the City by McCarty as described herein, hereinafter referred to as "the Consulting Payment." 4. In addition to the Severance Payment and the Consulting Payment, the City shall, on April 10, 1998, pay to McCarty Fifty -Eight Thousand Eight Hundred Sixty Three and No/100 Dollars ($58,863.00) (less mandatory deductions for FICA, Medicare and income tax withholding, together with McCarty's contribution to TMRS and ICMA deferred compensation plan) in accrued benefits for vacation and sick leave, back pay resulting from a retroactive salary adjustment and longevity pay, hereinafter referred to as "the Accrued Benefits Payment." 5. To the extent allowed by law, City and McCarty shall consider all amounts paid to be employee "salary." The Severance Payment, the Consulting Payment and the Accrued Benefits Payment shall be included as compensation for McCarty's retirement contributions to the ICMA deferred compensation plan and TMRS, longevity pay, back pay, any salary increases, and consulting fees for work contemplated by this Agreement. City further agrees to pay the City's share of the obligatory FICA and Medicare and TMRS contribution amounts as required as a part of this Employee Severance and Consulting Agmcment- Jonathan Michael McCarty - Page 2 Agreement and maintain its current contribution for McCarty's health and dental insurance through September 30, 1998. 6. McCarty and City agree that the Severance Payment is not required by the City's policies and procedures and is considered by the parties as special compensation given to McCarty in consideration for McCarty's promises and covenants contained in this Agreement. 7. McCarty shall receive regular salary earned through April 3, 1998, in addition to the Severance Payment, the Consulting Payment, or the Accrued Benefits Payment. However, no further payments, benefits, or contributions shall be required by City to McCarty other than the aforementioned salary and the Severance Payment, the Consulting Payment and the Accrued Benefits Payment. 8. In exchange for the Consulting Payment, McCarty agrees to provide consulting services to the City, at no additional cost, on an "as needed" basis, at mutually acceptable times based on the circumstances, incident to (i) outstanding litigation filed on or before the Effective Date, and (ii) City projects which are pending as of the Effective Date. In no event shall McCarty be required to provide consulting services after September 30, 1998, without an additional compensation agreement. 9. The City shall obtain confirmation from its general liability and public officials/officers insurance carriers that McCarty is a "covered person" under said policies for the period of his employment and through the consulting period. 10. McCarty and City agree to pay their respective attorney's fees incurred in the negotiation, preparation and completion of this Agreement. 11. This Agreement shall become effective and binding upon City and McCarty only upon its approval and adoption at a regular or special meeting of the City Council, and the execution hereof by the properly designated authority or person acting for and on behalf of City as set out in Employee Severance and Consulting Agreement - Jonathan Michael McCarty - Page 3 the resolution authorizing this Agreement and the expiration of McCarty's Right of Revocation as contained herein. 12. IN CONSIDERATION OF THE CITY ENTERING INTO THIS AGREEMENT AND PAYING THE SEVERANCE PAYMENT, THE CONSULTING PAYMENT AND THE ACCRUED BENEFITS PAYMENT, MCCARTY HEREBY KNOWINGLY AND VOLUNTARILY RELEASES AND FOREVER DISCHARGES THE CITY AND PAST AND PRESENT COUNCIL MEMBERS INCLUDING MAYOR STEPHEN TERRELL, COUNCIL MEMBERS LONNIE THOMAS, DAVID KERR, DOUG GALLAGHER, DAVE POWYSZYNSKI, KENNETH FULK AND MELISSA OWEN, AND ALL OTHER ELECTED AND APPOINTED OFFICIALS, EMPLOYEES, AGENTS, REPRESENTATIVES, INSURERS AND ATTORNEYS OF THE CITY (IN ALL CAPACITIES, INCLUDING INDIVIDUALLY) OF AND FROM ANY AND ALL PAST AND PRESENT CLAIMS, KNOWN AND UNKNOWN, WHICH MCCARTY, HIS HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS HAVE OR MAY HAVE AGAINST THE CITY AS OF THE DATE OF EXECUTION OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY ALLEGED VIOLATION OF: THE NATIONAL LABOR RELATIONS ACT; TITLE VII OF THE CIVIL RIGHTS ACT OF 1964; SECTIONS 1981 THROUGH 1988 OF TITLE 42 OF THE UNITED STATES CODE; THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974; THE IMMIGRATION REFORM AND CONTROL ACT; THE AMERICANS WITH DISABILITIES ACT OF 1990; THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967; THE FAIR LABOR STANDARDS ACT; THE OCCUPATIONAL SAFETY AND HEALTH ACT; THE FAMILY AND MEDICAL LEAVE ACT OF 1993; THE TEXAS WORKERS' COMPENSATION RETALIATORY RIGHTS LAW; THE TEXAS Employee Sevetanco and Consulting Agmement- Jonathan Michael McCarty - Page 4 COMMISSION ON HUMAN RIGHTS ACT; THE TEXAS COMMISSION ON HUMAN RIGHTS LAW; THE TEXAS OCCUPATIONAL SAFETY ACT; THE TEXAS EMPLOYMENT DISCRIMINATION ACT; THE TEXAS HEALTH AND SAFETY CODE; THE TEXAS EQUAL PAY LAW; THE TEXAS WAGE -HOUR AND WAGE -PAYMENT LAWS; ANY OTHER FEDERAL, STATE OR LOCAL LAW, STATUTE OR REGULATION, INCLUDING BUT NOT LIMITED TO, HUMAN RIGHTS, CIVIL RIGHTS, WAGE -HOUR, WAGE -PAYMENT, PENSION, AND LABOR LAWS, OR OTHER LAWS, RULES AND/OR REGULATIONS, CONSTITUTIONS, ORDINANCES, PUBLIC POLICY, CONTRACT OR TORT LAWS, OR ANY CLAIM ARISING UNDER THE COMMON LAW, OR ANY OTHER ACTION; OR ANY ALLEGATION FOR COSTS, FEES, OR OTHER EXPENSES INCLUDING ATTORNEYS' FEES INCURRED IN THESE MATTERS. 13. Notwithstanding anything stated to the contrary herein, the release and discharge set forth in this Agreement shall not apply to any benefits in which McCarty becomes vested prior to the Effective Date under any compensation, retirement or benefit plans, programs and arrangements maintained by the City for the benefit of its employees. The City and McCarty agree that nothing in this Agreement prohibits McCarty from applying for unemployment benefits, however, should McCarty receive unemployment benefits, then the City shall be entitled to a reimbursement from McCarty for any amounts paid by the City m a result of McCarty's receipt of unemployment benefits. 14. The City, and its officers, attorneys, agents, employees or elected officials, including Mayor Stephen Terrell, and Council members Lonnie Thomas, David Kerr, Doug Gallagher, David Powyszynski, Kenneth Fulk, and Melissa Owen, (collectively, the "Council Members") hereby fully and forever release, acquit and discharge McCarty from any and all claims, demands, judgments, Emplayce Severance and Consulting Agreement - Jonathan Michael McCarty - Page 5 damages, expenses, attorney's fees, actions and causes of action which City and the Council Members may individually, personally or as an elected official now have or may have arising out of or in any way connected with McCarty's employment with City, and any breach of the terms of this Agreement by McCarty shall not act to revive any claims hereby released, but shall only entitle City or any Council Members a claim for damages for such breach. 15. MCCARTY MAY REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN (7) DAYS FOLLOWING THE DAY HE EXECUTES THIS AGREEMENT. ANY REVOCATION WITHIN THIS PERIOD MUST BE SUBMITTED, IN WRITING, TO THE CITY AND STATE AS FOLLOWS: "I HEREBY REVOKE MY ACCEPTANCE OF THE AGREEMENT ENTERED INTO BETWEEN MYSELF AND THE CITY OF ALLEN, DATED APRIL 3,1998." THE REVOCATION MUST BE ORIGINALLY SIGNED, MAILED TO AND POSTMARKED, OR PERSONALLY DELIVERED TO THE MAYOR AND THE CITY COUNCIL, CITY OF ALLEN, ONE BUTLER CIRCLE, ALLEN, TEXAS 75013, WITHIN SEVEN (7) DAYS OF EXECUTION OF THIS AGREEMENT. 16. McCarty, the City and the Council Members warrant and covenant that they are the holders and owners of any claims or causes of action against each other, and that they have not assigned or otherwise transferred their interest in said claims or causes of action, if any. 17. The parties acknowledge they have been or have had the opportunity to be represented by attorneys throughout the negotiations leading to this Agreement, they have or have had the opportunity to consult with their attorneys regarding the meaning and effect of this Agreement and agree that the terms and provisions of this Agreement are not to be construed Employee Severance and Consulting Agreement -Jonathan Michael McCarty - Page 6 more strictly against any one party of this Agreement, and it is the intention of all parties to this Agreement that its terms and provisions will be construed as having the plain meaning of the terms used therein. 18. The parties hereto fully understand that if the facts giving rise to this Agreement should be found to be other than or different from the facts now believed to be true, the parties hereto expressly accept and assume the risk of such possible difference in facts and agree that this Agreement shall be and will remain in effect notwithstanding any such difference in facts. 19. City shall be in default if it fails to perform its obligations contained in this Agreement. Upon default, McCarty shall give the City written notice of such default, and allow the City five (5) days to cure the default. If the City does not cure the default, if any, then McCarty may seek specific performance or damages. McCarty shall be in default for any failure to perform his obligations contained in this Agreement. Upon written notice of default by City to McCarty, McCarty shall have five (5) days to cure the default. If McCarty fails to cure the default, then the City may seek specific performance or damages. 20. The City and McCarty agree that the City shall not be responsible for providing any employment references whatsoever solicited by or for McCarty, without the prior written authorization of McCarty. Notwithstanding the foregoing, McCarty hereby releases the City from any and all liability from the City's release of McCarty's employment information pursuant to governmental proceedings, lawsuits, subpoena, court order or any unemployment claim. 21. McCarty hereby agrees not to disclose confidential information obtained in the course and scope of employment without the prior written consent of the City. Employea Severance and Consulting Agreement-lonaNan Michael McCarty - Page 22. McCarty hereby agrees not to engage in any communications or conduct that would interfere with or obstruct the business, community, or employment relationships between the City and any former, current, or future employee, third person, or organization. 23. This Agreement contains the entire Agreement between the parties hereto and the terms of this Agreement are contractual and not a mere recital. Further, this Agreement shall be binding upon McCarty and his heirs, assigns, administrators, executors and legal representatives forever. 24. It is expressly understood and agreed that any injuries and damages and legal liability alleged heretofore by either McCarty or City are disputed and denied and nothing contained herein is to be construed as an admission of any liability by McCarty, City or any Council Member, or any other individual employed by or otherwise connected with either McCarty or City. 25. This Agreement is performable in Collin County, Texas, and shall be construed under the laws of the State of Texas. If any provision of this Agreement is for any reason held unconstitutional or void by a court of competentjurisdiction, such holding shall not affect any valid portion of this Agreement. 26. MCCARTY HAS BEEN ADVISED BY THE CITY THAT HE HAS AT LEAST TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. MCCARTY ACKNOWLEDGES THAT HE UNDERSTANDS AND FULLY APPRECIATES THE TERMS AND CONDITIONS EXPRESSED IN THIS AGREEMENT AND HAS HAD REASONABLE OPPORTUNITY TO REVIEW THIS AGREEMENT AND CONSULT WITH HIS ATTORNEY. HAVING ELECTED TO EXECUTE THIS AGREEMENT AND TO FULFILL THE CONDITIONS SET FORTH HEREIN, MCCARTY FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO RELEASE, Employee Seveeance and Consulting Agreement-JonaNan Michael McCarty - Page 9 WAIVE, AND SETTLE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST THE CITY AND BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. DATED effective the 3rd day of April, 1998. APPROVED: City of Allen, Texas 0 Stephen Terrell, Mayor Indivi�duaally_ Agreed and Accepted: Stephen Terrell, Mayor AYy. r, &T. Lonnie Thomas, Council Member 1����✓ Doug allagher, C cil M ber Kenneth Fulk, Council Member APPRQj7ED AS TO FORM: j Piet RaPSCounsel for the City of Allen David rerr,]Council Member %Davee Pow}s� ski Council Member �—//G -i1 /c�ember Melissa Owen, Council Member Employee Severance enA Coruulling AgreemenP loneNmn Michazl McCvty - Pege 9 ifA OaaISONION EX%RES79, 2001