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HomeMy WebLinkAboutResolution - 2016-R0407 - Severance Agreement - Jarrett Atkinson - 11/17/2016Resolution No.2016-R0407 Item No.7.4 November 17,2016 RESOLUTION BE IT RESOLVED BY Tl IE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute a Severance Agreement by and between the City of Lubbock and Jarrelt Atkinson,a copy of which is attached hereto as Exhibit "A"and incorporated herein for all purposes,and related documents. Passed by the City Council on Novemhcr 17,2016 . ATTEST: Lt^i^L JU-M^t^ RcDcdca Garza.Citv Secret APPROVED AS TO FORM: Chad Weaver. City Attorney vwxcdocs'RES.Severance Agrnil-Atkinson November 15.2016 DANIEL M.POP!"MAYOR Resolution No. 2016-RO407 SEVERANCE AGREEMENT COUNTY OF LUBBOCK § STATE OF TEXAS § This Agreement is entered into by and between the City of Lubbock, Texas (hereinafter called "City") and W. Jarrett Atkinson (hereinafter called "Atkinson"). RECITALS WHEREAS. the City has employed Atkinson as its City Manager, and WHEREAS, Atkinson has demonstrated and proven expertise in the management of municipal affairs; and WHEREAS, to define and memorialize in writing the duties, obligations, and rights of each party in the event Atkinson is terminated by the City, Atkinson and City desire to enter into this severance agreement; and WHEREAS, the City and Atkinson desire to agree upon and set forth the following terms and conditions as a severance agreement. NOW THEREFORE: AGREEMENT Based upon the mutual covenants expressed herein, the City and Atkinson hereby agree as follows: 1. EMPLOYMENT. At the time of making this severance agreement, the City has employed Atkinson as City Manager of the City of Lubbock, whose services as City Manager are indefinite in term. Nothing in this severance agreement shall restrict the right of the City to terminate the employment of Atkinson at any time. 2. COMPLIANCE WITH CHARTER. This severance agreement is not intended, nor shall it be interpreted to be, a personal services contract for a stated term in conflict with Chapter 1, Article IX, Section 21, Lubbock City Charter. Specifically, no stated term is set forth herein. Additionally, this severance agreement is not intended, nor shall it be interpreted to create any conflict with Chapter 1, Article IX, Section 4, Lubbock City Charter, as this severance agreement shall not and does not create any public office of emolument, and does not establish any interest on the part of Atkinson in the profits or emoluments of any contract, job, work or service for the City. 3. TERMINATION BY ATKINSON. Nothing in this severance agreement shall prevent, limit, or otherwise interfere with the right of Atkinson to resign and terminate his employment by the City at any time, should he choose to do so, upon thirty (30) days prior written notice. Severance Agreement —Atkinson Page I of 4 4. TERMINATION BY CITY FOR CAUSE. The City may, for Cause (as defined below), terminate Atkinson's employment upon written notice specifying the particulars of the Cause. In the event Atkinson is terminated for Cause, the City shall be discharged and excused from any responsibility with respect to severance compensation. As used in this severance agreement, "Cause" shall mean: (a) Recurring acts of willful, knowing, grossly negligent, and habitual neglect of any significant duty or significant obligation required to be performed by Atkinson, or refrained from by Atkinson, under the Lubbock City Charter, city ordinance or the laws of the State of Texas or the United States; (b) Atkinson's plea of guilty, or no contest to, or conviction of, a felony, any charge that constitutes official misconduct under State law, or a crime involving moral turpitude; (c) Knowingly or grossly negligent misapplication or misuse of public funds, property, equipment or personnel of the City; (d) An act of fraud or of intentional misrepresentation to the City Council; (e) Atkinson's inability to perform his duties as a result of a disability as defined in the Americans with Disabilities Act, and after the City's full compliance with that Act and the Family Medical Leave Act; or (Q Atkinson's death. S. TERMINATION BY CITY WITH NO CAUSE. Severance shall be paid only as follows: (a) In the event Atkinson's employment is terminated without cause before the first annual anniversary of City employment and while Atkinson remains willing and able to perform his duties, the City agrees to pay a severance payment equal to six (6) months of base salary and benefits. (b) In the event Atkinson's employment is terminated without cause at any time after the first anniversary of employment and while Atkinson remains willing and able to perform his duties, then City agrees to pay a severance payment equal to six months of base salary and benefits, plus an additional month of like payment for each year of service as City Manager, up to a maximum of twelve (12) months of severance pay. 6. OTHER TERMINAL PAY. Upon termination of his employment for any reason at any time, including by resignation, Atkinson shall receive payment for all wages due, accrued and unused vacation, unused sick leave, and such other terminal benefits as are provided for other employees of similar longevity. Terminal pay provided pursuant to paragraph 3,4, or 5 shall be computed at Atkinson's salary, allowances Severance Agreement —Atkinson Page 2 of 4 and benefits immediately prior to termination of employment. Such pay shall be distributed In accordance with City's procedures for terminal pay of other employees, or as time payments not exceeding twelve (12) months for the total payout, at Atkinson's choice. 7. REDUCTION OF SALARY. In the event Atkinson's salary shall be reduced by a greater percentage than that of any universal salary reduction for all City employees, such salary reduction may be deemed a termination with no Cause by Atkinson and he shall be entitled to the benefits set forth above for termination with no Cause. B. WAIVER OF RIGHT TO SUE. With the exception of legal action to enforce the terms of this severance agreement, Atkinson shall waive, and does waive, the right to bring suit against the City for any cause whatsoever as consideration for this severance agreement and any severance payment made shall be conditioned upon both Atkinson and City executing a mutual full release of claims against the other. 9. NO WAIVER. The waiver by either party of any breach or violation of this severance agreement shall not operate as or be construed to be a waiver of any subsequent breach thereof. 10. NOTICES. Any and all notices under this severance agreement shall be furnished in writing and sent by certified mail, return receipt requested, to the residence address of Atkinson or to the principal offices of the City of Lubbock. 11. DUPLICATE ORIGINALS. This severance agreement is executed in duplicate originals, each of which shall be deemed an original and which shall together constitute one and the same severance agreement, with one counterpart being delivered to each party hereto. 12. NON -ARBITRATION. Atkinson and City each reserve the right to exercise any right or remedy available to either of them by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the parties shall not be subject to any arbitration process prior to exercising an unrestricted right to seek judicial remedy. Nothing in this agreement shall be construed to prohibit the parties from mutually resolving a dispute concerning their rights and duties under this Agreement by negotiation or mediation prior to or during litigation. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. Severance Agreement —Atkinson Page 3 of 4 Executed this 17th day of November . 2016, at Lubbock. Texas. CITY MANAGER: CITY OF LUBBOCK: W. JAR TT ATKINSON DANIEL M. POPE, MAYOR ATTEST: J Rebec a Garza, City -Secretary APPROVED AS TO FORM: Chad Weaver, City Attorney Severance Agreement - Atklnson Page 4 of 4