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HomeMy WebLinkAbout03-27-17 City Commission Packet Materials - A1. Severance and Release Agreement with Kukulski Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Mayor Carson Taylor SUBJECT: Authorize the Mayor to Sign Severance and General Release Agreement with Chris Kukulski MEETING DATE: March 27, 2017 AGENDA ITEM TYPE: Action RECOMMENDATION: Consider public comment and authorize the Mayor to execute a Severance and General Release Agreement with Chris Kukulski that would end Mr. Kukulski’s employment as the Bozeman City Manager effective April 1, 2017. SUGGESTED MOTION: I move to authorize Mayor Taylor to sign the Severance and General Release Agreement with Chris Kukulski. BACKGROUND: This item proposes the City through the Commission enter into a severance agreement with City Manager Chris Kukulski. The basics of the agreement include: • Employment terminates on April 1st; and • A severance commensurate with what would be required of the City if the City Commission followed Section 3.02 of the Bozeman City Charter. UNRESOLVED ISSUES: n/a ALTERNATIVES: n/a FISCAL EFFECTS: Would require the City to pay severance as outlined in the attached Severance and General Release Agreement. Other fiscal effects will occur from future Commission decisions regarding an interim city manager, recruitment of a permanent city manager, etc. Attachments: Severance and General Release Agreement with Chris Kukulski 2016 Employment Agreement between City of Bozeman and Chris Kukulski Report compiled on: March 22, 2017 63 SEVERANCE AND GENERAL RELEASE AGREEMENT This Severance and General Release Agreement (hereinafter “Agreement”) is effective on the Effective Date as defined herein and is between Chris Kukulski of 1445 Cherry Drive, Bozeman, Montana (“Employee”) and the City of Bozeman, 121 N. Rouse Ave., Bozeman, MT 59771-1230 (“Employer”), (collectively “the Parties”). R E C I T A L S WHEREAS, Employee was employed by Employer pursuant to that certain employment agreement dated February 1, 2016 (“Employment Agreement”) and Article III of the City of Bozeman Charter (“City Charter”); and WHEREAS, Employer and Employee have agreed to terminate the Employment Agreement as of the Effective Date (defined below); and WHEREAS, the Parties have agreed that Employee will be provided with certain severance benefits; and WHEREAS, the parties enter into this Agreement in lieu of the City Commission initiating procedures pursuant to Article III, Sec. 3.02 of the Bozeman City Charter; WHEREAS, in consideration of these severance benefits, Employee has agreed to release certain claims he might have against Employer arising out of his employment or the termination of his employment; NOW, THEREFORE, for and in consideration of the mutual promises, obligations and covenants herein contained, the Parties voluntarily and knowingly agree as follows: A G R E E M E N T 1. Effective Date. This Agreement shall become effective on the day it is executed by Employee and Employer (“Effective Date”). 2. Termination. Employee’s employment and duties as City Manager shall terminate on April 1, 2017. Employee agrees that after April 1, 2017, he will not perform any work for Employer, his access to all of Employer’s electronic systems shall be shut off and he shall have no authority to act on behalf of Employer or any related entities. 3. Release. Employee shall, and hereby does, on behalf of himself, his heirs, successors and assigns, acknowledge full and complete satisfaction of, and does hereby waive his right to damages from and release, absolve and discharge Employer, its subsidiaries, divisions, and affiliated corporations, past and present, and each of them, as well as their trustees, directors, officers, stockholders, agents, servants, employees, representatives, heirs and attorneys, past and present, and each of them (collectively the 64 2 “Released Parties”), from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, complaints, wages, obligations, debts, labor grievances, expenses, damages, judgments, orders, and liabilities of whatever kind or nature in law, equity or otherwise, whether known or unknown, suspected or unsuspected, related to or arising out of his employment or termination of his employment, which he owns or holds or at any time heretofore owned or held against the Released Parties or any one or more of the Released Parties, including specifically but not exclusively, without limiting the generality of the foregoing, (1) except as required pursuant to 2-9-305, MCA, any and all claims arising out of or in any way connected with Employee’s employment or payment of compensation by Employer or its affiliates under the Employment Agreement, City Charter or otherwise; (2) any and all claims arising out of or in any way connected with the termination of Employee’s employment with Employer; (3) any claim that could arise under common (including civil tort) law and/or state or federal statutes, including but not limited to, any and all claims under the federal Fair Labor Standards Act, the Equal Pay Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Family and Medical Leave Act, the Civil Rights Act of 1866, the Montana Wrongful Discharge from Employment Act, the Montana Wage Payment Act, the Montana Human Rights Act, including but not limited to state and federal tax laws, and any other federal, state or local laws, without limitation or exception. The Parties intend this Agreement to have a broad effect and to settle to the fullest extent permitted by law all claims and disputes, without limitation of any kind or nature, whether known or unknown, relating to Employee and his employment by Employer, subject to Employer’s obligation pursuant to Section 2-9-305, MCA (2015) and all amendments thereto. 4. Severance Amount. In consideration for this Agreement, and in satisfaction of any obligation to make payments under the Employment Agreement, Employer agrees to pay to Employee the following amounts (the “Severance”) to be mailed to the Employee at the address listed in this Agreement unless the Employee provides written notice otherwise: (1) all accrued and unpaid base salary through April 1, 2017 to be paid within three (3) business days after April 1, 2017; (2) reimbursement of all expenses payable in accordance with past practice as set forth in the Employment Agreement to be paid within three (3) business days after April 1, 2017; (3) a total payment of $148,500.00 (one hundred forty eight thousand five hundred dollars and zero cents), less required withholdings, equal to twelve (12) month’s base salary made, unless otherwise agreed to between the Employer and Employee, in two installments the first of which will be paid to the Employee within three (3) business days after April 1, 2017 and be equal to eight (8) months of base salary ($99,000 (ninety nine thousand dollars and zero cents)) less required withholdings and the second final payment ($49,500 (forty nine thousand five hundred dollars and zero cents)) less required withholdings will mailed January 3, 2018 and be equal to four (4) months base salary. In addition, the Employer will make a contribution within three (3) days after April 1, 2017 to the Employee’s retirement accounts according to the Employee’s current distribution schedule in the amount of $27,900 (twenty seven thousand nine hundred dollars). Finally, within three (3) business days after April 1, 2017 the Employer will make a one-time payment to the Employee in 65 3 the amount of $5,000.00 (five thousand dollars and zero cents) for life and disability insurance. 5. Leave Payouts and Vehicle and Housing Proration. Employer will pay out all accrued and unused leave per City policy. Employer will pay Employee prorated vehicle and housing allowance as of April 1, 2017. 6. Insurance. The Parties understand that continuation of medical benefits, including dental and vision benefits, is governed by the appropriate provisions of the federal law commonly known as COBRA, 29 U.S.C. §1162, et seq., and it shall be solely Employee’s responsibility to initiate any continuation of insurance coverage. 7. Acknowledgment of Compensation. Employee acknowledges that, except for the sums set out in this Agreement, he has received full payment of all wages and compensation due to him including, but not limited to, salary, vacation, and bonuses. 8. Non-disparagement. Employee and Employer further agree, as a consideration for this Agreement and the payments made hereunder, that neither party to this Agreement, by word, writing or action, shall do anything to disparage the other party, its business or its services in any way. 9. Confidential Information. During the course of employment, Employee has acquired certain "Confidential Information" of the Employer. "Confidential Information" shall mean any information, including Intellectual Property Rights and Trade Secrets, that is not generally known outside the Employer and that is proprietary to the Employer, relating to any phase of the Employer's existing or reasonably foreseeable activities which is disclosed to Employee by the Employer including information conceived, discovered or developed by Employee. Employee agrees that he shall not use such Confidential Information acquired during the term of his employment with the Employer and shall not disclose to any person, other than an employee of the Employer any Confidential Information obtained by him while in the employ of the Employer. 10. Severability. The terms of this Agreement are contractual and not a mere recital. Should any provision, or part of any provision, or application thereof, be held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provision or application, and to this end, the provisions of this Agreement are declared to be severable. 11. No Representations. Employer makes no representations regarding the tax consequences of this Agreement or any payments made hereunder. 12. Interpretation. The Parties agree that this Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any party. The terms of this Agreement shall be enforced pursuant to Montana law. 13. Notice. Notice to be given under this Agreement should be sent by first class mail, postage prepaid to the parties at the following addresses: 66 4 Chris Kukulski 1445 Cherry Dr. Bozeman, MT 58901 City of Bozeman Attn: Mayor P.O. Box 1230 Bozeman, MT 59771 14. Complete Agreement. The undersigned acknowledge that they have carefully read and understood the contents of this Agreement. They further acknowledge and agree that the consideration recited in this Agreement is the sole and only consideration for this Agreement, and no representations, promises, or inducements have been made by any party or its officers, employees, agents or attorneys thereof other than appear in this Agreement. EXCEPT AS SPECIFICALLY SET OUT HEREIN, this Agreement supersedes any other oral or written agreement or understanding between the parties regarding any matter within the scope of this Agreement, including, without limitation, the Employment Agreement. 15. Public Document. This Agreement is a public document and shall be available for public inspection. Employee acknowledges voluntarily entering into this Agreement on the date written above, with full knowledge of the rights that he may be waiving. DATED: _______________________ Chris Kukulski _____________________________ DATED: _______________________ Employer: City of Bozeman By: ___________________________ Mayor Carson Taylor 67 68 69 70 71 72 73 74 75 76 77