Resolution 1257A RESOLUTION OF THE CITY COUNCIL OIL THE CITY CBI EDMONDS,
WASHINGTON, DECLARING VOID TWO PURPORTED AGREEMENTS
THAT WERE SI('NED BY MAYOR MIKE COOPER AND EXECUTIVE
ASSISTANT KIMBERLY COL E
WHEREAS, a document entitled "CR2A Agreement Between the City of Edmonds and Kimberly
Cale" was signed by Mayor Mike Cooper and Kimberly Cole on September 22, 2011; and
WHEREAS, a second document entitled "Separation Agreement and General Release between
Kimberly Cole and City of Edmonds" was signed by Mayor Mike Cooper and Kimberly ' Cole on
approximately September 23, 2011; and
WHEREAS, pursuant to RCW 35A.11.010, the City Council is vested with the authority to contract
on behalf of the City of I;dinonds; and
WHEREAS, the City Council has delegated some contracting authority to the Mayor, specifically the
authority to contract for goods and services valued at less than $100,000.00; and
WHEREAS, the two purported separation agreements are not contracts for goods or ser6ces; and
WHEREAS, the City Council has not delegated any other authority for the Mayor to enter into
employment separation agreements on behalf of the City; and
WHEREAS, the CR2A Agreement Between the City of Edmonds and Kimberly Cale, signed on
September 22, 2011, and the Separation Agreement and General Release: between Kimberly Cole
and City of Edmonds, September 23; 2011, were signed by the Mayor in the absence of such
authority, now therefore,
THE CITY COUNCIL OF THE CITY OIL EDMONDS, WASHINGTON, HEREBY
Section 1. Ultra Mires Act. The Mayor's actions in purportedlyexecuting two separation
agreements with Kimberly Cagle were ultra vines actions in that he had no authority to enter into
such agreements; notwithstanding initial advice to the contrary.
Section 2. 11gree4nents Declared Void: The September 22, 2011 CR2A Agreement Between the
City of Edmonds and Kirnberly Cole and the September. 23, 2011 Separation Agreement and
General Release between Kimberly Cole and City of Edmonds are void ab initio, have no legal effect;
and the City of Edmonds shall not be bound by them.
Section 3. No Payment. Because the two purported agreements are void, the City shall not make
any payment pursuant to the two purported agreements.
RESOLVED this,V" day of October, 2011.
*1RU-4'S
C OU C]:;1 .1m, TIR0 M T'.1��"T°T,RS(O,) '
AATEST,
,
01 ed.
FTI.AM WITH `T°HTs CT'lY CA_,I'RK 10/04/ 011
PASSED TIC '1 H CI°T Y COUNCIL 10/04/201
48 7- 7 v0763, V.
?~ The two parties will agree onthe separation mfKimberly Cole from the City ofEdmonds effective
upon signed.
E. Neither party agrees to speak to the press regarding any matter related to her employment at
the City of Edmonds for 1 year from the point of this agreement and separation.
3. Within 30 days of separation, the City of Edmonds will compensate Kimberly Cole $65,000 in a
one-time lump sum payment. The City of Edmonds will be responsible for the costs associate
with a continuation of the current level of health care benefits to MsCole for a period of 12
months from the date of this agreement.
4. Kimberly Cole Will be allowed 30 Minutes to clean out her office With the appropriate
supervision in place, and Will be escorted at all times while on City of Edmonds premises.
5. All rights doafuture legal remedy for claims against the
,"' Edmonds are reserved by
Kimberly Cole.
G. —�— - unot ` application
The City nocontest anyrorunmmp/oymerooenernsoy
Kimberly Cole.
"By mutual agreement, and unrelated toany disciplinary action, Kimberly Cole isno
8. The City of Edmonds commits to complete the current work load assigned to Kimberly Cole in a
timely manner, and will produce a memorandum explaining the reasons for any lack of timely
work product completion and not a function of Kimberly Cole's work performance.
61. 1
For Kimberly Cole Date
For the City f Edmonds Date
BETWEEN
KIMBERLY COLE AND CITY OF EDMONDS
I. RECITALS
I b This Separation Agreement and General Release ("Agreement") is between Kimberly Cole her marital
community or domestic partnership, heirs, administrators, representatives, executors, attorneys,
successors and assigns ("You" or "Your") and the City of Edmonds its affiliates, employees, members,
directors, officers, agents, attorneys, successors, and assigns ("EMPLOYER"), collectively, the
"Parties."
1 You have been employed by EMPLOYER since August 1, 20 10.
1 Both You and EMPLOYER are desirous of resolving all matters, known or unknown, arising out of
Your employment with EMPLOYER and separation from EMPLOYER according to the terms,
conditions and consideration included in this Agreement.
4. This Agreement is dated for reference purposes September 23, 2011, which is the date EMPLOYER
delivered this Agreement to You for Your consideration.
IL AGREEMENT
This Agreement represents the entire understanding and agreement between the parties concerning Your
employment with and separation from employment with EMPLOYER, This Agreement supersedes any prior
oral understandings, agreements or representations between the parties.
All payments made in accordance with this Agreement are less lawful or authorized deductions, including
withholding for -federal and any state taxes. EMPLOYER makes no representations as to the tax consequences
to You. You acknowledge that You have had adequate time to consult a financial advisor or accountant before
signing this Agreement.
Based on the above set out recitals, the parties agree that only if all conditions of this Agreement are met will
the following terms apply:
A. EMPLOYER'S OBLIGATIONS
L Separation Date. You understand that EMPLOYER is separating You from employment, 'rhe
effective date of Your separation from employment is September 22, 2011 ("Separation Date").
2. Personnel File. Your Personnel File will reflect "resignation" as the reason for Your separation
from employment. �\
e k 411147 (ao'e- V, : 1 Scparg:tion PU, EMPLOYER will pay You SCUZJRty-seven Thou nd dollars ($84,000) as
separation pay, less all lawful and authorized deductions. This separation pay, to which You
otherwise would not be entitled, is paid in consideration for Your signature on this Agreement.
EMPLOYER will make this separation payment to You on EMPLO YER's next regularly
scheduled payroll date after the Effective Date of this Agreement,
4. Lnen:!Woyment. If requested by the Washington State Employment Security Division
("Division"), EMPLOYER will inform the Division that it will not contest Your application for
unemployment and will not appear at any hearing. EMPLOYER will do so, so long as in
Pagel of 4
'
1-11 Kimberly Coles Initials -?)
E LOYE 's opinion, the reasons given by You for separation are accurate. Characterizing
Your separation to the Division as resignation is acceptable to EMPLOYER.
5 COBRA Continuation Cover_g_g Your Normal participation in EMPLO IZ's group
medical/dental will terminate on the last day of the north in which the Separation Late fell. If
You would like to continue coverage after September 30, 2011, coverage thereafter will be made
available to You and Your eligible dependents pursuant; to current federal law (COBRA); at
EMPLOYER'sexpense for a period of twelve (12) months from the begin ng date of Your
COBRA eligibility. Following Your separation from employment, information will be provided
to You regarding this coverage.
6. Termination of BciiefitsYour participationother EMPLOYER benefit plans and
underprograms ended or will end either (a) on the Separation Date, or (b) on the last day of the month
in which the Separation Date fell, ifso provided in the applicable benefit plan orprograrn. Your
rights pension beriefit plans in which You may have participated will be '
accordance with the written plan documents governing those plans.
1 Your Authority. You represent and warrant that You have all necessary authority to enter into
this Agreement (including, on behalf of Your marital community or domestic partnership, if any)
and that You have not transferred any interest in any claims to Your spouse, domestic partner or
any third party.
2 No Additional C,otripensation. You expressly acknowledge and agree that You have no claims or
entitlement to additional compensation or benefits from EMPLOYER, past, present or fixture,
except as set out in this Agreement.
3 Benefits. You agree that You have already been informed of all rights and options pertaining to
other benefits, entitlements or continuations, such as pension programs.
4: I:epresentations Re ardan F,mplo�Lment Statics. You understand that Your Separation Date is
the date that Your employment with EMPLOYER ended. You understand that You are not
authorized to represent Yourself as affiliated in any way with EMPLOYER after this date, even
if You receive severance payments after the Separation Date.
5. References. You will instruct all prospective employers to direct requests for references to
EMPL OYER's Mayor However; You agree and acknowledge that EMPLOYER may state that
its policy is to provide only dates of employment, current or last position held and current or last
compensation level.
6 Return of Pro ei . On Your Separation Date You will deliver to E PLO R's Mayor all
EMPLOYER property, including keys, documents, computers, and other physical items or
repositories of any confidential - or proprietary informationnot on EMPLOYER premises, but
within Your possessionorcontrol, whether stored in traditionalfilesor in any electronic or
digital media,
r
•r t - i r r- - r � r _ r r •
Page 2 of
Kimberly Cole's hiltials-------
continue to respect and preserve the attorney -client privilege and work product doctrine as to
those legal matters to which You were privy during Your employment.
�r A Kgernent t onlidcnti. ality. As further specific consideration, You agree that the terns of this
Agreement are intended to be confidential between the Parties. Except in response to a lawful
subpoena, court order or governmental administrative request, or as otherwise permitted by law,
neither You, nor :EMPLOYER, will discuss the terms of this Agreement with any third party,
including but not limited to; members of the press, and any current or former employee of
EMPLOYER except where necessary for the full implementation of this Agreement The sole
exceptions are that You may discuss the terms of this Agreement with Your spouse or domestic
partner, Your attomey(s), and tax advisor(s).
9. Waiver and Release of Claims
a. You Hereby release (a) EMPLOYER (b) each of their past and present members, officers,
managers; agents, employees, representatives, administrators, insurers, and fiduciaries,
and (c) the predecessors; successors, transfcrees and assigns of each of the persons and
entities described in this sentence, from anycla' s of wrongful termination.
b. Any and all rights pertaining to complaints, actions, or future legal remedies for claims
against EMPLOYER are reserved by You,unless expressly waived in Section 9(a) of this
Agreement.
1"0, Affirmations.
a. You afiirrn that as of the date of this Agreement You have not filed caused to be filed, or
presently are a party to any claim, complaint, or action against EMPLOYER in; any forum
or form;
b; You acluiowledge that in the event You are hired in the future by EMPLOYER that
EMPLOYER may terminate Your employment at-witl and without notice,
G. You acknowledge that this Agreement does not limit either Party's right, where
applicable; to file or participate in an investigative proceeding of tiny federal, state or
local governmental agency; You acknowledge that nothing in this Agreement affects
Your rights under any ERISA plan, nor does it affect any legal rights that may arise after
the Effective Date.
C. NONADMISSION
This Agreement shall not be construed as an admission by You or EMPLOYER of any liability to each
other, breach of any agreement between EMPLOYER and Yourself, or violation of any statutes law; or
regulations nor shall it be construed as an admission or any deficient performance or violation of any
statute, law or regulation or professional obligation by You.
D. GOVERNING LA
This Agreement is governed by _laws of the Statea, Washington that apply to contracts executed
to be performed of Washington.
READINGSE.
Page 3 of 4
Kimberly Cole's Initials �
The headings in the Agreement are for convenience only and shall not affect the meaning of the terms as
set out in the text,
In any dispute involving this Agreement, each party shall be responsible for their own attorney's fees
and costs.
GSEVERABILITY
It is further understood and agreed that if any of the provisions of this Agreement are held to be invalid
or unenforceable, the remaining provisions shall nevertheless continue to be valid and enforceable.
H. EFFECT1W-, DATE
This Agreement shall become effective when it is signed by You and EMPLOYER.
1. COMPLETE AGREEMIENT
This Agreement represents and contains the entire understanding between the parties in connection with
the subject matter of this Agreement. It is expressly acknowledged and recognized by all parties that
there are no oral or written collate:ral agreements, understandings or representations between the parties
other than as contained in this document. Any modifications to this Agreement must be in writing and
signed by both parties to be effective.
J. COtNTERPARTJ
and each originally shall -fully bind each party who executed ic A facsimile copy of the signature may
be submitted as proof of'executi6n, but the original signature page shall be sent by U.S. Mail to the
EMPLOYER no later than three (3) days after signature.
ACCEPTANCE OF AGREEMENT
I agree and accept this Agreerneut, This Agreement is the final and complete expression of all Agreements
between me and EMPLOYER on all subjects and supersedes and replaces all prior discussions, representations,
agreements, policies, and practices. I acknowledge that I am not signing this Agreement relying on anything
not set out herein.
This Agreement consists of four (4) pages,
4—
Kim I -b¢,
Agreed by EMPLOYER
Mi e Cooper, Mayor,
a t c,
(I
Kimberly Cole's