Opinion
No. 61959-4-I.
March 30, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-39916-1, Palmer Robinson, J., entered Jun e 25, 2008.
Affirmed by unpublished opinion per Agid, J., concurred in by Leach and Lau, JJ.
UNPUBLISHED OPINION
Former City of Seattle employees who worked at the Woodland Park Zoo appeal the dismissal of their claims against the City of Seattle (City). The employees claimed that when the Woodland Park Zoo Society (Zoo Society) took over management of the zoo and did not offer its employees a retirement plan comparable to the City's plan, the City breached its promise that they would remain in the City's pension plan unless the Zoo Society offered a comparable plan. Because the City made no promise to allow the employees to remain in the City's retirement system after the City zoo positions were eliminated and became Zoo Society positions, and because the employees were neither parties to nor third party beneficiaries of the agreement between the City and the Zoo Society to develop an employee transition plan, we affirm.
FACTS
From 1899 through 2003, the City operated the Woodland Park Zoo as part of the City Parks Department and Zoo employees were City employees. In the mid-1990s a Zoo Commission appointed by the mayor recommended that the nonprofit Zoo Society operate and manage the zoo. City leaders then worked to secure legislative authorization for nonprofit management of the zoo, and RCW 35.64.010 was enacted to provide that authorization.
Following this legislation, the City and the Zoo Society completed an Operations and Management Agreement (Management Agreement) subject to approval by the Seattle City Council (City Council). In December 2001, the City Council passed an ordinance authorizing the Superintendent of Parks and Recreation to enter into an agreement with the Zoo Society for operation and management of the zoo. That ordinance adopted the Management Agreement between the City and the Zoo Society, with modifications recommended by the Finance Committee.
Among other things, the Management Agreement addressed "Staffing and Employees," recognizing that
the Parties' intent is that the City Employees will be given the choice of electing Zoo-related employment with WPZS [the Zoo Society] or other employment within the City in so far as is practical and allowable under City rules, state, federal, and local laws and collective bargaining agreements.
The agreement also provided that the Zoo Society and the City Parks Department "will develop and propose an Employee Transition Plan and present it to the City Council by December 31, 2002." Section 18.4 of the agreement further provided:
The proposed Employee Transition Plan will be accompanied by one or more proposed ordinances to implementing [sic] elements of the Employee Transition Plan that require such City Council action and to amending [sic] this Agreement accordingly. Although City Employees may voluntarily resign City employment and be hired by WPZS, no City position existing in the "Zoo Program" in the City's Adopted Budget as of the Effective Date of this Agreement will be eliminated nor an employee involuntarily transferred to WPZS from these positions unless the change is adopted by the City Council by ordinance(s) described above.
Under section 18.4.2, titled "City Employees Subject to Collective Bargaining Agreements," the agreement provided:
It is the intention of the Parties, subject to the Employee Transition Plan, that City employment positions at the Zoo subject to collective bargaining agreements shall become WPZS positions when: a) the position can remain a represented position under a collective bargaining agreement between WPZS and the union which represented such position under City employment; and b) WPZS can demonstrate that WPZS can offer employee benefits (including retirement benefits) that are comparable to City benefits.
The agreement further provided that the Employee Transition Plan "shall have provisions for the carryover of certain benefits for those employees who move from City to Zoo employment," including pensions, and that the Employee Transition Plan "shall address the means and the financial transactions for recognizing City Employee pension benefits." Specifically, section 18.5.3 of the agreement provided:
The Parties intend that City Employees who transition to employment with WPZS shall be credited by WPZS with their full retirement benefits they earned with the City. The Parties further intend that the City will pay to WPZS the present actuarial value of each employee's retirement benefit upon transition so that WPZS can offer roughly equivalent retirement benefits to transitioning employees.
The agreement also addressed payroll before the transition, providing that: "Until each City Employee leaves City employment, either to transition to WPZS employment or otherwise, that employee will remain on the City payroll for the continued provision of City compensation and benefits." Finally, the agreement specified that "[t]here are no third party beneficiaries to this Agreement."
The Management Agreement was approved by ordinance in December 2002. The City Council then enacted a series of ordinances to implement provisions of the agreement and transition City employees to employment with the Zoo Society. One of those ordinances was Seattle Ordinance 120921, which addressed the Management Agreement's provision that the Employee Transition Plan provide "a means for transferring the value of the pension benefits of Zoo employees who transition to Zoo Society employment." That ordinance allowed zoo employees transitioning to Zoo Society employment to obtain a lump sum payout of both the employee's and the City's contributions to the City's retirement system.
Another ordinance, Seattle Ordinance 120922, established an incentive program for eligible employees of the City's zoo program who transitioned to Zoo Society employment. The incentive program included providing these employees with a payment equivalent to eight weeks' pay and other benefits. The ordinance also authorized the City to enter into an agreement between the City and the zoo employees' unions that recognized, among other things, that employees would have the discretion to withdraw from the City's retirement system and receive a lump sum payout. The employees had until November 18, 2002, to choose to participate in the incentive program. After passing these ordinances, the City passed Ordinance 12100, which abrogated or eliminated each City position in the zoo program as it became vacant on or after December 31, 2002.
In December 2002, the City and the Zoo Society submitted to the City Council the Employee Transition Plan. The transition plan addressed retirement benefits as follows:
The section 18.5.3 of zoo operations and management agreement contemplated an opportunity for City zoo employees to transfer to the Zoo Society's retirement plan both their pension plan contributions and the City's contributions in a manner that was neutral for both the employees and the City Retirement System. Subsequent work by the Retirement System actuary and legal counsel determined that allowing employees to transfer their contribution and the City's contribution would not actuarially harm the system. These findings provided the basis for including the opportunity for transitioning employees to roll over both their and the City's pension contributions as part of the Zoo Separation Incentive Program adopted by the City Council on September 16[,] 2002.
The transition plan further provided that zoo employees could choose to:
A) retire (if eligible) B) Retire and go to work for the Zoo Society C) Vest in the City Retirement System, resign and go to work for the Zoo Society, D) Resign and transfer both their contribution and the City's contribution to another retirement vehicle (including the Society's) and go to work for the Society, E) Resign and take both contributions as lump sum payments
The transition plan also noted that the Zoo Society considered the option of creating a defined benefit retirement plan, but after discussions with labor unions, plan administrators, and actuaries, "it proved impossible to develop a cost effective plan that provided a defined benefit comparable to the City's pension plan." Instead, the Zoo Society chose an alternative 403(b) defined contribution plan in which the Zoo Society matches an employee contribution up to six percent.
In April 2003, the City passed Seattle Ordinance 121125, which finalized zoo employees' transition from City employment. The ordinance addressed City employees, including the plaintiffs, who at that time still held City positions in the zoo program. The ordinance allowed these employees to separate from employment with the City under similar terms that zoo employees left under the zoo incentive program. They did not receive eight weeks of incentive pay, but could withdraw the City's contribution to their pension fund. The ordinance also provided that all City zoo positions would be eliminated by December 21, 2004.
Judy Sievert and the other plaintiff employees elected not to participate in the incentive program in 2002. Instead, they wrote letters to the City Council complaining that the incentive program was being offered before they knew what their benefits would be under the Employee Transition Plan. In these letters, they stated that they were unsure whether they would be allowed to remain City employees until they retired and expressed concern that the City would not provide matching retirement funds or transfer accrued vacation and sick leave at the end of the transition period. They also asked the City Council how long they could remain City employees at the zoo and whether the City Council would approve an employee transition program that was inferior to the incentive program. After the incentive program expired, the plaintiffs continued to lobby City Council members to allow those employees who had not participated in the incentive program to remain City employees until 2007. They contended that the incentive program benefited those who were beginning or ending their careers but not those like the plaintiffs who were in the middle of their careers.
After the Zoo Society presented the Employee Transition Plan, Sievert sent more letters on behalf of employees who had not accepted the incentive program, requesting that the City Council extend their City employment until December 2007. In October 2004, the 10 plaintiffs (who were the last to terminate their City employment and become Zoo Society employees) received letters from the City informing them that their positions would be abrogated and that they would be laid off effective December 31, 2004. They had the option of accepting layoff, resigning, or accepting Zoo Society employment. If they chose employment with the Zoo Society, they could transfer sick leave and vacation balances and withdraw the actuarial value of their retirement accounts from the City's retirement system. All of them chose Zoo Society employment and became employees of Zoo Society. As Zoo Society employees, their pay and benefits remained the same except that they no longer earned the City pensions to which they were entitled as City employees.
The employees sued the City, seeking damages and reinstatement in the City pension plan. Among other things, they claimed that the City breached its promise to City zoo employees that they would remain in the City's pension plan unless the Zoo Society had a plan comparable to the City's, and that the City violated the zoo employees' vested pension rights by abrogating their positions from the City's payroll, transitioning them to the Zoo Society's payroll, and denying them a City pension when they continued to perform the same work they did for the City. The employees moved for partial summary judgment on liability, but the trial court denied the motion. The City then moved for summary judgment, requesting dismissal of the claims. The trial court granted the motion and dismissed the claims.
They also alleged that they were wrongfully discharged and transferred to the Zoo Society's payroll in violation of RCW 35.64.010, but the trial court dismissed these claims on the City's motion for summary judgment. The employees do not appeal this ruling.
DISCUSSION
The employees contend dismissal of their claims was error because the Management Agreement established that the City promised the zoo employees would remain in the City's pension plan if the Zoo Society did not offer a comparable plan. They argue this promise created a vested pension right not subject to revocation when they continued to work after the promise was made. Alternatively, the employees argue the trial court erred by granting summary judgment for the City because it failed to demonstrate that undisputed facts supported its position.
We review summary judgment orders de novo and engage in the same inquiry as the trial court. We will affirm a summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
The employees assert that the City promised them they could remain in the City's pension plan if the Zoo Society did not offer a comparable plan, relying on the following language in the Management Agreement:
It is the intention of the Parties, subject to the Employee Transition Plan, that City employment positions at the Zoo . . . shall become WPZS positions when . . . WPZS can demonstrate that WPZS can offer employee benefits (including retirement benefits) that are comparable to City benefits.
. . . .
. . . The Parties intend that City Employees who transition to employment with WPZS shall be credited by WPZS with their full retirement benefits they earned with the City. The Parties further intend that the City will pay to WPZS the present actuarial value of each employee's retirement benefit upon transition so that WPZS can offer roughly equivalent retirement benefits to transitioning employees.
The employees contend that by these statements, the City promised them a comparable pension plan and this promise gave them a vested right in the pension plan that was not subject to revocation or modification. But if no promise was made, as the City contends, the employees' arguments that they had irrevocable vested pension rights are unsupported. Thus, we must first decide whether the City made the "pension promise" the employees claim it made.
"A promise is `a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.'" "But an intention to do a thing is not a promise to do it." Thus, courts should take "great care" not to construe the conduct or declarations of a party as proposals when they are intended only as preliminary negotiations. An agreement for an agreement, or "`an agreement to do something which requires a further meeting of the minds of the parties and without which it would not be complete'" is unenforceable. The fact that the parties do intend to make a subsequent agreement "`is strong evidence to show that they do not intend the previous negotiations to amount to any proposal or acceptance.'"
Havens v. C D Plastics, Inc., 124 Wn.2d 158, 172, 876 P.2d 435 (1994) (quoting Restatement (Second) of Contracts § 2(1)).
Meissner v. Simpson Timber Co., 69 Wn.2d 949, 957, 421 P.2d 674 (1966).
Pac. Cascade Corp. v. Nimmer, 25 Wn. App. 552, 556, 608 P.2d 266, review denied, 93 Wn.2d 1030 (1980).
Keystone Land Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 175-76, 94 P.3d 945 (2004) (quoting Sandeman v. Sayres, 50 Wn.2d 539, 541-42, 314 P.2d 428 (1957)).
Nimmer, 25 Wn. App. at 556 (quoting Coleman v. St. Paul Tacoma Lumber Co., 110 Wash. 259, 272, 188 P. 532 (1920)).
In Sandeman v. Sayres, the court held that an employment contract offering to pay a commission and/or a bonus to the employee at a later date was an agreement for an agreement and therefore unenforceable. The court concluded that although the contract language amounted to an offer to pay the employee the bonus/commission, because it was to be decided on a later date, "[i]t required a further meeting of the minds of the parties before it would become a complete and enforceable agreement to pay a commission and/or bonus." In Pacific Cascade Corp. v. Nimmer, the court held that a promise to lease property was not formed when the parties' correspondence evidenced their intentions but not a binding agreement. The court reiterated that an intention to do something is not a promise to do it: "[i]t is evidence of a future contractual intent, not the present contractual intent essential to an operative offer." Similarly, in Keystone Land Development Co. v. Xerox Corp., the court held that an intent to negotiate did not constitute an enforceable contract. The court concluded that by expressly referring to a future binding agreement, Xerox simply manifested an intent to negotiate, and its statements were an objective manifestation of its intent not to be bound.
50 Wn.2d 539, 541-42, 314 P.2d 428 (1957).
Id. at 542.
25 Wn. App. 552, 556, 608 P.2d 266, review denied, 93 Wn.2d 1030 (1980).
Id.
152 Wn.2d 171, 179, 94 P.3d 945 (2004).
Id.
Here, the Management Agreement expressed the intent of the City and the Zoo Society that "City employment positions at the Zoo . . . shall become WPZS positions when . . . WPZS can demonstrate that WPZS can offer employee benefits (including retirement benefits) that are comparable to City benefits." But it also specified that this intent was "subject to" the final transition plan that was yet to be developed. Thus, this expression of intent does not create an enforceable promise by the City to provide City pension benefits. Rather, it expresses the intent to incorporate these or similar provisions in the transition plan and clearly contemplates a future "meeting of the minds" in the form of the final, completed, and approved transition plan. Also, by using vague terms like "comparable" or "roughly equivalent," these statements of intent are not sufficiently definite to encompass the final terms of the employment benefits to be conferred and do not create an enforceable promise.
See id.
As further support for their argument that the Management Agreement obligated the City to keep zoo employees in the City retirement system when the Zoo Society failed to offer a comparable plan, the employees cite to section 18.4 of the Management Agreement which states:
The proposed Employee Transition Plan will be accompanied by one or more proposed ordinances to implementing [sic] elements of the Employee Transition Plan that require City Council action and to amending [sic] this Agreement accordingly. Although City Employees may voluntarily resign City employment and be hired by WPZS, no City position existing in the "Zoo Program" in the City's Adopted Budget as of the Effective Date of this Agreement will be eliminated nor an employee involuntarily transferred to WPZS from these positions unless the change is adopted by the City Council by ordinance(s) described above.
The employees contend that this section was added to clarify that City employees would remain in City employment if the Zoo Society did not have a plan comparable to the City's. They cite to Finance Committee notes relating to this section of the Management Agreement which state:
This section ensures that no city employees will be transferred to Zoo Society management without City Council approval. The Society must produce and the City Council must approve an employee transition plan by ordinance. The Society must provide a comparable pension and benefit plan. If the plan does not meet those standards then City employees would remain in City employment.
While these statements do provide a reason for adding section 18.4 of the Management Agreement, they are not in themselves the actual terms of the agreement. This expressed intent — to keep City employees in City employment if the Zoo Society failed to provide a comparable plan — was not included in the actual terms of the Management Agreement, indicating that this was not the final intent of that section. Rather, that section of the Management Agreement simply states that no City position in the zoo program will be eliminated nor an employee involuntarily transferred to the Zoo Society from these positions "unless the change is adopted by the City Council by ordinance(s)." Thus, at most, this section recognized that the transfer of zoo positions to Zoo Society management was subject to City Council approval by ordinance. The Finance Committee notes were no more than an expressed intent of the Management Agreement, and a further step removed, an expressed intent of the outcome of the transition plan. As discussed above, statements of intent that contemplate a future agreement cannot create an enforceable promise.
Because they cannot establish that an actual pension promise was made, there is no basis for the employees' argument that they had a vested pension right and/or a unilateral contract for pension benefits that could not be revoked when they worked after that promise was made. The cases upon which the employees rely in support of this argument all involved pension benefits that had in fact been promised and conferred. They held that once the employees continued to work after the benefit was conferred, the employer's promise was irrevocable.
The premise on which these cases were based is absent here. For example, in Bakenhus v. City of Seattle, the court held that it was illegal to change the pension benefits that were in place when a public employee was hired because the pension rights were contractual. Similarly, in Navlet v. Port of Seattle, the court held that retirement benefits conferred through collective bargaining are compensatory and therefore vest at the time they are created and will survive the expiration of the collective bargaining agreement.
48 Wn.2d 695, 701, 296 P.2d 536 (1956).
164 Wn.2d 818, 841, 194 P.3d 221 (2008).
But here, there was no change in pension rights created by contract. Rather, zoo employees' City pension plans terminated when the City Council acted to terminate positions, and the type of retirement benefit they would receive in Zoo Society positions had yet to be determined. Unlike in Navlet, where the retirement benefit was negotiated through the collective bargaining process as compensation for the employees' work, the Management Agreement was not a bargaining agreement between employees and zoo management to negotiate compensation. In fact, as the City points out, the unions here accepted the later Employee Transition Plan without protest.
Nor does Sethre v. Washington Education Association require a different result. There, employees of the Washington Education Association (WEA) participated in WEA's retirement plan, which had a stated purpose of providing retirement benefits that were the same as or similar to those provided by the state Teachers Retirement System (TRA). But when the TRA increased its pension benefit, WEA changed its policy statement to indicate that its plan was not intended to parallel the TRA plan and that it would not revise its plan in response to future changes to the TRA. The plaintiff employees left WEA employment before retirement age, but left their accumulated pension benefits in WEA's retirement plan. WEA told them that their retirement benefits would be calculated with the benefit formula in effect at the time of their terminations, which was before TRA increased its benefit, rather than at the date of retirement, which was after the TRA increased the benefit. The employees argued that they were entitled to the same retirement benefits provided by the TRA, contending that WEA's established policy of being consistent with the public retirement system as stated in the preambles of their pension agreements is a binding term of the agreements overriding the precise terms in the operative parts of those agreements. The court concluded that the language in the pension agreement preamble stated a promise, explaining that the employees were assured in the opening paragraph of each agreement, except the last one, that their pensions would be substantially the same as those received by public school teachers, and that only later on in the contract did the contrary provisions appear.
22 Wn. App. 666, 591 P.2d 838, review denied, 92 Wn.2d 1020 (1979).
Id. at 668.
Id. at 669.
Id.
Id. at 669-70.
Id. at 670.
The employees here argue that likewise, the Management Agreement's statements of intent about the transition plan amount to a promise to provide a pension plan comparable to the City's and override the contrary provisions of the final transition plan. But the alleged promise in the Management Agreement to provide comparable retirement benefits was not part of a private pension plan that created a contractual obligation by the employer to provide benefits to its employees. Rather, it was part of an agreement between two employers stating their intent to provide certain employee benefits when they developed a transition plan for employees transferring from one employer to the other. Unlike the pension plan in Sethre, the Management Agreement did not establish the terms of the benefits or serve as a contract for employee benefits. Thus, the Management Agreement's statements of intent about the transition plan did not override the operative terms of the transition plan itself, which had yet to be determined.
The City further argues that even if the Management Agreement created a promise by the City to allow zoo employees to remain in the City's pension plan if the Zoo Society did not offer a comparable plan, the employees could not enforce this promise because they were neither parties to the Management Agreement nor third party beneficiaries. The City first contends that any obligation to provide particular retirement benefits required by the Management Agreement would rest on the Zoo Society, not the City. The employees argue that the Management Agreement created a promise "by the City to provide benefits `roughly equivalent' to the City's plan and would fully credit the [employees'] prior City service so that pensions would continue."
But the provision upon which the employees rely addresses the parties' intent that transitioning employees "shall be credited by WPZS with their full retirement benefits they earned with the City," and that "the City will pay to WPZS the present actuarial value of each employee's retirement benefit upon transition so that WPZS can offer roughly equivalent retirement benefits to transitioning employees." Assuming the Management Agreement obligated any party to provide benefits, this language would clearly place that obligation on the Zoo Society, not the City. Additionally, as the City points out, this statement was a financial commitment the City made to the Zoo Society so that the Zoo Society could provide benefits to its employees; it was not an agreement by the City to keep zoo employees in the City retirement plan if the Zoo Society benefits were not comparable. Finally, we note that the City could not have been making any promises directly to the employees because they were represented by a union that had to (and did) sign off on the agreement. Had it engaged in collective bargaining without the union, the City would have committed an unfair labor practice.
(Emphasis added.)
The City further contends that by the Management Agreement's express terms, the employees were not third party beneficiaries of the agreement. The Management Agreement contains a section addressing "Successors and Assigns" which states:
The terms, covenants and conditions contained in this Agreement shall bind and inure to the benefit of the City and WPZS and, except as otherwise provided herein, their personal representatives and successors and assigns. There are no third party beneficiaries to this Agreement.
As the City asserts, parties to a contract are generally presumed to contract for their own benefit, not for that of a third party, and a specific provision in a contract stating that there are no third party beneficiaries should be enforced.
See Burke Thomas, Inc. v. Int'l Org. of Masters, Mates Pilots, 92 Wn.2d 762, 767, 600 P.2d 1282 (1979); Haselwood v. Bremerton Ice Arena, Inc., 137 Wn. App. 872, 890, 155 P.3d 952 (2007), review granted, 163 Wn.2d 1017 (2008).
The employees contend that the third party beneficiary clause does not prevent them from enforcing the agreement because (1) a public employer's pension promises are irrevocable vested rights, (2) they are intended beneficiaries directly benefitting from the Management Agreement, and (3) the third party beneficiary clause was not conspicuous, clearly communicated, or consistent with the City's other representations in the agreement. The employees' first two arguments again rest on the faulty assumption that a pension promise was in fact made. While they are correct that an employee may enforce a pension right directly against an employer, they have failed to demonstrate that the City conferred such a right here.
The employees argue that by continuing to work for the City and rejecting the City's severance package, they accepted the City's offer to keep them in the City's retirement plan as City employees supervised by the Zoo Society. But as discussed above, no such offer was ever made, and the only final agreement about conferring employee benefits was in the approved Employee Transition Plan. That plan, submitted by the City and the Zoo Society and approved by ordinance as required by the Management Agreement, did not confer any City retirement benefits on the zoo employees once their City positions were terminated. Rather, the plan provided that the City positions would be terminated by a certain date and upon termination, zoo employees had certain choices available to them, none of which was to remain in the City retirement plan. In fact, as the City points out, the employees' lobbying to remain in the City's pension plan demonstrates that they knew the terms of their employment benefits would not be determined until the final transition plan was approved.
The employees further argue that the third party beneficiary clause is invalid because it does not clearly state that the specific pension promise to City employees is overridden by this disclaimer. They argue that this general disclaimer was not clear, conspicuous, or prominently displayed at the front of the document and was never communicated to them. They cite to Swanson v. Liquid Air Corp., where the court invalidated an employer disclaimer that revoked promises directly benefitting employees. They also rely on their statements that they believed the Management Agreement promised they would remain City employees unless the Zoo Society offered a comparable retirement benefit and their later reliance on that promise when they rejected the City's severance package offer.
118 Wn.2d 512, 826 P.2d 664 (1992) (invalidating disclaimer in an employee handbook that revoked any assurances of job security).
But again, the employees' argument assumes that a benefit was conferred or a promise was made, which as discussed above, has not been established. And unlike in Swanson, where the disclaimer was buried in an employee handbook that directly communicated employment terms to the employees, the Management Agreement was not intended to communicate to employees the terms of their employment. Rather, it was an agreement between two employers to develop a transition plan that would include providing comparable benefits to transitioning employees. Thus, the Swanson disclaimer analysis does not apply here.
The employees argue in the alternative that the trial court erred by granting summary judgment for the City because the City failed to meet its initial burden of establishing that no material facts are in dispute on the issue of the adequacy of the third party beneficiary disclaimer. They contend that the City put forth no evidence that the disclaimer was sufficiently conspicuous, understandable, and adequately communicated to the zoo employees. In fact, they contend that the undisputed evidence shows precisely the opposite, pointing to the employee statements that they believed they could rely on the City's assurances in the Management Agreement and relied on these assurances by rejecting the severance package.
But as discussed above, the factual issue of whether the disclaimer was clear and conspicuous is not material here because there was no benefit promised and the Management Agreement is a contract between the City and the Zoo Society, not a direct communication to employees about the terms of employment. Rather, the issue of whether the third party beneficiary clause should be given effect is a legal question that can be resolved by considering the Management Agreement itself, the ordinances passed as a result of the agreement, and the plaintiff employees' actions after the agreement was made, all of which are facts not in dispute. The trial court did not err by granting summary judgment on this issue.
Finally, the employees request attorney fees on appeal based on RCW 49.48.030 which provides for fees to an employee who obtains judgment for wages or salary, including pension benefits. Because we affirm the trial court's summary judgment orders, the employees are not entitled to fees.
We affirm.