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Ordinance No. 15,161 ORDINANCE NO. 15,161 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE SIXTH AMENDMENT TO THE AGREEMENT FOR PROFESSIONAL SERVICES AND EMPLOYMENT AS CITY MANAGER WITH RICHARD L. DAVIS; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ****************************************************************************** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the Mayor to execute and the City Clerk to attest to the Sixth Amendment to the Agreement for Professional Services and Employment as City Manager with Richard L. Davis. A copy of said amendment is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown on this the 281h day of July, 2022 B NDON CAPETILL , Mayor ATTEST: SNYTO yolI T eF� • V u o N ANGEL JACKSO qi N ? co a oe fig, o •e�` f� �•u�•.eeee APPROVED AS O RM: SCOTT LEM ND, City Attorney RAKaren AndersonlORDINANCES\2022\2022.07.28 CityManagerContractAmendmentOrdinance.docx Exhibit 'A' SIXTH AMENDMENT TO THE AGREEMENT FOR PROFESSIONAL SERVICES AND EMPLOYMENT AS CITY MANAGER STATE OF TEXAS § COUNTY OF HARRIS § This Sixth Amendment ("Sixth Amendment") to the Agreement for Professional Services and Employment as City Manager by and between the City of Baytown, Texas, a municipal corporation, and Richard L. Davis, effective as of July 1,2015 (the"Agreement"), is made by and between the same parties effective as of (the"Effective Date"). WITNESSETH: WHEREAS, the City of Baytown (the "City") and Richard L. Davis(the "Manager") entered into the Agreement for Professional Services and Employment as City Manager effective as of July 1, 2015; and WHEREAS, on August 15, 2017, the City and the Manager executed the First Amendment to the Agreement to revise the term and compensation set forth in the Agreement and to add a bonus provision thereto; and WHEREAS,on August 3,2018,the City and the Manager executed the Second Amendment to the Agreement to revise the term and compensation set forth in the Agreement and to add a bonus provision thereto; and WHEREAS, on August 5, 2019, the City and the Manager executed the Third Amendment to the Agreement to revise the term, compensation and severance set forth in the Agreement; and WHEREAS,on August 14,2020,the City and the Manager executed the Fourth Amendment to the Agreement to revise the duties,term, compensation and severance set forth in the Agreement; and WHEREAS, on July 23, 2021, the City and the Manager executed the Fifth Amendment to the Agreement to revise the duties,term, compensation and severance set forth in the Agreement; and WHEREAS, the City and the Manager desire to amend the Agreement to revise certain terms and conditions; NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: 1. Definitions. Unless a different meaning clearly appears from the context, words and phrases as used in this Fifth Amendment shall have the same meanings as in the Fourth Amendment,the Third Amendment, the Second Amendment,the First Amendment and the Agreement. 2. Amendments. a. Section 2 "Term," of the Agreement and all amendments thereto are hereby amended to read as follows: Section 2. Term. The term of this Agreement shall be from the Effective Date of this Sixth Amendment through January 3, 2023 (the"Term"). The Manager shall serve at the pleasure of the Council and at all times shall be considered an at-will employee regardless of any contrary provision contained herein. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the Council or the Manager to terminate the services of the Manager at any time, subject only to applicable provisions of the City Charter, City personnel policies and procedures, and the provisions set forth hereinafter in the section entitled"Termination." b. Section 10"Termination and Severance Pay"of the Agreement and all amendments thereto is hereby amended to read as follows: Section 10.Termination and Severance Pay. A. Termination at the end of the Term. Upon Termination of this Agreement at the end of the Term: (1) if Manager performs all the duties of the City Manager under this Agreement, then the City agrees to pay the Manager a lump sum cash payment equal to (i) twelve (12) months of salary and car allowance plus (ii) the value of all sick, holiday, and vacation leave, and all other benefits accrued by the Manager prior to the termination to which Manager may be entitled upon termination pursuant to the City's personnel policies and administrative rules. (2) the City Manager shall have the right to elect for continued coverage under the City of Baytown's medical plan at his own cost and expense for a period of eighteen(18)months from the date of resignation pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). If the City Manager so elects,the City agrees that it shall pay the same portion of the City Manager's premium as it did while the City Manager was an active employee of the City,plus the Manager's portion of the premium while the City Manager was an active employee of the City. It is expressly understood and agreed that the payments provided by the City in this paragraph will cease if and when the City Manager (i) fails to pay his portion of the premium to the City before the 10'h day of each month,(ii)becomes eligible to be covered by any other employer-provided group health insurance plan(s),or(iii)in any way becomes ineligible for COBRA continuation benefits. To this end, the City Manager agrees that he will have the responsibility and the obligation to report in writing to the City's Director of Human Resources within ten days of becoming eligible to be covered by another employer-provided group health insurance plan(s) that continued COBRA coverage is no longer necessary. Furthermore,it is expressly understood and agreed that Sixth Amendment to the Agreement for Professional Services and Employment as City Manager,Page 2 it is the City Manager's responsibility to pay any COBRA continuation premiums following exhaustion of the period in which the City has agreed to pay a portion of the premiums without further notification from the City should he be eligible for and desire COBRA continuation benefits thereafter. City Manager shall be responsible for any and all federal, state and local tax consequences that result from his receipt of this benefit from the City. B. Termination without Cause by City. The City Council may terminate this Agreement and Manager's services without cause during the Term; provided, however, (1) if Manager is then willing and able to perform all the duties of the City Manager under this Agreement, then the City agrees to pay the Manager a payment equal to (i) twelve (12) months of salary and car allowance plus (ii) the value of all sick, holiday, and vacation leave,and all other benefits accrued by the Manager prior to the termination to which Manager may be entitled upon termination pursuant to the City's personnel policies and administrative rules. This payment shall be made on either a lump-sum basis or an installment basis payable at the same time as other non-civil service employees of the City are paid, whichever is chosen by the Manager. (2) The City Manager shall have the right to elect for continued coverage under the City of Baytown's medical plan at his own cost and expense for a period of eighteen(18)months from the date of resignation pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). If the City Manager so elects,the City agrees that it shall pay the same portion of the City Manager's premium as it did while the City Manager was an active employee of the City. It is expressly understood and agreed that the payments provided by the City in this paragraph will cease if and when the City Manager (i) fails to pay his portion of the premium to the City before the 10`h day of each month, (ii) becomes eligible to be covered by any other employer-provided group health insurance plan(s), or (iii) in any way becomes ineligible for COBRA continuation benefits. To this end,the City Manager agrees that he will have the responsibility and the obligation to report in writing to the City's Director of Human Resources within ten days of becoming eligible to be covered by another employer-provided group health insurance plan(s) that continued COBRA coverage is no longer necessary. Furthermore, it is expressly understood and agreed that it is the City Manager's responsibility to pay any COBRA continuation premiums following exhaustion of the period in which the City has agreed to pay a portion of the premiums without further notification from the City should he be eligible for and desire COBRA continuation benefits thereafter. City Manager shall be responsible for any and Sixth Amendment to the Agreement for Professional Services and Employment as City Manager,Page 3 all federal, state and local tax consequences that result from his receipt of this benefit from the City. (3) The termination without cause will not become effective until the City Council has complied with Section 19 of the Charter. However, upon adoption of a removal resolution, Manager shall discontinue all services in connection with the performance of the Agreement unless otherwise directed by the City Council. C. Termination with Cause by City. The City Council may terminate this Agreement and Manager's services hereunder for cause for one or more of the following reasons: ➢ a conviction of a misdemeanor involving moral turpitude or personal gain; ➢ an indictment for a felony; ➢ insubordination or intentional failure to comply with lawful written Council directives; violating the Code of Ethics of the City, as such code now exists or may hereinafter be amended; or failure to comply with the City's personnel policy manual and administrative rules, if- such violation provides for disciplinary action, up to and including termination and termination, rather than progressive discipline, would be appropriate for a violation of the rule. If Manager is terminated for cause, then Manager shall be entitled to receive a lump sum cash payment equal to the value of all sick and vacation leave, holidays and other benefits accrued by, or credited to, the Manager prior to the termination to which Manager may be entitled upon termination pursuant to the City's personnel policies and administrative rules. If the cause of the termination is deemed invalid, in error, or insufficient for any reason,the parties agree that such termination will be deemed to be for convenience, shall be valid, and shall not be subject to challenge. The termination for cause will not become effective until the City Council has complied with Section 19 of the Charter. However,upon adoption of a removal resolution, Manager shall discontinue all services in connection with the performance of the Agreement unless otherwise directed by the City Council. D. Termination by Manager. In the event the Council,during the Term of this Agreement, ➢ reduces the authority of the Manager, Sixth Amendment to the Agreement for Professional Services and Employment as City Manager,Page 4 :1, reduces the salary or other financial benefits of Manager in a greater percentage than an applicable across-the-board reduction for all employees of the City, • e gre ➢ refuses to comply with any other provision benefiting the Manager herein, then the Manager may resign after thirty (30) days' written notice to the City Council and an opportunity to cure; and such resignation shall be deemed to have been a termination by the City without cause as of the date the resignation is submitted in writing to the Mayor. It is expressly understood and agreed that the suspension of the Manager with or without pay pending the resolution of any criminal charge filed against the Manager shall not constitute a termination or a reduction under this section. E. Resignation by Manager. If the Manager terminates this Agreement by voluntary resignation of the position of City Manager before the end of the Term, the Manager shall not be entitled to any cash payment equal to(i)twelve(12)months of salary and car allowance. Nor may the Manager elect for the City to pay the same portion of the City Manager's premium under the City of Baytown's medical plan as it did while the City Manager was an active employee of the City. Instead, the Manager shall only be eligible for such benefits accrued by the Manager prior to the termination to which Manager may be entitled upon termination pursuant to the City's personnel policies and administrative rules. The Manager shall give at least 30 days' written notice in advance unless the Council agrees otherwise. 3. Entire Agreement. The provisions of this Sixth Amendment, the Fifth Amendment, the Fourth Amendment, the Third Amendment, the Second Amendment, the First Amendment and the Agreement should be read together and construed as one agreement provided that, in the event of any conflict or inconsistency between the provisions of this Sixth Amendment and the provisions of the Fifth Amendment,the Fourth Amendment,the Third Amendment, the Second Amendment, the First Amendment,and the Agreement, the provisions of this Sixth Amendment shall control. 4. Interpretation. This Sixth Amendment has been jointly negotiated by the parties hereunder and shall not be construed against a party hereunder because that party may have assumed primary responsibility for the drafting of this Sixth Amendment. 5. Captions. Captions contained in the Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and this Sixth Amendment are for reference only and,therefore,have no effect in construing the documents. The captions are not restrictive of the subject matter of any section. Sixth Amendment to the Agreement for Professional Services and Employment as City Manager,Page 5 IN WITNESS WHEREOF, the parties hereto have executed this Sixth Amendment in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same amendment, this day of July 2022,the date of execution by the Mayor. CITY OF BAYTOWN BRANDON CAPETILLO, Mayor ATTEST: ANGELA JACKSON, City Clerk APPROVED AS TO FORM: SCOTT LEMOND, City Attorney AGREED AND ACCEPTED this the day of July,2022. MANAGER RICHARD L. DAVIS STATE OF TEXAS § COUNTY OF HARRIS § Before me, , the undersigned notary public, on this day personally appeared RICHARD L. DAVIS, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day of July, 2022. Notary Public in and for the State of Texas R;Scott.Contracts,2022.07.18 City Manager Sixth Amended Agreement-Changes Accepted Sixth Amendment to the Agreement for Professional Services and Employment as City Manager,Page 6