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Ordinance No. 12,871ORDINANCE NO. 12, 871 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AN AGREEMENT FOR PROFESSIONAL SERVICES AND EMPLOYMENT AS CITY MANAGER WITH RICK 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 an Agreement for Professional Services and Employment as City Manager with Rick Davis. Said agreement shall be substantially the same as attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. The Mayor is authorized to further negotiate the agreement, if necessary, and to make changes to the same so long as the terms and conditions are substantially similar to those in the attached document. 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 City of Baytown on this the 14`h day of May, 2015. S AT/'PEST: LETICIA BRYSCH, Ci Clerk; APPROVED AS TO FORM: 4AaClOgiRfAMIREZ, SR., City orney of the City Council of the CARLOS, Mayor Exhibit "A" AGREEMENT FOR PROFESSIONAL SERVICES AND EMPLOYMENT AS CITY MANAGER This Agreement for Professional Services and Employment as City Manager (this "Agreement "), is made and entered into effective as of this the 1St day of July, 2015 (the "Effective Date "), by and between the City of Baytown, Texas, a municipal corporation (the "City "), and Rick Davis (the "Manager "), to establish and set forth the terms and conditions of the employment of the Manager as the City Manager of the City. WITNESSETH: WHEREAS, the City Council of the City of Baytown (the "Council ") and the Manager believe that employment agreements negotiated between City Councils and City Managers can be mutually beneficial to the city organization, the city manager, and the community they serve; and WHEREAS, when appropriately structured, the City Council and Manager believe employment agreements can strengthen the Council- Manager relationship by enhancing the excellence and continuity of the management of the City for the benefit of its citizens; and WHEREAS, the City Council and the Manager believe it is important to thoughtfully consider guidelines that will: ➢ be consistent with both the letter and the spirit of State law and, to the extent applicable, the City's charter and personnel policies; ➢ uphold the principle of "serving at the pleasure of the Council "; ➢ clearly define and incorporate the benefits to the community and City organization; and ➢ address the protection of the Manager and his family through provisions that are reasonable in nature and scope when compared to professional practices and local/regional market conditions and appropriately funded within the City's budget; and WHEREAS, the City desires to employ the services of the Manager as the City Manager of the City, pursuant to the terms, conditions and provisions of this Agreement; and WHEREAS, it is the desire of the Council, to provide compensation and benefits, establish conditions of employment for, and to set the working conditions of, the Manager as provided in this Agreement; and WHEREAS, the Council desires to retain the services of the Manager, to provide inducements for the Manager to remain in such employment, to encourage full work productivity by assuring the Manager's morale and peace of mind with respect to future security, and to provide a proper means for termination, resignation, or retirement of the Manager; and Agreement for Professional Services and Employment as City Manager, Page 1 WHEREAS, except as otherwise specifically provided herein, the Manager shall have and be eligible for the same benefits as are provided to all non -civil service employees of the City; and WHEREAS, the Manager has agreed to accept employment as the City Manager of the City, subject to and on the terms, conditions, and provisions agreed to and set forth in this Agreement; NOW, THEREFORE, in consideration of Manager accepting employment with the City, and other good and valuable consideration, including the mutual covenants herein contained, the City and the Manager hereby contract, covenant, and agree as follows: Section 1. Duties. A. The Council hereby employs for an indefinite term the Manager as the chief administrative officer of the City to perform the duties and functions specified (i) in Article III of the Charter, (ii) in this Agreement, and (iii) by the Council consistent with the intent of this Agreement. B. The Manager shall be subject to a performance review for his first six months of service to the City and thereafter he shall be subject to performance reviews annually or at some other interval as deemed appropriate by the City Council. The performance reviews shall be in accordance with criteria developed by the City Council in consultation with the Manager. The City Council in consultation with the Manager may revise such criteria from time to time as it deems appropriate for the proper operations of the City and the attainment of the City Council's objectives. The annual performance reviews will include a review and possible adjustment of compensation along with a possible extension of the Term. It is expressly understood and agreed that so long as Manager receives a satisfactory performance review, he shall be entitled to same across - the -board adjustment in compensation given to all other non -civil service employees of the City, if any. Section 2. Term. The term of this Agreement shall be three (3) years from the Effective Date and shall remain in full force and effect during such term unless terminated by the Manager or the Council as herein provided (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." Agreement for Professional Services and Employment as City Manager, Page 2 Section 3. Salary. The City agrees to pay the Manager an annual base salary, which salary shall initially be TWO HUNDRED EIGHT THOUSAND AND NO /100 DOLLARS ($208,000.00), payable in installments at the same time as other non -civil service employees of the City are paid. The Council further agrees to review the base salary and other benefits of the Manager at the same intervals as it reviews the salaries and benefits of other non -civil service City employees. Section 4. Benefits. All provisions of the rules and regulations of the City applicable to fringe benefits, including, but not limited to, health and life insurance, disability and retirement benefits, vacation and sick leave, and working conditions as they now exist or hereafter may be amended, shall also apply to the Manager as they apply to all other employees of the City. Additionally, the Manager shall accrue one additional vacation day (8 hours) per month of service to the City for twelve (12) months commencing on the Effective Date and ending June 30, 2016. In recognition of the managerial experience of Manager, vacation leave shall be calculated and granted to the Manager in accordance with the City's regulations utilizing the equivalent tenure of an employee with seven (7) years of service to City. The use of sick leave and vacation leave shall be subject to the prior approval of the Mayor or his designee Section 5. Vehicle Allowance Manager shall receive an automobile allowance of FOUR HUNDRED FIFTY AND NO /100 DOLLARS ($450.00) per month. Manager will provide and maintain a modern, functional vehicle, to include fuel, maintenance and insurance, for all transportation needed in the performance of his duties within Harris and any contiguous county. For work - related trips beyond that territory, Manager may request reimbursement for mileage in accordance with the City's travel policy. Section 6. Moving Costs Manager shall, in a reasonably expeditious manner, establish and maintain residency within the corporate limits of the City during the period of this Agreement and throughout his tenure as City Manager of the City of Baytown. The City agrees to reimburse the cost of moving City Manager's household goods and effects from West Jordan, Utah, to Baytown, Texas. City Manager will obtain three (3) bids from reputable moving firms and City Manager and City may select the moving firm of choice, with City reserving the option to select the lowest responsible bidder. Reimbursement for moving costs will not exceed FIFTEEN THOUSAND AND NO /100 DOLLARS ($15,000.00). To facilitate the earliest possible reporting date, City agrees to provide a temporary housing allowance to Manager in an amount not to exceed ONE THOUSAND FIVE HUNDRED AND NO /100 DOLLARS ($1,500.00) per month, for up to six (6) months. All payments will be handled in accordance with relevant state and federal tax regulations. In the event that Manager voluntarily resigns as City Manager of the City of Baytown before he completes three years of service to the City, Manager shall repay the City a pro rata amount based upon the following formula: (Actual Moving Expenses Paid + Temporary Housing Allowance Paid) Number of Months Remaining to 36 Months X Complete 36 Months of Service Agreement for Professional Services and Employment as City Manager, Page 3 Section 7. Professional and Civic Development. The City shall endeavor to budget and pay for the civic and professional membership dues and subscriptions of Manager necessary for the Manager's continuation and/or participation in ICMA, TCMA, TML and one (1) civic organization within the City for the Manager's continued professional participation, growth and advancement, and for the good of the City, as determined and approved by the Council. Developing and maintaining professional association contacts and standing provide the City access to valuable resources, and the reasonable participation and related travel by Manager as provided for in the annual budget will be a part of the Manager's duties. Section 8. Business Expenses. Certain expenses of a non - personal and job - related nature will necessarily be incurred by the Manager in the performance of the Manager's duties. The City will pay or reimburse such business expenses in accordance with the City's travel policy and as provided in the annual budget. City will furnish Manager a cellular telephone and portable computer to facilitate the conduct of his duties as City Manager. The City will also pay the full cost of any bond, if any is required by the City to be made by the Manager. Section 9. Hours of Work. It is recognized that the Manager is expected to engage in the hours of work that are necessary to fulfill the obligations of the position, and must devote a great deal of time outside the normal office hours to the business of the City. The Manager acknowledges that the proper performance of the duties of the City Manager of the City will require the Manager to generally observe normal business hours and will also often require the performance of necessary services outside of normal business hours. The Manager agrees to devote such additional time as is necessary for the full and proper performance of the Manager's duties and that the compensation herein provided includes compensation for the performance of all such services. However, the City intends that reasonable time off be permitted the Manager, such as is customary for exempt employees so long as the time off does not interfere with the normal conduct of the office of the City Manager. The Manager will devote full -time and effort to the performance of the duties of the City Manager of the City, and shall remain in the exclusive employ of the City during the Term of this Agreement; provided that, with the prior consent of the Council, the Manager may accept temporary, outside employment which will not in any way limit the performance of, or the Manager's availability for the performance of the Manager's duties hereunder. The term "outside employment" shall be construed to include, but not be limited to, occasional teaching, writing or consulting performed on the Manager's time off. Section 10. Termination and Severance Pay. A. Termination without Cause by City. The City Council may terminate this Agreement and Manager's services without cause during the Term; provided, however, if Manager is then willing and able to perform all the duties of the City Agreement for Professional Services and Employment as City Manager, Page 4 Manager under this Agreement and Manager has performed such duties for at least one (1) full year, then, in that event, the City agrees to pay the Manager a lump sum cash payment equal to (i) six (6) months of salary and auto allowance, plus (ii) one (1) month of additional salary and auto allowance for each full year of employment after the first full year plus (iii) the value of all sick and vacation leave 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 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. B. 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; ➢ making application for or otherwise seeking employment with an employer, other than the City of Baytown, prior to June 30, 2016; ➢ uncorrected, unsatisfactory job performance as determined at the sole discretion of the City Council based upon Manager's performance reviews; ➢ violating the Codes of Ethics of the City, the International City /County Management Association, and/or the Texas City Management Association, as such codes now exist or may hereinafter be amended; or y failure to comply with the City's personnel policy manual and administrative rules, if: o such violation provides for disciplinary action, up to and including tennination and o 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 Agreement for Professional Services and Employment as City Manager, Page 5 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. C. Termination by Manager. In the event the Council, during the Term of this Agreement, y reduces the authority of the Manager, ➢ 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, or ➢ refuses to comply with any other provision benefiting the Manager herein, then in that event, the Manager may, after thirty (30) days' written notice to the City Council and an opportunity to cure, resign and such resignation shall be deemed to have been a termination by the City without cause as of the date of the resignation. 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. D. Resignation by Manager. If the Manager terminates this Agreement by voluntary resignation of the position of City Manager, the Manager shall give at least 30 days' written notice in advance unless the Council agrees otherwise. Section 11. Notices. All notices, demands, and other writings may be delivered by either party hereto to the other by United States Mail, or by a reliable commercial courier at the following address: (1) City: Mayor, P.O. Box 424, Baytown, Texas 77522. (2) Manager: City Manager, P.O. Box 424, Baytown, Texas 77522. Alternatively, notices required pursuant to this Agreement may be personally served in the same manner as specified in Rule 21 a of the Texas Rules of Civil Procedure. Notice shall be deemed given as of the date of personal service, or three (3) days after the date the notice is properly addressed and deposited in the United States Mail or delivered to a commercial courier. Section 12. Conflict of Interest Prohibition. In addition to complying with the conflict of interest provision contained in the Charter, the Code of Ordinances, as well as the Texas Local Government Code, the Manager shall not, during the Term of this Agreement, individually, as a partner, joint venture, officer or shareholder, invest or participate in any business venture conducting business in the corporate limits of the City, except for stock ownership in a company whose capital stock is publicly held and regularly traded on any stock exchange, without the prior written approval of the Council. For and during the Term of the Agreement, the Manager shall not, except for a personal residence or residential property Agreement for Professional Services and Employment as City Manager, Page 6 acquired or held for future use as the Manager's personal residence, invest in any other real estate or property improvements within the City, without the prior written consent of the Council. Section 13. Appropriations. At all times during the Term hereof, the Council will endeavor to appropriate, set aside, and encumber, available and unappropriated funds of the City in an amount sufficient to fund and pay all financial obligations of the City pursuant to this Agreement, including, but not limited to, the severance pay, salary and benefits set forth and described herein. The failure to do so shall not be deemed a breach of this Agreement. Section 14. General Provisions. A. Section Headings. All section headings contained herein are for the convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. B. Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Texas. Venue shall lie exclusively in Harris County, Texas. C. Severability. In the event any one or more of the sections, provisions or clauses contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. D. Entire Agreement. This Agreement incorporates all the agreements, covenants and understandings between the City and the Manager concerning the subject matter hereof, and all such covenants, agreements and understandings have been merged into this written agreement. No other prior agreements or understandings, verbal or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. E. Amendment. This Agreement shall not be modified or amended except by a written instrument executed by the Manager and the duly authorized representative of the Council. F. Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. G. Non - waiver. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce, by an appropriate remedy, strict Agreement for Professional Services and Employment as City Manager, Page 7 compliance with any other obligation hereunder or to exercise any right or remedy occurring as a result of any future default or failure of performance. H. Compliance with Applicable Laws. The parties hereto shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. I. Assignment or Transfer of Rights or Obligations. The Manager shall not sell, assign, or transfer any of his rights or obligations under this Agreement in whole or in part without prior written prior consent of the City. J. Effective Date. This Agreement shall be and become in full force and effect as of the date above first written upon the adoption and approval of the Council, and the execution and delivery hereof by the authorized officer of the City and the Manager. K. Counterparts. This Agreement may be executed in duplicate original counterparts, each of which when so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. L. No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and the Manager hereby agree that no claim or dispute between the City and the Manager arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1 - 14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Manager consents to be joined in the arbitration proceeding if the Manager's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. M. Remedies. No right or remedy granted herein or reserved to the City is exclusive of any other right or remedy herein by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder. No covenant or condition of this Agreement may be waived without written consent of the parties, unless otherwise indicated. N. Authority. The persons executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he /she represents. Agreement for Professional Services and Employment as City Manager, Page 8 IN WITNESS WHEREOF, the City and the Manager have executed this Agreement effective as of the date first written above. CITY OF e , EPHEN-H. DONCARLOS, ATT T: aJp a� LETICIA BRYSCH, Clerk APPROVED AS TO FORM NACIO RA IREZ, SR., C *1 Attorney AGREED AND ACCEPTED this the jAay of May, 2015. MANAGER STATE OF/ ema<5 COUNTY OF tw Before me, G �41,. the undersigned notary public, on this day personally appeared RICK DAVIS, kn wn 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 _6 day of y, 2015. LETICIA C. BRYSCH : Notary Public, Texas My commission Expires tary Public in and for December 04, 2018 State of Texas \\cobfs0I \legal \Karen \Files \Contracts \City Manager Agreement\ CityManagerContmetRickDavis2015 .doc Agreement for Professional Services and Employment as City Manager, Page 9