Ordinance No. 14,124ORDINANCE NO. 14,124
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE THIRD AMENDMENT TO THE
AGREEMENT FOR PROFESSIONAL SERVICES AND EMPLOYMENT AS
CITY MANAGER WITH RICHARD L. DAVIS; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
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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 Third 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 251h day of July, 201 .
BRANDON CAPETILLO, May
A T:
LETICIA BRYSCH, CWy Clerk
APPROVED AS TO FORM:
RNe,
co rokrjeo
ACIO RAMIREZ, SR., Cit t rney
UL
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Exhibit "A"
THIRD AMENDMENT
TO THE
AGREEMENT FOR PROFESSIONAL SERVICES
AND EMPLOYMENT AS CITY MANAGER
STATE OF TEXAS §
COUNTY OF HARRIS §
This Third Amendment ("Third 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 on the date hereinafter last specified.
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, 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:
Definitions. Unless a different meaning clearly appears from the context, words and
phrases as used in this Third Amendment shall have the same meanings as in the Second
Amendment, the First Amendment and the Agreement.
2. Amendments.
a. Section 3 "Salary" of the Agreement is hereby amended to read as follows:
Section 3. Salary.
The City agrees to pay the Manager an annual base salary, which salary shall on
August 5, 2019, be TWO HUNDRED THIRTY-EIGHT THOUSAND EIGHT
HUNDRED NINETY-SIX AND 46/100 DOLLARS ($238,896.46), payable in
installments at the same time as other non -civil service employees of the City are
Third Amendment to the Agreement for Professional Services
and Employment as City Manager, Page 1
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.
b. Section 3.5 "Bonus" of the Agreement is hereby repealed.
C. Section 10 "Termination and Severance Pay" of the Agreement is hereby
amended to read as follows:
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 Manager under this Agreement and Manager has
performed such duties for at least one (1) full year, then, in that event,
(1) the City agrees to pay the Manager a lump sum cash payment
equal to (i) six (6) months of salary and car allowance, plus (ii) one
(1) month of additional salary and car allowance for each full year
of employment after the first full year up to a maximum of six (6)
months 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.
(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 for the period in which the City Manager is
entitled to receive his salary and car allowance under the Section
10.a(1) (the "Extended Period"). After the Extended Period, the
City Manager shall be responsible for all costs and expenses
thereof for any remaining period. 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
Third Amendment to the Agreement for Professional Services
and Employment as City Manager, Page 2
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
all federal, state and local tax consequences that result from his
receipt of this benefit from the City.
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
r 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
termination 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
Third Amendment to the Agreement for Professional Services
and Employment as City Manager, Page 3
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.
C. Termination by Manager. In the event the Council, during the Term of this
Agreement,
➢ 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.
Entire Agreement. The provisions of this 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 Third Amendment and the provisions of the Second Amendment, the
First Amendment, and the Agreement, the provisions of this Third Amendment shall
control.
4. Interpretation. This Third 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 Third Amendment.
Captions. Captions contained in the Agreement, the First Amendment, the Second
Amendment, and Third 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.
Third Amendment to the Agreement for Professional Services
and Employment as City Manager, Page 4
IN WITNESS WHEREOF, the parties hereto have executed this Third 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, 2019, the date of execution by the
Mayor ("Effective Date").
CITY OF BAYTOWN
BRANDON CAPETILLO, Mayor
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
AGREED AND ACCEPTED this the day of July, 2019.
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, 2019.
Notary Public in and for the
State of Texas
R: Karen Files Contracts City Manager Agreement\Rick's Tlurd Amended Agreement doc
Third Amendment to the Agreement for Professional Services
and Employment as City Manager, Page 5