Ordinance No. 9,05720001214-5
ORDINANCE NO. 9057
® AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR AND THE
CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST TO
AN AGREEMENT FOR PROFESSIONAL SERVICES AND EMPLOYMENT AS
CITY MANAGER WITH MONTE C. MERCER; 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 and
directs the Mayor and the City Clerk of the City of Baytown to execute and attest to an Agreement
for Professional Services and Employment as City Manager with Monte C. Mercer. A copy of said
contract 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 this the 14th day of December, 2000.
ATTEST:
,Q-
G ,W. SMITH; City Clerk
APPROVED AS TO FORM:
CtG&ACIO RAMIREZ, Sk.,tity Attorney
cAMyDocuments \Counci1 \00 -01 \DecemberTityManagerContract
L',
PETE C. ALFARO, Mayor
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 day of , 2000, by and between the City
of Baytown, Texas, a municipal corporation (the "City "), and Monte C. Mercer (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
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
ep d on the terms, conditions, and provisions agreed to and set forth in this Agreement;
Agreement for Professional Services
and Employment as City Manager, Page 1 PCHIBIT A
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.
The Council hereby employs 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.
Section 2. Term and Termination.
A. Term. The term of this Agreement shall be indefinite and this Agreement shall be and remain in
full force and effect until 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."
B. Termination. Upon delivery of any notice of termination required herein, the Manager shall
discontinue all services in connection with the performance of the Agreement. Any act of
termination by the City shall not be deemed a waiver of any other right or remedy of the City. If
the cause of the termination is deemed invalid, in error, or insufficient for any reason, the
termination will be deemed to be for convenience and the termination shall be valid.
Section 3. Salary.
The City agrees to pay the Manager an annual base salary, which salary shall initially be $109,800.00, payable
in installments at the same time as other 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, in addition to the benefits enumerated specifically for the benefit of the Manager herein.
Vacation, sick leave, and all other benefits which vary according to tenure shall be calculated and granted to the
Manager in accordance with the City's regulations using the Manager's original employment date with the City.
Section 5. 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 participation in select national, regional, state, and local
associations necessary and desirable for the Manager's continued professional participation, growth and
*advancement, and for the good of the City, as determined by the Council. Developing and maintaining
professional association contacts and standing provide the City access to valuable resources, and the reasonable
Agreement for Professional Services
and Employment as City Manager, Page 2
participation and related travel by Manager as provided for in the annual budget will be a part of the Manager's
Duties.
Section 6. 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. 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 7. flours 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 anyway
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 8. Termination and Severance Pay.
A. Termination. In the event Manager is terminated by the Council during the Term of this
Agreement and Manager is then willing and able to perform all the duties of the City Manager
under this Agreement, then, in that event, the City agrees to pay the Manager a lump sum cash
payment equal to six months full salary, plus 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; provided that, if the Manager is terminated because of a conviction of a
misdemeanor involving moral turpitude or personal gain or because of an indictment for a
felony, then, in that event, the City shall have no obligation to pay the severance payments
.designated in this section.
B. Reductions. In the event the Council during the Term of this Agreement reduces the authority of
the Manager, or 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 in the event the
City refuses, following written notice, to comply with any other provision benefiting the
Agreement for Professional Services
and Employment as City Manager, Page 3
Manager herein, or the Manager resigns following a formal suggestion by the Council that the
® Manager resign, then in that event, the Manager may, at the Manager's option, be deemed to have
been terminated as of the date of such reduction, or as of the date the Manager resigns at the
Council's suggestion; provided that, notice having first been given, the suspension of the
Manager with pay pending the resolution of any criminal charge filed against the Manager shall
not constitute a termination, or a reduction under this Section. The Council shall be deemed to
have suggested the resignation of the Manager at any time when a majority of the members of
the Council shall at a Council meeting suggest that the Manager resign.
C. Resignation. 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 9. 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 10. Conflict of Interest Prohibition.
In addition to complying with the conflict of interest provision contained in the Charter 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, except for a personal residence or residential property acquired or
held for, future use as the Manager's personal residence, not invest in any other real estate or property
improvements within the City, without the prior written consent of the Council.
Section 11. 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.
Section 12. 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.
Agreement for Professional Services
and Employment as City Manager, Page 4
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 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.
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
Agreement for Professional Services
and Employment as City Manager, Page 5
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.
IN WITNESS WHEREOF, the City and the Manager have executed this Agreement effective as of the
date first written above.
CITY OF BAYTOWN
PETE C. ALFARO, Mayor
ATTEST:
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, S ty Attorney
AGREED AND ACCEPTED this the day of 32000.
MANAGER
MONTE MERCER
Agreement for Professional Services
and Employment as City Manager, Page 6
STATE OF TEXAS §
SCOUNTY OF HARRIS §
Before me, , the undersigned notary public, on this day personally appeared
MONTE C. MERCER, 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 , 2000.
Notary Public in and for the State of Texas
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Agreement for Professional Services
and Employment as City Manager, Page 7