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Ordinance No. 14,457ORDINANCE NO. 14,457 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE FOURTH 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 Fourth 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 131h day of August, I Z--� , mayor A LETI IA BRYSC ity Clerk -� .lt. o°ooaooep �bN �o oV •� 8 8 0 0 APPROVED AS TO FORM: Sl � °eeo°ooJJpO KAREN L. HORNER, Interim City Attorney R:.Karen.Files .City Council Ordinances\2020Wugust 13 CityManagerContractAmendmentOrdinance.doc Exhibit "A" FOURTH AMENDMENT TO THE AGREEMENT FOR PROFESSIONAL SERVICES AND EMPLOYMENT AS CITY MANAGER STATE OF TEXAS COUNTY OF HARRIS This Fourth Amendment ("Fourth 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 July 20, 2020 (the "Effective Date"). WITNESSETII: 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, 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 Fourth Amendment shall have the same meanings as in the Third Amendment, the Second Amendment, the First Amendment and the Agreement. 2. Amendments. a. Section 1 "Duties" of the Agreement and all amendments thereto is hereby amended to read 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 of the City of Fourth Amendment to the Agreement for Professional Services and Employment as City Manager, Page 1 Baytown, Texas (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 performance reviews annually and at other times 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, at a minimum, to the same across-the-board adjustment in compensation given to all other non -civil service employees of the City, if any, for the fiscal year in which the review is given. b. Section 2 "Term" of the Agreement and all amendments thereto is hereby amended to read as follows: Section 2. Term. The term of this Agreement shall be two (2) 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. Each year at the annual performance review of the Manager, the Council shall determine whether this Agreement should be extended for an additional year beyond the then -current term. Each year that this Agreement is in effect is hereinafter known as 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 Charter, City personnel policies and procedures, and the provisions set forth hereinafter in the section entitled "Termination." Section 3 "Salary" of the Agreement and all amendments thereto 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 July 20, 2020, be TWO HUNDRED FORTY-SIX THOUSAND SIXTY-THREE AND 35.100 DOLLARS ($246,063.35), payable in installments at the same time as other non -civil service employees of the City are paid; provided, however, should the Manager give the Mayor written notice of his desire to decline this adjustment to his base salary, the Manager's pay rate shall be calculated in accordance with the Third Amendment of this Agreement commencing on the first day of pay period commencing after the Mayor's receipt of the Manager's written notice. The Council further agrees to review the base salary and other Fourth Amendment to the Agreement for Professional Services and Employment as City Manager, Page 2 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" of the Agreement and all amendments thereto is hereby amended to read as follows: Section 4. Benefits Except as otherwise provided in this section, 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 recognition of the managerial experience of Manager, the Manager's 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 over twenty-three (23) 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 6 "Moving Costs" of the Agreement and all amendments thereto is hereby renamed Section 6 "Residency," which section shall read as follows: Section 6. Residency 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. ' 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 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 a. is then willing and able to perform all the duties of the City Manager under this Agreement, then, except as provided in subsection A(1)b, 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 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, Fourth Amendment to the Agreement for Professional Services and Employment as City Manager Page 3 b. is notified that the Agreement will not be extended for an additional year pursuant to Section 2 and the Manager is then no longer willing to perform all the duties of the City Manager under this Agreement, then, in that event, the City agrees to pay the Manager payment equal to twelve (12) months of salary and car allowance plus (ii) 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. 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 for the period in which the City Manager is entitled to receive his salary and car allowance under the Section 10A(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"' 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 all federal, state and local tax consequences that result from his receipt of this benefit from the City. Except as provided in subsection A(1)b of this section, 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 Fourth Amendment to the Agreement for Professional Services and Employment as City Manager Page 4 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; ➢ 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. 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, Fourth Amendment to the Agreement for Professional Services and Employment as City Manager, Page 5 ➢ fails to extend the Agreement for an additional year pursuant to Section 2, or ➢ 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. 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 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 Fourth Amendment and the provisions of the Third Amendment, the Second Amendment, the First Amendment, and the Agreement, the provisions of this Fourth Amendment shall control. 4. Interpretation. This Fourth 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 Fourth Amendment. Captions. Captions contained in the Agreement, the First Amendment, the Second Amendment, Third Amendment, and Fourth 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. IN WITNESS WHEREOF, the parties hereto have executed this Fourth 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, 2020, the date of execution by the Mayor. CITY OF BAYTOWN BRANDON CAPETILLO, Mayor ATTEST: LETICIA BRYSCH, City Clerk Fourth Amendment to the Agreement for Professional Services and Employment as City Manager, Page 6 APPROVED AS TO FORM: KAREN L. HORNER, Interim City Attorney AGREED AND ACCEPTED this the day of July, 2020. 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, 2020. Notary Public in and for the State of Texas R:1Karen\FitesTontractsTity Manager Agreement\Rick's Fourth Amended Agreement.doc Fourth Amendment to the Agreement for Professional Services and Employment as City Manager, Page 7