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2010-251FILE REFERENCE FORM 2010-251 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials First Amendment to Employment Agreement - Ordinance No. 2015-145 05/05/15 J R ORDINANCE NO. 2410-251 AN ORDINANCE APPROV�JNG AN EMPLOYMENT AGREEMENT FOR THE CITY ATTORNEY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT SETTING THE COMPENSATION AND TERMS OF THAT EMPLOYMENT; AUTHORIZING EXPENDITIJRES AND ACTIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council on August 19, 2008 approved an employznent agreement with Anita Burgess by Ordanance No. 2008-193; and WHEREAS, the City Council desires to continue the employment of Anita Burgess as the City Attornay for the City of Denton; and WHEREAS, the City Council Finds that this Ordinance is in the public interest; NOW, THEREFORE: THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAlNS; SECTION 1. The recitals and fmdings contained in the preamble of this Ordinance are incorpoa•ated into the body of this Ordinance, SECTION 2. Tl�e Czty Council hereby approves an �mployment Agreement for the City Attorney and authorizes the Mayor, or his designee to execute the Agreement on behalf of the City. SECTION 3. The City expenditures provided for in the Agreement are hereby authorized. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. � PASSED AND APPROVED this the �' d of 2010. � � � .�� 1 _ ; ,� / I' �} i i 1 . � !� ,' �r � � MARI� �BURRO GHS, MAYOR ATTEST: APPROVED AS TO LEG.AL FORM: JENN�'ER WALTERS, CITY SECRETARY ' CLARK MCCOY • BY. V� BY, ______... STATE OF TEXAS § COUNTY OF DENTON § Employment Agreement This Employment Agreement (this "Agreement") is made and entered into this 1 st day of October 2010 by and between the City of Denton, Texas, a Texas municipal corporation (the "Employer") and Anita Burgess (the "Employee"), with the Employer and the Employee sometimes being referenced collectively in this Agreement as the "Parties." Witnesseth; Whereas, the City Council of the City of Denton (the "Council") and the Employee desire to amend that certain written Employment Agreement dated the 19th day of August, 2008, as amended, to continue the employment services of the Employee as City Attorney of the City of Denton; and Whereas, it is the desire of the Council to: (1) secure and retain the services of the Employee and to provide inducement for the Employee to remain in such employment; (2) make possible full work productivity by assuring the Employee's morale and peace of mind with respect to future security; and (3) act as a deterrent against malfeasance or dishonesty for personal gain on the part of the Employee; and Whereas, the Employee desires to continue employment as City Attorney of said City of Denton, Texas as a Council appointee; and Whereas the Parties acknowledge that Employee is a member of the State Bar of Texas ("State Bar") and that Employee is subject to the Texas Disciplinary Rules of Professional Conduct; Now, therefore, in consideration of the mutual covenants herein contained, the Parties agree as follows: SECTION 1. DEFINITIONS In this Agreement, the following words and phrases shall have the following meanings: City means the City of Denton, Texas. Commencement Date means October 1, 2010. Extended Term means any one-year time period, or any part thereof, during which this Agreement remains in full force and effect as a result of any automatic renewal of the terms of this Agreement. PAGE 1 OF 8 Initial Term means the five-year time period beginning on the Commencement Date and ending on September 30, 2015, during which this Agreement shall be in full force and effect if not earlier terminated in accordance with the provisions of this Agreement. Involuntary Separation has the meaning assigned in Section S.D. of this Agreement. Salar means the monetary amount stated in Section 6.A. of this Agreement that the Employee is entitled to as an annual base salary—or, if no longer current, then the monetary amount that the Employee is currently entitled to as an annual base salary as approved by the Council—and does not include the value of any other benefit of employment or other amount. Termination Date means the date upon which this Agreement terminates under any applicable provision of this Agreement. Total Compensation means the combined sum of the Employee's Salary and the monetary value of all other benefits that the Employee is entitled to under this Agreement and otherwise as an Employee of Employer. SECTION 2. DUTIES Employer hereby continues to engage the employment services of the Employee as City Attorney of said Employer to perform the functions and duties specified by the Denton Home Rule City Charter (the "City Charter"), the Code of the City of Denton, Texas (the "City Code"), and all other applicable laws, and as outlined in the City of Denton's job description as it now exists or as it may exist with future modifications by the Council and agreed upon by the employee, and to perform other legally permissible and proper duties and functions as Employer shall from time to time assign. SECTION 3. TERM A. The Initial Term of this Agreement is five years beginning on the l st day of October 2010 and ending on the 30th day of September 2015. B. Unless the Council—at least 30 days before the expiration of the Initial Term—gives the Employee written notice of non-renewal, the terms of this Agreement shall automatically renew for one Extended Term. Unless the Council—at least 30 days before the expiration of an Extended Term once commenced—gives the Employee written notice of nonrenewal, the terms of this Agreement shall automatically renew for an additional Extended Term. C. This Agreement may be terminated before the expiration of the Initial Term or before the expiration of any subsequent Extended Term by the Employer or the Employee under any applicable provision of this Agreement. If the Employer terminates this Agreement, it must do so either by: (1) following the procedures set forth in Section 4 of this Agreement; or (2) providing a notice of non-renewal in accordance with Section 3.B. of PAGE 2 OF 8 this Agreement. The Employee may terminate this Agreement by providing at least 30 days written notice to the Employer before the date designated by the Employee for termination. SECTION 4. 1NVOLUNTARY SUSPENSION/REMOVAL The Employer may suspend or remove the Employee but only if at least 30 days before the suspension or removal shall become effective, the Council shall by a majority vote of its members adopt a preliminary resolution stating the reasons for removal. Employee may reply in writing and may require a hearing at a public meeting of the Council, which shall be held not earlier than 20 days and not later than 30 days after the filing of such request. The hearing may be held in executive session, at the option of the Council, unless Employee requests the hearing be held in open session in accordance with Tex. Gov't Code §551.074. Pending such hearing, the Council may suspend Employee from duty, but may not suspend or reduce the Employee's Salary. After such hearing or public hearing, if one be requested, and after full consideration, the Council by maj ority vote may adopt a final resolution of removal or reinstatement. This Agreement shall be deemed to terminate on the effective date of a final resolution of removal. SECTION 5. SEPARATION AND SEVERANCE PAY A. Upon Involuntary Separation occurring during the Initial Term, the Employee shall be entitled to a lump sum severance payment in addition to all amounts previously earned. The amount of the severance payment required to be paid to the Employee upon Involuntary Separation occurring during the Initial Term of this Agreement shall be a portion of the amount of the Employee's Total Compensation, said portion being eight months of the Employee's Total Compensation for Involuntary Separation occurring at any time during the first year of the Initial Term, with said portion increasing by an additional month's Total Compensation for each subsequent year, as demonstrated in the following schedule: Portion of Total Year of Employment during Compensation to be Paid as Initial Term Severance Upon Involuntary Separation During Initial Term Year 1 10/1/2010 — 9/30/2011) 8 months Year 2(10/1/2011 — 9/30/2012) 9 months Year 3(10/1/2012 — 9/30/2013) 10 months Year 4(10/1/2013 — 9/30/2014 11 months Year 5(10/1/2014 — 9/30/2015) 12 months B. Provided that the Employee remains at all times employed as Employer's City Attorney for the entire Initial Term of this Agreement, the Employee shall thereafter be entitled to receive a full year of the Employee's Total Compensation upon Involuntary Separation, PAGE 3 OF 8 except in the event such Involuntary Separation is due to any of the reasons set forth in Section S.C. of this Agreement, in which case the Employer shall not be obligated to pay and the Employee shall not be entitled to receive any amount as severance payment. C. Notwithstanding Section S.A., Section S.B., or any other provision of this Agreement, the Ernployer shall not be obligated to pay and the Employee shall not be entitled to receive any amount as severance payment if the Employee's separation from employment is due to the Employee having been convicted of any felony offense, or any non-felony offense involving: (1) moral turpitude; or (2) an illegal act(s) resulting in personal gain to the Employee. D. "Involuntary Separation" means the Employee's: (1) removal by the Council under Section 4 of this Agreement; (2) separation by the Council's act of non-renewal of the Initial Term or any Extended Term as set forth in Section 3.B. of this Agreement; or (3) the Employee's resignation upon the Council's reduction or threatened reduction in the Employee's Salary or other financial benefits in a greater percentage than a coinciding across-the-board reduction for all City employees. If Employee resigns upon such a reduction, the calculation of the amount of any severance pay due and owing under this Agreement shall be based on the amount of the Employee's Total Compensation immediately before any such reduction. SECTION 6. SALARY A. For the services rendered as the Employer's City Attorney, the Employer agrees to pay Employee an annual base Salary of $194,480, payable in installments at the same time as other employees of the Employer are paid. All provisions of the City Charter, City Code, and Council-adopted Rules and Regulations relating to the vacation and sick leave, retirement and pension system contribution, holidays, and other fringe benefits and working conditions as they now exist or hereafter may be amended, shall apply to Employee as they would to other employees of the City, which benefits include health insurance, long-term disability insurance, retirement under the Texas Municipal Retirement System, and other benefits as provided to other Council appointees of the City. B, In addition, Employer agrees to increase the Employee's Salary and/or other employment benefits to such extent as the Council may determine within the approved budget that it is desirable to do so on the basis of an annual performance review of the Employee made at the same time as similar consideration is given other Council appointees. SECTION 7. PERFORMANCE EVALUATION A. The Council shall review and evaluate the performance of the Employee at least once annually during the time set aside each year for the performance review of other Council appointees. Said review and evaluation shall be in accordance with specific criteria PAGE 4 OF 8 developed jointly by Employee and Employer. Said criteria may be added to or deleted from as the Council and Employee shall agree. B. Annually, the Council and Employee shall define such goals and performance objectives, which they determine necessary for the proper operation of the City of Denton Legal Department, and in the attainment of the Council's policy objectives and shall further establish a relative priority among those various goals and objectives. SECTION 8. HOURS OF WORK It is recognized by both Employer and Employee that the duties of City Attorney require a great deal of time outside of normal office hours. It is also recognized by the Parties that Employee is required to devote the amount of time and energy necessary to carry out those duties with the highest amount of professionalism possible. That being the case, the Parties recognize that Employee may choose to talse personal time off during business hours when it is appropriate and when the Employee's duties allow. Although this personal time off is not considered vacation, neither is it to be considered as compensatory time for time spent by Employee in carrying out the Employee's duties outside of normal office hours, as the Parties agree that the Employee must devote the amount of time necessary to fulfill those duties. The Council will consider the Employee's use of personal time off during the performance evaluation. SECTION 9. OUTSIDE ACTIVITIES Employee is entitled to devote whatever amount of time the Employee feels is appropriate under the circumstances to the pursuit of teaching, counseling, consulting, writing or other non- employer connected business outside of normal business hours of the Employer, provided that this does not conflict or interfere with the Employee's duties as City Attorney, and provided that Employee first notifies the Council Appointee Performance Review Committee that the Employee intends to engage in such activity, including the amount of time the Employee intends to devote to this activity and the Employee's engagement in the activity is approved by the Chair of the Committee. SECTION 10. AUTOMOBILE The Employee is required to be on call for 24-hour service, so therefore, must have access to a vehicle for City business. Employer shall grant to the Employee a car allowance of $650 per month for providing such vehicle. The Employee shall be responsible for the purchase maintenance, insurance, taxes, etc. for said vehicle. The monthly allowance will be considered for increase during the performance evaluation process. The Employer also agrees to reimburse Employee for mileage outside a 50-mile radius of the City of Denton associated with City business at the current IRS rate for mileage reimbursement in accordance with the then current City Travel Reimbursement Policy for City employees with car allowances. PAGE 5 OF 8 SECTION 11. RETIREMENT A. Employer agrees to execute all necessary agreements provided by the International City/County Management Association — Retirement Corporation (ICMA-RC) for Employee's participation in said ICMA-RC retirement plans. Employer further agrees to contribute a total of 10% of Employee's Salary to ICMA-RC's 457 plan. All sums contributed to said plan shall be in addition to Employee's Salary. Employer also agrees to allow Employee to contribute whatever portion of the Employee's Salary the Employee may deem appropriate to said plan, including "catch-up" provisions. B. Employer agrees to pay the percentage of the cost of Employee's participation in the TMRS retirement program, in accordance with Employer's current policy for other executive-level employees. C. If the Employee retires pursuant to a qualified retirement plan, or is permanently disabled during the term of this Agreement, the Employee shall be compensated for the sicic leave, vacation leave, holidays, and other benefits then accrued or credited to the Employee in accordance with Employer's current policies for compensation for these benefits, and, at the Employee's option, shall be permitted to continue to participate in the City's health insurance plan on the same basis as other retirees from the City are permitted to do so, or, if such other retirees are not permitted to do so, at the cost of the Employee. SECTION 12. DUES, MEMBERSHIPS AND SUBSCRIPTIONS Employer agrees to budget and to pay for the professional dues, memberships and subscriptions of Employee necessary for the Employee's continuation of full participation in national, regional, state and local associations and organizations necessary and desirable for the Employee's continued professional participation, growth and advancement as City Attorney, and for the good of the Employer in amounts that are approved by the Council in the annual budget for the Legal Department. SECTION 13. PROFESSIONAL DEVELOPMENT Employer hereby agrees to budget for and to pay the full travel, participation, and subsistence expenses of Employee for professional and official travel, meetings and occasions adequate to continue the professional development of Employee, and to adequately pursue necessary official and other functions for Employer, including but not limited to the Annual Conference of International Municipal Lawyers Association, Texas City Attorneys Association, Texas Municipal League, and other such national, regional, state and local groups and committees thereof which Employee serves as a member in the amounts approved by the Council in the annual budget for the Legal Department. PAGE 6 OF 8 SECTION 14. BONDING Employer shall bear the full cost of any fidelity or other bonds that may be required of the Employee under any law or ordinance. SECTION 15. OTHER TERMS AND CONDITIONS OF EMPLOYMENT A. The Council, upon recommendation of the Council Appointee Performance Review Committee and in consultation with the Employee, shall fix any such other terms and conditions of employment as it may determine from time to time, relating to the performance of Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the City Charter or any other law, and are memorialized by a written amendment to this Agreement. B. All provisions of the City Charter and City Code, and regulations and rules of the Employer relating to vacation and sicic leave, retirement and pension system contributions, holiday, and other fringe benefits and working conditions as they now exist or hereafter may be amended, also shall apply to Employee as they would to other employees of the Employer in addition to said benefits enumerated specifically for the benefit of Employee. SECTION 16. GENERAL PROVISIONS A. The text herein shall constitute the entire agreement between the Parties, and shall supersede and replace any previous agreement(s) between the Parties regarding the subject matter of this Agreement. B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of Employee. C. If any provision, or any portion, thereof, contained in this Agreement is held unconstitutional, invalid, or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed several, shall not be affected and shall remain in force and effect. D. The venue of any litigation involving this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. SECTION 17. APPROPRIATIONS The Employer agrees that it will appropriate, set aside and encumber funds of the City in an amount sufficient to fund and pay a11 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. PAGE 7 OF 8 SECTION 18. EFFECTIVE DATE This Agreement shall talce effect on October 1, 2010, IN WITNESS WHEREOF, the Mayor as duly authorized by the Council and on behalf of the City of Denton, has signed and executed this Agreement and the Employee has signed and executed this Agreement, both in duplicate, the day and year first above written. CITY OF DENTON, TEXAS �,�i 1 f `�...✓r� /`, � MA A�BU UGHS, MAYOR ATTEST: JE IFER LTERS, CITY SECRETARY . � � � ' CJ� ANITA BURGESS CITY ATTORNEY PAGE 8 OF 8