2010-251FILE REFERENCE FORM 2010-251
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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.
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MARI� �BURRO GHS, MAYOR
ATTEST: APPROVED AS TO LEG.AL FORM:
JENN�'ER WALTERS, CITY SECRETARY ' CLARK MCCOY
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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.
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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
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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,
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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
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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
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MA A�BU UGHS, MAYOR
ATTEST:
JE IFER LTERS, CITY SECRETARY
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ANITA BURGESS
CITY ATTORNEY
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