2013-070s:llegal\our documentslordivances11316urgess salary approval.doc
ORDINANCE NO. 2013-07�
AN ORDINANCE APPROVING A SALARY INCREASE FOR ANITA BURGESS UNDER
THE PERFORMANCE REVIEW PROVISION OF HER EMPLOYMENT AGREEMENT
WITH THE CITY; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, on October 1, 2010, the City Council approved an employment agreement
with Anita Burgess as City Attorney by Ordinance No. 2010-251; and
WHEREAS, the City Council Appointee Performance Review Committee and City
Council have completed the City Attorney's annual review and the Committee has recommended
that the City Council approve a salary increase; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitals and findings contained in the preamble of this Ordinance are
incorporated into the body of this Ordinance.
SECTION 2. The City Council hereby approves a salary increase in the amount of 2% of
the current base salary under Section 6 of the Agreement, or the average increase given all City
employees in the event the City Council implements a budgetary decrease of employee salaries,
to be effective as of October 1, 2012.
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.
PAS SED AND APPROVED this the �i� day of %�//Q,� �� � , 2013 .
HS, MAYOR
ATTEST:
JENNIFER WALTERS, ITY SECRETARY
BY:
APP ED A TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
STATE OF` TEXAS §
COUNTY OF DENTON §
Employment Agreement
This Em.ployment Agreemeni (this "Agreement") is made and entered into this J. st day of
October 2010 by and between the City of Denton, Texas, a Texas municipal corporation (the
"Employer") a�d 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 Agree:r�zent dated the 19th day of August, 2008, as
amended, io 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 ser�v:�ces af the Employee and
to provide inducement for the Employee ta remain in such employment; (2) make possible full
work productivity by assuring the Employee's morale and peace of mind with respect to fiiture
secwrity; and (3) act as a deter.rent against malfeasance or dishonesty �or 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 Ernployee is a member of ihe State Bar of Texas ("State
Bar") and that Employee is subject to the Texas Disciplinary Rules of Professional Conduct;
Now, therefore, in considerataon of the mutual covenants herein contained, the Parties agree as
follows:
SECTION 1. DEFINITIONS
In this Agreement, the following words and phrases sha11 have the following mearungs:
C� n:zeans 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
Agreemeni remai.ns in fiill �orce 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 terrninated in accordance with the provisions of tb.is Agreement.
Involuntary Separation has the meaning assigned in Section S.D, of this Agreement.
Salas xz�eaazs the monetary arnount 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—at�d does
not include the value of any other benefit of employment or other axn,ount.
Termination Date mearas the date upon which this Agreement terminates under any applicable
provision of this Agreement.
Total Compensataon 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 o:f the Employee as City
Attorney of said Employer to perform the functions an.d duties specified by the Denton Home
Rule City Charter (the "Ciiy Charter"), the Code of the City of Denton, Texas (the "City Code"),
and a11 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 ihis Agreement is five yeaxs beginning on the lst day of October 2010
and ending on the 30th day o£ September 2015.
B. Unless the Council—at least 30 days befoxe the expiration of the Initial Term—gives the
Employee written notice of non-renewal, the terxns of this Agreement shall automaiically
renew for one Extended Term. Unless the Council—at least 3Q days before ihe expiraiion
of an Extended Term once comrnenced—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 Employex ox the Employee under any
applicable provision of this Agreement. If the Employer terminates tivs Agreernent, it
must do so either by: (1) following the proceduxes set forth in Section 4 of this
Agreement; or (2) providing a notice of non-renewal in accoxdax�ce witlx Section 3.B. of
PAGE 2 �F 8
this Agreement. The Ernployee 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. INVOLUNTARY SUSPENSION/REMOV,AL
The Employer may suspend or remove the Employee but only if at least 30 days before tl�e
suspension or removal shall beco:me effeciive, the Council shall by a maj�rity 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 nat
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 znay 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 �ote may adopt a final xesolution 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 Separaiion occurring during the Initial Term, the Employee shall be
entitled to a luxnp sum severance payment in addition to all arnounts previously earned.
The amount of the severance payment required to be paid to the Employee upon
Involuntary Separaiion occLU7ring 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 Separaiion occurring at
any time during the first year of the Initial Terzn, with said portion increasing by an
additiona.l month's Total Com.pensation 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 10/112011— 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
Yeas 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 Sepaxation 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 5.A., Section 5.B., or any other provision of this Agreement, the
Ernployer sha11 not be obligated to pay and the Employee shall not be entitled to receive
any amount as severance payment if the Employee's sepaxation from employment is due
to the Employee having been convicted of an.y felony offense, o;r any non-felony offense
involving: (1) moral turpitude; or (2) an illegal act(s) resulting in pexsonal gain to the
Employee.
D, "Involu.ntary 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 xeduction in the
Employee's Salaxy or other financial benefits in a greater percentage than a coiuuciding
across-the-board reduction for all City employees. If Emplayee resigns upon such a
reduction, the calculation o�the arnount 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 ser�ices 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,
xetixement a.nd pension system contribution, holidays, and other fringe benefits and
worlcing conditions as they now exist or hereafter may be amended, shall apply to
Employee as they would to other ennployees 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 ihe Council may determine within the approved budget that ii is
desirable to do so on the basis of an annual perforznance review of the Employee made at
the same time as similar consideraiion is given otk�.ex Council appointees.
SECTION 7. PERFORMANCE EVALUATION
A. The C�uncil 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
PAGB 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. Ant�ually, the Council and Employee shall define such goals and pex�ormance objectives,
which they determine necessary for the proper operation of the City of Denton Legal
Departrnent, and in the attainment of the Council's policy objectives an.d shall fiirther
establish a relative priority among those various goals and objectives.
SECTI4N 8. HOURS OF WORK
It is recognized by both Employer and Employee that the duties of City Attorney require a great
deai of time outside of norrnal office hours. It is also recognized by the Parties that Employee is
required to devote the axnount of time and energy necessary to carry out those duties with the
highest arnount of professionalism possible. That being the case, the Parties recognize that
Empioyee may choose to talLe personal tirne 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 compensatoxy time for tune spent by Employee it� carrying out
the Employee's duties outside o£ rzorznaJ. office hours, as the Parties agree that the Employee
must devote the amount of time necessary to ful.�ll ihose 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
tkxis does noi conflict or interfere with the Employee's duties as City Attorney, and provided that
En�zployee f�rst natifies the Council Appointee Performance Review Committee that the
Employee intends to engage in such activity, includang the amount of time the Employee intends
to devote to this activity and the Employee's engagemeni in the activity is approved by the Chair
of the Cornmittee.
SECTION 10. AUTOMOBILE
The Employee is required to be on call for 24-hour service, so iherefore, must have access io a
vehicle for City business. Employer shall grant to the Employee a car allowance of $650 per
month £or providing such vehicle. The Employee shall be responsible for the purchase
maintenance, insuxance, taxes, etc. for said vehicle. The monthly allowance wi11 be cansidered
for increase during the performance evaluation process. The Employer also agrees to xeimbrxrse
Employee for mileage outside a SO-mile radius of the City of Denton associated with City
business at the curre�t 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 additi�n to Employee's Salary. Employer also agrees
to allow Employee to contribute whatever portion of tha Employee's Salary the
Employee may deem appropriate to said p1an, including "catch-up" provisions.
B. Employer agrees to pay the
TMRS retirement program;
executive-level employees.
percentage of the cost of Employee's participation in the
in accordance with Employer's current policy for other
C. If the Employee retires pursuant to a qualified retirement plan, or is permanently disabled
during the term of this Agreement, the Employee sha11 be compensated for the sicl� leave,
vacation lea�e, holidays, and other benefits ihen accrued or cxedited to the Employee in
accordance with Employer's current policies fox coznpensation 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 pexmitted to do so, or,
if such otl�er retirees are not permitted to do so, at the cost of the Erxzployee.
SECTION 12. DUES, MEMBERSHIPS AND SUBSCRIPTIONS
Employer agrees to l�udget and ta pay for the professional dues, memberships and subscriptions
of Em.ployee necessary for the Employee's continuation of fii11 participation in national, regional,
state and local associations and organizations necessary and desixable :fox the Enr�ployee's
continued professional participation, growth and advancement as City Attorney, and for the good
of the Employer in at�aouxzts 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 Ermplayee for professional and official travel, meetings and occasions adequate to
cantinue the professional development of Employee, and to adequately pursue necessary official
and othex functions for Employer, including but not limited to the Azu�ual Conference of
Internataonal Municipal Lawyexs Association, Texas City Attorneys Association, Texas
Municipal League, and other such national, regional, state and local groups and committees
thereof which Employee sexves as a member in the amounts approved by the Council in the
annual budget fox the Legal Department.
PAGE 6 OF 8
SECTION 14. BONDING
Employer shall bear the full cost of any �idelity 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 axxd 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 Agreernent, t�ne City Charter or any other law,
and are memorialized by a written amendment to this Agreemeni.
B, All provisions of the City Charter and City Code, and regulations and ruies of the
Employer relating to vacation and sick leave, xeiirement and pension system
contributions, holiday, and other fringe benefits and working conditions as they now exist
ar 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 prevzous agreement(s) between the Parties regarding the
subject matter of this Agreement.
B. This Agreement shall be binding upon and inure to the benefit o:F the heixs at law arad
executors of Employee.
C. If any provision, or any portion, thereof, contained in this Agreement is held
unconstitutional, invalid, or unenforceable, �he remainder of this Agreement, or portion
thereof, shall be deemed several, shall not be affected and sball 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 C�unty, Texas.
SECTION 17. APPROPRIATIONS
The Employer agrees that it will appropriate, set aside and encuxnber funds of the City in an
amount sufficient to fund and pay all fmancial 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
T1us Agreement sha11 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 a.nd executed this Agreement and the Employee has signed and
executed this Agreemeni, both in duplicate, the day and year first above written.
CITY OF DENTON, TEXA.S
� �F/~� .,r' ' ;%
14 . � /������ "�/
.. �
MA A�BU UGHS, MAYOR
ATTEST:
JE IFER LTERS, CITY SECRETARY
� CJ�1
ANITA BURGESS
CITY ATTORNEY
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