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07-A City Manager Employment Agreement DRAFT f:attorney\reswork\current\Carrutb Employment Agreement Res 2007 August 6, 2007 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, APPROVING AND AUTHORIZING THE EXECUTION OF A CITY MANAGER EMPLOYMENT AGREEMENT BETWEEN KEVIN CARRUTH AND THE CITY OF PARIS; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, on July 25,2007 the City Council of the City of Paris voted 7-0 to offer the City Manager position with the City of Paris to Kevin Carruth subject to Mr. Carruth and the City of Paris negotiating an acceptable contract; and, WHEREAS, the City Council has reviewed the attached Employment Agreement with Kevin Carruth and deems it appropriate, and the Mayor should be authorized to execute said Employment Agreement on behalf of the City Council in the form of Exhibit A attached hereto; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS: Section 1. That the findings set out in the preamble of this resolution are hereby in all things approved. Section 2. That the City Manager Employment Agreement between Kevin Carruth and the City of Paris, in the form of Exhibit A attached hereto, is hereby accepted conditioned upon the terms and conditions included in the agreement and the Mayor of the City of Paris be and he is hereby authorized and directed to execute the Employment Agreement on behalf of the City of Paris. Section 3. That this resolution shall be effective from and after the date of passage. PASSED AND APPROVED this 13th day of August, 2007. Jesse James Freelen, Mayor ATTEST: Janice Ellis, City Clerk CITY MANAGER EMPLOYMENT AGREEMENT THE STATE OF TEXAS ~ ~ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LAMAR ~ THIS CITY MANAGER EMPLOYMENT AGREEMENT ("Agreement") is made and entered into effective the _ day of , 2007, by and between the City of Paris, Texas, a Texas municipal corporation (the "City") and Kevin Carruth (the "Manager"). WIT N E SSE T H: WHEREAS, the City Council of the City (the "Council") and the Manager believe that an employment agreement negotiated between the Council, on behalf of the City, and the Manager can be mutually beneficial to the City, the Manager, and the community they serve; WHEREAS, when appropriately structured, the Council and the Manager believe an employment agreement can strengthen the Council-Manager relationship by enhancing the excellence and continuity of the management of the City for the benefit of its citizens; WHEREAS, the Council, on behalf of the City, desires to employ the services of the Manager, as the city manager of the City ("City Manager"), pursuant to the terms, conditions and provisions of this Agreement. WHEREAS, the Manager has agreed to accept employment as the City Manager, subject to the terms, conditions and provisions of this Agreement. NOW, THEREFORE, the City and the Manager, for and inconsideration of the terms, conditions and provisions hereinafter established have agreed, and do hereby agree as follows: I. Term 1.1 Term. The term of the Agreement shall be for a term of three (3) years beginning on August 27, 2007 (the "Commencement Date) and ending on August 27, 2010 (the "initial term"), provided, however, that the term of this Agreement shall be subject to earlier termination at the pleasure of the Council, for any of the reasons set forth in Section 6.1 below. 1.2. Extension. At the end of twenty-four (24) months following the Commencement Date of this Agreement and following the Manager's second annual performance review, the Council may extend this Agreement for one (1) additional year. The extension must be in writing, approved by Council Resolution and accepted in writing by the Manager. The Agreement may be likewise extended for additional one-year terms in similar fashion following the third year and consecutive years. Page 1 of 8 EXHIBIT A. II. Employment 2.1. Chief Executive Officer. The Manager is the chief executive officer of the City and shall faithfully perform the duties of the City Manager as prescribed in the job description, as set forth in the City Charter, City ordinances, this Agreement, and as may be lawfully assigned by the Council (collectively the "City Manager's Duties"). Further, the Manager shall comply with all state and federal law, the City's Charter, all City policies, rules, regulations and ordinances as they exist or may hereinafter be amended; and, all lawful Council directives (collectively "applicable laws and authorities"). All duties assigned to the Manger by the Council shall be appropriate to and consistent with the professional role and responsibility of the City Manager position. 2.2 Duties. The Council does hereby employ Manager as City Manager to perform the City Manager's Duties in accordance with ~nd pursuant to all Applicable Laws and Authorities and each of the following duties to the full extent not prohibited by or in material conflict with any existing provisions of the City's Charter or Applicable Laws and Authorities: a. Employ, on behalf of the City, all other employees of the City. b. Direct, assign, reassign and evaluate all of the employees of the City. c. Organize, reorganize and arrange the staff of the City. d. Develop and establish internal regulations, rules, and procedures which the Manager deems necessary for the efficient and effective operation of the City. e. Accept all resignations of employees of the City, except the Manager's resignation which must be accepted by the Council. The Manager shall perform the City Manager's Duties with reasonable care, diligence, skill and expertise. 2.3 Reassignment. The Manager cannot be reassigned from the position of the City Manager to another position without the Manager's prior express written consent. 2.4 Council Meetings. Except to the extent prohibited by or in material conflict with Applicable Laws and Authorities, the Manager, or the Manager's designee shall attend, and shall be permitted to attend, all meetings of the Council, both public and closed, with the exception of those closed meetings devoted to the consideration of any action or lack of action on this Agreement, or any amendment thereto, the Manager's evaluation, or for purposes of resolving conflicts between individual Council members. 2.5 Criticisms, Complaints, and Suggestions. The Council, individually and collectively, shall refer in a timely manner all substantive criticisms, complaints, and suggestions called to the Council's attention to the Manager for study and/or appropriate action, and the Manager shall refer the matter(s) to the appropriate City employee or shall investigate such matter(s) and inform the Council of the results of such efforts. Page 2 of 8 2.6 Indemnification. To the extent it may be permitted to do by applicable law, including, but not limited to Texas Civil Practice & Remedies Code Chapter 102, the City does hereby agree to defend, hold harmless, and indemnify Manager from any and all demands, claims, suits, actions, judgments, expenses and attorneys' fees incurred in any legal proceedings brought against Manager in the Manager's individual or official capacity as an employee and as City Manager, providing the incident(s), which is (are) the basis of any such demand, claim, suits, actions, judgements, expenses and attorneys' fees, arose or does arise in the future from an act or omission of Manager, as an employee of the City, acting within the course and scope of the Manager's employment with the City, excluding, however, any such demand, claim, suits, actions, judgments, expenses and attorneys' fees for those claims or any causes of action where it is determined that the Manager committed official misconduct, or committed a willful or wrongful act or omission, or any act or omission constituting gross negligence, or acted in bad faith; and excluding any costs, fees, expenses or damages that would be recoverable or payable under an insurance contract, held either by the City or by the Manager. The selection of the Manager's legal counsel shall be with the mutual agreement of the Manager and the City if such legal counsel is not also City's legal counsel. A legal defense may be provided through insurance coverage, in which case the Manager's right to agree to legal counsel provided for him will depend on the terms of the applicable insurance contract. To the extent this Paragraph 2.6 exceeds the authority provided and limitations imposed by the Texas Civil Practice & Remedies Code, Chapter 102, it shall be construed and modified accordingly. The provisions of this Paragraph 2.6 shall survive the termination, expiration or other end of this Agreement and/or the Manger's employment with the City. 2.7 Appropriation. The Council has appropriated, set aside and encumbered, and does hereby appropriate, set aside, and encumber, available and otherwise unappropriated funds of the City in an amount sufficient to fund and pay all financial obligations of the City pursuant to this Agreement. 2.8 Hours of work. The Manager acknowledges the proper performance of the City Manager's Duties 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 City 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 needs of the City or the normal conduct of the office of the City Manager. The Manager will devote full time and effort to the performance of the City Manager's Duties, and shall remain in the exclusive employee of the City during the term of this Agreement. III. Compensation 3.1 Salary. The City shall provide the Manager with an annual salary in the sum of One Hundred Ten Thousand and no/100 Dollars ($110,000). This annual salary rate shall be paid to the Manager in equal installments on the schedule as other City employees and shall be paid net of any applicable withholding or deductions required by the Applicable Laws and Authorities. 3.2 Salary adjustments. At any time during the term of this Agreement, the Council may, in its discretion, review and adjust the salary of the Manager, but in no event shall the Manager Page 3 of 8 be paid less than the salary set forth in Paragraph 3.1 of this Agreement, except by mutual agreement of the two parties. Such adjustments, if any, shall be made pursuant to lawful Council resolutions. In such event, the parties agree to provide their best efforts and reasonable cooperation to execute a new agreement incorporating the adjusted salary. 3.3 Car Allowance. The City shall provide the Manager with a monthly automobile allowance in the amount of Five Hundred and no/100 Dollars ($500.00) per month, which payment is in lieu of mileage expense reimbursement, gasoline, or other vehicle upkeep charges associated with travel required by his position within the limits of Lamar County, Texas. The Manager may be reimbursed by the City on a per mile basis for necessary business travel in the Manager's personal automobile to destinations outside Lamar County, Texas in accordance with City mileage reimbursement policy. 3.4 Paid leaves _ vacation, sick/personal and holiday. The Manager may take, at the Manager's choice, the same number of hours of vacation authorized for other administrative employees of the City, the leave to be in a single period or at different times. The vacation leave taken by the Manager will be taken at such time or times as will least interfere with the performance of the City Manager's Duties. The Manager is hereby granted the same sicklpersonalleave benefits as authorized by City Ordinance or Policy for other City employees; provided, however, the Manager shall be credited with ten (10) days sick leave balance and ten (10) days of vacation leave effective with the commencement date of this Agreement. The Manager shall observe the same legal holidays as provided by the City for its employees. 3.5 Benefits _ General. Unless expressly provided otherwise in the Agreement, in addition to those benefits specifically set forth herein, the Manager shall be entitled to the same benefits that are enjoyed by any other administrative employees of the City pursuant to all Applicable Laws and Authorities. 3.6 Insurance - Health. The City agrees to pay the premiums for health, hospitalization, vision, dental, long term disability and comprehensive medical insurance for the Manager and his immediate family pursuant to the group health care plan provided by the City for its employees. 3.7 Retirement Benefit. The City agrees to enroll the Manager into the applicable state or local retirement system and to make at least the same level of contributions for the Manager or on the Manager's behalf as the City does for its other full time employees consistent with all Applicable Laws and Authorities. 3.8 Moving Allowance. The City shall reimburse the Manager for all reasonable and necessary moving expenses to move from his current home in Brownwood, Texas to Paris, Texas up to a maximum moving allowance of Six-Thousand and No/100 Dollars ($6,000.00). Manager shall submit proper documentation of his moving expenses upon request for reimbursement. 3.9 Expenses. The City shall payor reimburse the Manager for reasonable expenses incurred by the Manager in the continuing performance of the Manager's duties under this Agreement. The City agrees to pay the actual and incidental costs incurred by the Manager for travel. Such actual or incidental costs may include, but are not limited to, airfare, rental cars, hotels and accommodations, meals, and other expenses incurred in the performance of the Page 4 of 8 business of the City. The Manager shall comply with all City policies, procedures and documentation requirements applicable to travel and expense reimbursement. 3.10 Bonds. The City shall bear the full cost of any fidelity or other bonds required of the Manager under any applicable laws and authorities. IV. Professional Growth 4.1 Professional Dues and Subscriptions. The City agrees to budget for and to pay for all reasonable professional dues and subscriptions of the Manager necessary for continuation and full participation in national, state, regional, and local associations and organizations as necessary and/or desirable for the good of the City through the Manager's continued professional participation, growth and advancement. 4.2 Professional Development Travel. The City agrees to budget for and to pay for all reasonable travel and subsistence expenses of the Manager for professional and official travel and meetings to adequately continue the professional development of the Manager and to pursue necessary official functions for the City, including but not limited to the ICMA Annual Conference, the Texas Municipal League, the Texas City Management Association, and such other national, regional, state and local government groups and committees in which the Manager is a member. 4.3 Professional Continuing Education. The City also agrees to budget for and to pay for all reasonable travel and subsistence expenses of Manager for short courses, institutes, and seminars that are necessary and/or desirable for the good of the City through the Manager's professional development. V. Performance Evaluation 5.1 Evaluation Process. The Council shall review the Manager's job performance at the end of his first six (6) months, on or before March 24, 2008, and then at the end of the Manager's first year, on or before October 27, 2008. Subsequent annual reviews of the Manager's performance shall be conducted on a date agreeable to the Manager and City Council. The annual performance reviews and evaluations shall be in writing and in accordance with criteria and format developed jointly by the Council and the Manager. The Council shall provide the Manager a reasonable and adequate opportunity to discuss with the Council and/or respond to the Manager's evaluation. 5.2 Confidentiality. Unless the Manager expressly requests otherwise in writing, except to the extent prohibited by or in material conflict with the Texas Open Meetings Act, the evaluation of the Manager shall at all times be conducted in closed session of the Council and shall be considered confidential to the maximum and full extent permitted by law. Nothing herein shall prohibit the Councilor the Manager from sharing the content of the Manager's evaluation with their respective legal counsel. 5.3 Modification of Evaluation Process. In the event the Council determines that the evaluation instrument, format and/or procedure are to be modified by the Council, and such modifications would require new or different performance expectations, then the Manager shall Page 5 of 8 be provided a reasonable period of time to demonstrate such expected performance before being evaluated. VI. Termination 6.1 Termination Events. This Agreement shall terminate upon any of the following: a. Mutual agreement of the Council and Manager in writing and signed by them; b. Retirement or death of the Manager; c. Termination of Manager's Employment for "good cause" (as defined in Paragraph 6.2 below); d. A Unilateral Severance (as defined and set forth in Section 6.3 below); or, e. Expiration of the term of this Agreement. 6.2 "Good Cause". For purposes of this Agreement the term "good cause" is defined as follows: a. Any willful, knowing, grossly negligent, or negligent breach, disregard or habitual neglect of any provisions of this Agreement, or any willful, knowing, grossly negligent, or negligent breach, disregard or habitual neglect of any duty or obligation required to be performed by City Manager under this Agreement or under the Charter and ordinances of the City and/or the laws of the United States or the State of Texas. b. Any misconduct of the City Manager involving an act of moral turpitude, criminal illegality (excepting minor traffic violations), or habitual violations of the traffic laws, whether or not related to City Manager's official duties hereunder. c. Any willful, knowing, grossly negligent, or negligent misapplication or misuse, direct or indirect, by City Manager of public orother funds or other property, real, personal, or mixed, owned by or entrusted to the City, any agency or corporation thereof, or the City Manager in his official capacity. 6.3 Unilateral Severance. As one of the termination events specified above in Paragraph 6.1, the Council may end the employment relationship and terminate this Agreement, at the pleasure of the Council, whether with or without good cause, upon written notice to the Manager as specified below and payment to the Manager of the Severance Amount (as defined below), the Severance Benefits (as defined below) and the Current Obligations (the "Unilateral Severance). If the Council determines that it desires a Unilateral Severance it shall provide written notice to the Manager at least thirty (30) days in advance of the effective date of such termination, which specifies: (a) the Council has voted to pursue a Unilateral Severance pursuant to this Paragraph 6.3 of the Agreement, (b) the effective date of the Unilateral Severance ("Severance Effective Date"), and (c) the City's commitment to pay the Severance Amount (including a specific line item breakdown of the items that constitute the total Page 6 of 8 Severance Amount). On or before the Severance Effective Date, the Manager may by written notice to the City direct that the Severance Amount be paid and payable in a manner directed by the Manager, provided that the total Severance Amount must be paid and payable on or before the first anniversary of the Severance Effective Date and there shall be no limitations on the City making deductions and withholdings required by law. The Manager shall inform the City whether the Severance Amount should be paid in lump sum, along with the appropriate IRS 1099 filing, or bi-weekly in the same manner he was paid while serving as Manager, subject to W-2 reporting and normal deductions and withholding. The "Severance Amount" shall include: (a) an amount equal to the value of nine (9) months of the Manager's then current salary to serve as the primary basis for the Manager's severance pay, plus (b) the value of any accrued but unused vacation, sick or attendance day leave up to the maximum accrual rates set forth in the City's Personnel Policies & Procedures Manual, as amended. Conditioned upon the City fulfilling its obligations to pay the Severance Amount, upon a Unilateral Severance, the Manager waives and releases the Manager's right to continued employment with the City and hereby waives, releases and agrees to hold the City of Paris, its elected officials, officers, employees, insurers and agents harmless from and against any and all claims he may have now or acquire in the future related to the Unilateral Severance, termination of employment with the City, the severance package, or any other matter arising from or related to this Employment Agreement. The Manager further agrees to execute an Agreement to reflect the waiver and release stated above. The parties further waive and release the right to an arbitration hearing or trial on the issue of good cause. In the event of a Unilateral Severance, the parties agree not to make disparaging comments or statements about each other. The provisions of this Section 6.3 of the Agreement shall survive the termination, expiration or other end of this Agreement and/or the Manager's employment with the City. VII. General Provisions 7.1 Complete Agreement. This Agreement sets forth and establishes the entire understanding between the City and the Manager relating to the employment of the Manager by the City. Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written signed agreement may amend any provision of this Agreement during the term of this Agreement; such amendments shall be incorporated and made a part of this Agreement. 7.2 Binding Effect. This Agreement shall be binding on the City and the Manager as well as their heirs, assigns, executors, personal representatives and successors in interest. 7.3 Savings Clause. If any term or provision of this Agreement, as applied to any party or to any circumstance, is declared by a court of competent jurisdiction hereof to be illegal, unenforceable or void in any situation and in any jurisdiction, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending provision in any other situation or in any other jurisdiction. The parties agree that the court or arbitrator making such determination shall have the power to reduce the scope, duration, area or applicability of the term or provision to delete specific words or phrases or to replace any illegal, unenforceable or void term or provision with a term or provision that is valid and unenforceable term or provision that is valid and enforceable and that Page 7 of 8 comes closest to expressing the intention of the invalid or unenforceable term or provision. 7.4 Nonwaiver Clause. No waiver of the either party's rights under this Agreement shall be deemed to have been made unless expressed in writing and signed by an authorized representative of the party. 7.5 Conflicts. In the event of any conflict between the terms, conditions and provisions of this Agreement and the Applicable Laws and Authorities, then, unless otherwise prohibited by law, the terms of this Agreement shall take precedence over the contrary provisions of the Applicable Laws and Authorities during the term of this Agreement. 7.6 Controlling Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas and shall be performable in Lamar County, Texas, unless otherwise provided by law. CITY OF PARIS, TEXAS Jesse James Freelen, Mayor ATTEST: Janice Ellis, City Clerk Executed this the _ day of ,2007. Executed this the 3/~~ay of ~,. ,2007. Page 8 of 8