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HomeMy WebLinkAbout2022-071-07/12/2022-APPOINTING KELLY DIMARTINO AS CITY MANAGER, APPROVING THE CITY MANAGER'S EMPLOYMENT AGREEMENT AND DI (2)CITY MANAGER EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the “Agreement”), is made and entered into this twelfth day of July, 2022 by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation, hereinafter called the “City” KELLY DIMARTINO (“Employee”). RECITALS: WHEREAS, pursuant to Article III of the Charter of the City of Fort Collins, the City Council (“Council”) is required to appoint a City Manager and establish the compensation for the City Manager; and WHEREAS, the City desires to employ the services of the Employee as City Manager of the City of Fort Collins as provided by the Charter of the City; and WHEREAS, it is further the desire of the Council to provide certain benefits, establish certain conditions of employment, set working conditions of employment, and set working conditions of the Employee; and WHEREAS, it is the desire of the Council to: (1) secure and retain the services of the Employee and to provide inducements for her to remain in such employment; (2) to make possible full work productivity by assuring the Employee’s morale and peace of mind with respect to future security; and (3) to provide a just means for terminating the Employee’s services at such time as the Employee may be unable to fully discharge her duties due to disability or when either the Employee or the City may otherwise desire to terminate her employment; and WHEREAS, the Employee desires to accept employment as the City Manager of the City upon the terms set forth herein. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: SECTION I. DUTIES The City hereby agrees to employ the Employee as the City Manager of the City to perform the functions and duties specified in Article III of the City Charter and to perform such other legally permissible and proper functions and duties as the Council may assign to the Employee in the future. The Employee acknowledges that as City Manager she is an unclassified management City employee. SECTION II. TERM A.As required by Section 4 of Article III of the City Charter, the term of this Agreement shall be an "indefinite term". For purposes of this Agreement, "indefinite" shall be deemed to mean "having no exact limits". EXHIBIT A 2 B. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the Council to remove the Employee from the position of City Manager and terminate her employment with the City under this Agreement at any time pursuant to and in accordance with the provisions of Section 4 of Article III of the City Charter. For purposes of this Agreement, the words "remove", "removed" and "removal", when used in the context of the Employee being removed from the position of City Manager by the Council under Section 4 of Article III of the City Charter, shall be deemed to also mean termination of the Employee’s employment with the City under this Agreement. C. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the Employee to resign at any time from her position as City Manager, provided that she gives the City forty-five (45) days prior written notice of her intent to resign. D. The Employee shall commence her employment with the City under this Agreement as the City Manager effective upon completion of the oath of office and after execution of this Agreement. SECTION III. BASE SALARY, CAR ALLOWANCE AND EQUIPMENT A. The City shall pay to the Employee for the Employee’s services as City Manager an annual base salary in the amount of Two-Hundred-Ninety-Five-Thousand-Dollars ($295,000.00) established according to ordinance approved by the City Council payable at the same time as other City employees are paid and subject to the customary tax deductions and withholdings required by law and any withholdings authorized by the Employee. Any adjustments to the Employee’s base salary shall be approved by ordinance based on annual performance reviews upon the customary schedule for executive employees. B. In addition to the base salary referenced in subsection III.A. above, the City shall pay the Employee a car allowance in the amount of One-Thousand-Dollars ($1,000.00) per calendar month. The Employee will acquire an environmentally-conscious vehicle in accordance with the City’s environmental and sustainability goals when circumstances permit. To the extent reasonably possible, the City will cooperate with the Employee in creating, maintaining, and providing to the Employee or her designees any records or documentation that the Employee may request in order to comply with the requirements of the Internal Revenue Code or related regulations regarding the tax treatment of the car allowance. C. In addition to the base salary referenced in subsection III.A. above, the City shall pay the Employee a telephone service allowance of One-Hundred-Dollars ($100.00) per calendar month. To the extent reasonably possible, the City will cooperate with the Employee in creating, maintaining, and providing to the Employee or her designees any records or documentation that the Employee may request in order to comply with the requirements of the Internal Revenue Code or related regulations regarding the tax treatment of the telephone service allowance. D. In addition to the foregoing allowances, the Employee shall receive a City-issued laptop or tablet computer for City business during her tenure as City Manager. EXHIBIT A 3 SECTION IV. VACATION AND SICK LEAVE A. The Employee shall accrue annual vacation leave at the maximum accrual rate available to City employees with more than twenty years of service, retroactive to July 1, 2022, and shall accrue throughout each calendar year and be pro-rated on a biweekly basis. Notwithstanding any City policy to the contrary, vacation leave accrued and unused by the Employee shall be subject to the following terms and conditions: (1) In order to qualify for any cash conversion of unused vacation leave, the Employee must use no less than the equivalent of three (3) weeks of vacation leave during each full year of employment. (2) At the end of each calendar year, the balance of the Employee's accrued, unused vacation leave remaining shall be carried over to subsequent years, up to a maximum carry-over accrual of 480 hours. With respect to accumulated carry-over vacation leave, upon satisfaction of the minimum exercised vacation leave required under sub-section (1) above, the Employee shall be entitled to receive the cash equivalent of all or any portion of such accrued, unused vacation leave up to a maximum of One-Hundred-Twenty (120) hours, based upon her most recent rate of pay as City Manager for the City. (3) Upon the cessation of the Employee's employment with the City for any reason, the Employee shall be compensated by cash payment for the total amount of the Employee’s accrued, unused vacation leave balance. The amount of said payment shall be based upon the Employee's then current hourly equivalent rate of pay. Any payment made to the Employee by the City under this provision shall be in addition to any amounts previously paid for accrued, unused vacation leave under subparagraph (2) above and any other amounts payable under this Agreement. To the extent permitted by law, the Employee may elect to direct that any such payment be deposited into the City’s 457 deferred compensation plan through the City’s retirement recordkeeper. B. The parties acknowledge that the Employee has been authorized to accrue more than Four-Hundred-Eighty (480) hours of unused vacation leave during the term of her employment with the City prior to the date effective date of this Agreement. With respect to prior- accumulated vacation leave, the Employee shall be entitled to receive the cash equivalent of all or any portion of such accrued, unused vacation leave up to a maximum of Three-Hundred (300) hours, based upon her most recent rate of pay as Interim City Manager for the City. To the extent permitted by law, the Employee may elect to have deposited into the City's 457 deferred compensation plan through the City’s retirement recordkeeper or its 401A qualified retirement plan, or such other qualified retirement plan as the Employee may designate, the cash equivalent of any portion of her accrued, unused vacation leave that is not carried over to subsequent years up to a maximum of Three-Hundred (300) hours, based upon her most recent salary as Interim City Manager for the City. EXHIBIT A 4 C. The Employee shall be credited for and be entitled to receive those sick leave benefits provided to all full-time unclassified City employees. The Employee shall not be entitled to be paid for any earned but unused sick leave upon resignation or termination from employment under this Agreement. SECTION V. DISABILITY If the Employee is permanently disabled or is otherwise unable to perform her duties because of sickness, accident, injury or mental incapacity or health for a period of four successive weeks beyond any accrued sick leave, the City shall have the option to terminate this Agreement, subject to the notice and severance pay requirements of Section XII below. However, the Employee shall be compensated for any accrued and unused vacation or unused holiday leave, and further compensated as a disabled employee pursuant to and in accordance with the provisions of the City’s Long Term Disability Insurance Plan. SECTION VI. DISABILITY, HEALTH, LIFE INSURANCE AND OTHER BENEFITS A. The City will provide and offer to the Employee and her qualified dependents the same insurance benefit packages and plans it provides and offers to all its full -time unclassified management employees, which benefit packages and plans currently include, without limitation, group life, accidental death and dismemberment insurance; long-term disability insurance; dental reimbursement plan; dental insurance; vision insurance; and major medical insurance. B. All provisions of the City Charter and Code, and regulations and rules of the City relating to other benefits and working conditions shall also apply to the Employee as she would to service area directors of the City, unless said benefits and working condi tions are otherwise specifically set forth in this Employment Agreement, in which case the terms of this Employment Agreement shall prevail. C. The City agrees to put into force and to make required premium payments for the Employee for insurance policies for life, accidental death and dismemberment, disability income benefits and medical health plan benefits covering the Employee and her dependents. These benefits shall be the same as those for all City employees. SECTION VII. PENSION AND DEFERRED COMPENSATION BENEFITS The City agrees to execute all necessary agreements provided by the City’s retirement recordkeeper for the Employee’s participation in a City-sponsored 401A qualified retirement plan, and, in addition to the base salary paid by the City to Employee, the City agrees to pay on the Employee’s behalf an amount equal to ten percent (10%) of the Employee’s base salary into such qualified retirement plan, in equally proportioned amounts each pay period. Effective July 1, 2022, the City agrees to make a matching contribution in the 401A plan equal to 100% of the Employee’s elective deferrals that do not exceed 3% of the Employee’s annual base salary. The City further agrees to roll over into another qualified retirement plan or to transfer the Employee’s ownership EXHIBIT A 5 in the 401A plan to her succeeding employer’s qualified plan upon the Employee’s resignation or termination, to the extent such a rollover or transfer is allowed by law and the terms of the City’s plan. In addition, the Employee is eligible to participate in the City’s 457 deferred compensation plan through its retirement recordkeeper. SECTION VIII. DUES AND SUBSCRIPTIONS The City agrees to budget and pay for the professional dues and subscriptions of the Employee necessary for her continuation and full participation in national, regional, state, and local associations or organizations necessary and desirable for her continued participation, growth, and advancement, and for the good of the City. SECTION IX. DEVELOPMENT The City agrees to budget and pay for the reasonable travel and subsistence expenses of the Employee for official travel, meetings, and occasions adequate to continue the development of the Employee and to adequately pursue necessary official and other functions for the City, including the annual conferences of the International City Management Association, the Colorado Municipal League, and such other national, regional, state and local government-related groups and committees thereof which the Employee serves as a member. The City also agrees to pay for the reasonable travel and subsistence expenses of the Employee to attend continuing education short courses, institutes, and seminars related to her service as City Manager for the City. SECTION X. GENERAL EXPENSES The City recognizes that there are expenses of a non-personal and generally job-related nature that are incurred from time to time by the Employee. To the extent that the City's Chief Financial Officer is authorized by applicable administrative procedures and policies of the City, the Chief Financial Officer is authorized to pay directly or reimburse the Employee for such expenses upon receipt of proper documentation submitted not more often than monthly. SECTION XI. COMMUNITY ACTIVITIES The City recognizes the desirability of the Employee participating in service and charitable organizations in the community and in the event the Employee becomes a member of such service and charitable organizations, the City will pay all reasonable expenses and fees related to such membership. If the Employee becomes a member of the board of directors of a community organization based on her position as City Manager, her duties as such director is within the scope of her duties as City Manager for purposes of the indemnification provision set forth in Section XV of this Agreement. SECTION XII. REMOVAL, TERMINATION AND SEVERANCE PAY A. Pursuant to Section 4 of Article III of the City Charter, the Employee shall be considered an at-will employee under this Agreement and, therefore, the Council may remove the EXHIBIT A 6 Employee from her position as City Manager at any time with or without cause in accordance with the method set forth in Section 4 of Article III of the City Charter. B. If the Employee is removed from her position as City Manager by the Council for "cause" [as defined in sub-sections (1) – (6) of this sub-section B] in accordance with the method set forth in Section 4 of Article III of the City Charter, the Employee shall only be entitled to such compensation as is required to be paid to her under Section 4 of Article III of the City Charter. As used in this Section XI, the word "cause" shall mean: (1) failure of the Employee to carry out her duties under this Agreement after written notice from the Council; (2) failure of the Employee to desist from any act or omission believed by the Council to be contrary to the best interests of the City after written notice to the Employee to desist; (3) conviction of a felony or a crime of moral turpitude; (4) dishonesty towards, fraud upon, or deliberate injury or attempted injury to the City; (5) the breach by the Employee of a term or condition of this Agreement; (6) any physical or mental disability that substantially limits a major life function of the Employee and that results in her inability to carry out any essential function of her job as City Manager, with or without reasonable accommodations by the City, provided that the Employee’s removal shall not affect the availability of any benefits for which the Employee is otherwise eligible under the City's disability plan or, if the disability is the result of a work -related injury, under the Colorado workers' compensation laws for being permanently and totally disabled. C. If the Employee voluntarily resigns from her employment with the City under this Agreement, the Employee shall not be entitled to receive any further compensation from the City accruing after the effective date of her resignation. The Employee shall, however, be entitled to receive from the City all compensation and benefits that have accrued to her under this Agreement up to the effective date of her resignation. D. If the Employee is removed from her position as City Manager by the Council in accordance with the method set forth in Section 4 of Article III of the City Charter for any reason other than for "cause" as defined in Section XI.B(1) – (6) above, the City shall continue to pay the Employee bi-weekly her then-current salary as severance pay for a period of six (6) months, payable in a single lump sum. In addition to severance pay as provided herein, medical insurance shall be provided through the end of the month in which the termination occurs. The Employee may elect to thereafter continue coverage following her termination. In the event the Employee elects to continue health insurance coverage, in addition to severance pay as provided in this sub-section D, the Employee shall receive a monthly payment from the City in a gross amount equal to one month of the then-current premium required for the Employee’s continued participation in the City’s health insurance program under the Consolidated Omnibus Budget Reconciliation Act (COBRA) at the coverage level in effect as of the date of the Employee’s removal from employment with the City. The payment for the COBRA premium shall terminate upon the Employee becoming eligible for participation in another employer-sponsored health insurance plan, but in no event shall the City’s COBRA premium contribution extend for more than six (6) months following the Employee’s termination from employment by the City. EXHIBIT A 7 E. In the event that the City at any time during the term of this Agreement reduces the salary or other financial benefits of the Employee in a greater percentage than is applicable to an across-the-board reduction for all employees of the City, or in the event that the City refuses, following written notice, to comply with any other provision benefitting the Employee herein, or the Employee resigns following written notice from the Council of removal other than for cause as described in subparagraph B. above, then the Employee may, at her option, be deemed to have been removed by the Council without cause for the purposes of this Section, in which event the Employee shall be entitled to the severance pay and monthly payment for the COBRA premium provided for above. F. Whether the Employee resigns from her position as City Manager under this Agreement or is removed from her position by the Council with or without cause, the Employee shall retain all rights and benefits that may have accrued to her under any of the benefit, pension, or deferred compensation plans provided to her under this Agreement and that she is entitled to retain in accordance with the provisions of such plans and applicable law as any City employee who has resigned or been terminated from employment with the City would be entitled to retain. SECTION XIII. RESIDENCY REQUIREMENT Pursuant to Section 1 of Article III of the City Charter, the Employee agrees to reside within the City limits of the City of Fort Collins, Colorado, at all times during her employment under this Agreement. SECTION XIV. HOURS WORKED A. The Council recognizes that the Employee is required to work and perform on behalf of the City other than on an "eight-to-five" basis. As City Manager, she is subject to calls at any time, is required to attend night meetings, and is required to participate in various other activities that benefit the City, often working long hours and at times that are not considered normal working hours. The Council expects the Employee to establish a schedule and working hours using good judgment appropriate to the needs of the City and that assures the Employee will faithfully perform her assigned duties and responsibilities. B. The Employee’s service to the City under this Agreement shall be the Employee’s primary employment. Recognizing that certain outside consulting or teaching opportunities provide indirect benefits to the City and the community as a whole, the Employee may accept limited teaching, speaking and pro-bono consulting opportunities with the understanding that any such arrangement must neither interfere with nor create a conflict of i nterest with her responsibilities under this Agreement. The Employee will be expected to use available leave hours while engaged in teaching, speaking and consulting activities. Nothing herein shall prevent the Employee from receiving third-party reimbursement of actual expenses incurred by the Employee while engaged in teaching, speaking and consulting activities. EXHIBIT A 8 SECTION XV. INDEMNIFICATION The City shall defend, save harmless and indemnify the Employee against any tort, liability claim or demand or other legal action, including attorney fees, expert witness fees and costs of suit, whether groundless or otherwise, arising out of an alleged act or omission arising out of the course and scope of the Employee’s duties as City Manager as provided in Article III, Section 2 of the City Charter. The City may compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered thereon, provided that no judgment or admission of wrongdoing shall be agreed to by the City without the Employee’s written consent. SECTION XVI. BONDING The City will bear the full cost of any fidelity or other bond required of the Employee under any law or ordinance or as may be deemed desirable by the City. SECTION XVII. ANNUAL APPROPRIATION All financial obligations of the City under this Agreement shall be subject to the Council's annual appropriation of the funds necessary to satisfy such obligations. SECTION XVIII. NOTICES Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given on the date of service if served personally, or three (3) days after mailing if mailed by first-class mail, registered or certified, postage prepaid, return receipt requested, and addressed as follows: If to the City: City of Fort Collins Mayor P.O. Box 580 Fort Collins, CO 80522 If to the Employee: Kelly DiMartino 5919 O’Leary Court Fort Collins, Colorado 80525] SECTION XIX. GENERAL PROVISIONS A. It is the intent of the parties that this Agreement and the appointment of the Employee as City Manager be, in all aspects, in accordance with the requirements and provisions of the City’s Charter relating to such position. If any provision of this Agreement is capable of two (2) constructions, only one (1) of which complies with the Charter, the construction that complies with the Charter shall control. If any provision of the Agreement conflicts with the Charter, the Charter shall control, and the conflicting provision of this Agreement shall be of no effect. In the EXHIBIT A 9 latter event, an invalid provision of this Agreement shall not affect the other provisions of the Agreement, it being the intent of the parties that the provisions of this Agreement shall be severable. B. The text herein shall constitute the entire Agreement between the parties. C. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of the Employee. SECTION XX. OTHER TERMS AND CONDITIONS OF EMPLOYMENT. A. The Council, in consultation with the Employee, shall establish any such other terms and conditions of employment as it may determine from time to time, relating to the performance of the Employee, provided that such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the City Charter or any other law. The City and the Employee specifically acknowledge the processes for performance evaluations as set forth in City Council Resolution No. 2019-099, which may be amended from time to time by Council. B. All provisions of the City Charter and Code, and regulations and rules of the City relating to vacation and sick leave, retirement and pension system contributions, holidays and other fringe benefits (including, without limitation, health and life insurance programs, social security, and disability benefits, if any), working conditions as they now exist or hereafter may be amended and provisions governing accrual and payment for vacation upon termination of employment, also shall apply to the Employee as she would to department heads and service directors of the City, unless said benefits are specifically provided for herein. IN WITNESS WHEREOF, the City has caused this Agreement to be signed and executed in its behalf by its Mayor and duly attested by its City Clerk, and the Employee has signed and executed this Agreement, both in duplicate, the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation By: __________________________________ Jeni Arndt, Mayor ATTEST: ______________________________ Anissa Hollingshead, City Clerk _______________________________ Kelly DiMartino, Employee EXHIBIT A 10 APPROVED AS TO FORM: ________________________ Ian D. McCargar, Special Counsel Town Attorney Town of Windsor, Colorado EXHIBIT A