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HomeMy WebLinkAbout1995-088-06/20/1995-CITY MANAGER EMPLOYMENT AGREEMENT JOHN FISCHBACH RESOLUTION 95-88 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPOINTING JOHN F. FISCHBACH AS CITY MANAGER OF THE CITY OF FORT COLLINS AND AUTHORIZING THE MAYOR TO EXECUTE AN EMPLOYMENT AGREEMENT WITH MR. FISCHBACH WHEREAS,on October 4, 1994,Steven C.Burkett tendered his resignation as City Manager of the City, effective October 21, 1994; and WHEREAS, following the cessation of Mr. Burkett's employment with the City, the City Council began a selection process for a new City Manager, which process has culminated in the preparation of a proposed agreement with John F. Fischbach, attached hereto as Exhibit A and incorporated herein by this reference(the"Agreement"),whereby Mr.Fischbach would be employed as the new City Manager for the City,effective September 1, 1995; and WHEREAS, the City Council wishes to appoint John F. Fischbach as City Manager for the City of Fort Collins pursuant to the terms and conditions of the Agreement; and WHEREAS, on October 14, 1994, the City Council adopted Resolution 94-173, appointing Diane Jones to serve as interim City Manager pending the appointment of a new City Manager. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the Mayor is hereby authorized to execute the Agreement on behalf of the City. Section 2. That, pursuant to the authority vested in the City Council under Article III, Section 1 of the City Charter,John F.Fischbach is hereby appointed by the Council to serve as City Manager for the City of Fort Collins, pursuant to the terms and conditions contained in the Agreement, effective September 1, 1995, Section 3. That as of September 1, 1995, Diane Jones shall be relieved of any further duties of such office. Section 4. That the Council hereby commends Diane Jones for her exemplary service as interim City Manager and expresses its appreciation on behalf of the City for her assistance in facilitating the efficient delivery of administrative services during her term of service as Interim City Manager, and looks forward to her continuing contributions to the City. Passed and adopted at a regular meeting of the Council of the City of Fort Collins held this 20th day of June, A.D., 1995. Mayor ATTEST: ILI � :.iry Clerk CITY MANAGER EMPLOYMENT AGREEMENT THIS AGREEMENT is made and entered into this day of , 1995, by and between THE CITY OF FORT COLLINS, COLORADo. a municipal corporation (hereinafter referred to as "the City") , and JOHN F. FISCHBACH (hereinafter referred to as "Fischbach") W I T N E S S E T S WHEREAS, the City desires to employ the services of Fischbach as City Manager of the City as provided by Article III of the City Charter; and WHEREAS, it is the desire of the Fort Collins City Council (hereinafter referred to as "the Council") to provide certain compensation and benefits to Fischbach, establish the terms and conditions of his employment with the City, and, to the extent permitted by law, define the working relationship between the Council and Fischbach; and WHEREAS- Fischbach dessires to- accept employment with the City as City Manager in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the City and Fischbach agree as follows: SECTION I. DUTIES The City hereby agrees to employ Fischbach 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 Fischbach in the future. Fischbach acknowledges that as City Manager he is considered to be an unclassified 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. " B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the Council to remove Fischbach from the position of City Manager and terminate his 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 - e Fischbach 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 that Fischbach's employment with the City under this Agreement has been terminated. C. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Fischbach to resign at any time from his position as City Manager, provided that he gives the City Forty-five (45)_ days prior written notice o£ his intent_ to resign. D. Fischbach shall commence his employment with the City under this Agreement as the City Manager effective September 1, 1995. SECTION III. SALARY The City shall pay to Fischbach for his services as City Manager an annual base salary of Ninety-eight Thousand Seven Hundred Fifteen dollars ($-3K,7-15-. 00), payable in periodic installments 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 Fischbach. SECTION IV. VACATION AND SICK LEAVE A. Fischbach shall be granted the five (5) days of vacation leave given to full-time unclassified management employees of the City and shall accrue additional vacation leave equal to twenty (20) days per year at the bi-weekly accrual rate of 6. 16 hours. The five (5) days of vacation leave given to such unclassified City employees shall be credited to Fischbach initially upon the effective date of his employment with the City under this Agreement and thereafter in January of each year when such vacation leave is credited to unclassified management employees. Notwithstanding any City policy to the contrary, Fischbach shall have the right to accumulate and Carry 'over from year to year any and all vacation leave credited to him and be compensated in full for such vacation leave by the City when Fischbach's employment under this Agreement is terminated for any reason; however, such vacation leave paid to Fischbach shall not exceed a total of 1, 040 hours. B. Fischbach shall be credited -for and be entitled to receive those sick leave benefits provided to all full-time classified City employees. Fischbach shall not be entitled to be paid for any earned but unused sick leave upon resignation or termination from employment under this Agreement. 2 of 10 - SECTION V. DISABILITY HEALTH AND LIFE INSURANCE A. The City will provide and offer to Fischbach and his qualified dependents the same insurance benefit packages and plans it provides and offers to all its full-time classified 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. In addition to providing major medical insurance coverage to Fischbach and his dependents, the City shall pay in each year Fischbach is employed with the City under this Agreement, the reasonable cost of an annual physical examination of Fischbach by a qualified physician. SECTION VI. PENSION AND DEFERRED COMPENSATION BENEFITS The City agrees to execute all necessary agreements provided by the International City Managers Association Retirement Corporation (hereinafter referred to as "ICMA-RC") for Fischbach's participation in ICMA-RC's 401A qualified retirement plan, and, in addition to the base salary paid by the City to Fischbach, the City agrees to pay on Fischbach's behalf an amount equal to ten percent (10%) of Fischbach's base salary into such qualified retirement plan, in equal proportioned amounts each pay period, and to rollover into another qualified retirement plan or to transfer Fischbach's ownership in the plan to his succeeding employer's qualified plan upon Fischbach'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, Fischbach is eligible to participate in the City' s 457 deferred compensation plan through ICMA-RC. In such event, the City will match Fischbach's contribution to the plan in an amount not to exceed three percent (3%) of Fischbach's salary in any one pay period. The total contributiam to 3CMA RC's 457 deferred compensation plan is subject to the limits prescribed by the Internal Revenue Service. SECTION VII. DUES AND SUBSCRIPTIONS The City agrees to budget and pay for the professional dues and subscriptions of Fischbach necessary for his continuation and full participation in national, regional, state and local associations or organizations necessary and desirable for his continued professional participation, growth and advancement, and for the good of the City. - 3 of 10 - SECTION VIII. PROFESSIONAL DEVELOPMENT The City agrees to budget and pay for the reasonable travel and subsistence expenses of Fischbach for professional and official travel, meetings, and occasions adequate to continue the professional development of Fischbach 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 governmental groups and committees thereof which Fischbach serves as a member. The City also agrees to pay for the reasonable travel and subsistence expenses of Fischbach to attend continuing education short courses, institutes and seminars related to his profession. SECTION IX. 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 Fischbach. To the extent that the City' s Finance Director is authorized by applicable administrative procedures and policies of the City, the Finance Director is authorized to pay directly or reimburse Fischbach for such expenses upon receipt of proper documentation submitted not more often than monthly. SECTION X. COMMUNITY ACTIVITIES The City recognizes the desirability of Fischbach participating in service. and charitable organizations- i_n- the- community and in the event Fischbach becomes a member of such service and charitable organizations, the City will pay all reasonable expenses and fees related to such membership. SECTION XI. AUTOMOBILE From September 1, 1995, until January 31, 1996, the City shall make a City automobile available to Fischbach for his use. While Fischbach has use of the City automobile, the City shall be responsible for paying for the liability, property damage, and comprehensive insurance for the automobile, or for self-insuring for the same, and for the costs to purchase, operate, maintain, and repair said automobile. Any future provision of an automobile by the City to Fischbach must be approved by the Council. SECTION XII. MOVING AND RELOCATION EXPENSES A. The City shall reimburse Fischbach for any and all reasonable expenses he may directly incur with a moving and storage - 4 of 10 - company that has an office in Fort Collins, Colorado, in moving himself, his family, and their personal property from Vancouver, Washington, to Fort Collins, Colorado, which expenses shall include, but not be limited to, costs of packing, unpacking, hauling of property, storage of property, and insurance. B. In order to make Fischbach's move and relocation to Fort Collins as easy and as smooth as possible, the City agrees to pay Fischbach a relocation and living allowance of One Thousand Five Hundred Dollars ($1,500.00) per month until Fischbach completes the sale of his home in Vancouver, Washington, or until six (6) months from the date of this Agreement, whichever is sooner. The first monthly payment will be due upon the date of this Agreement with the remaining payments being due in monthly intervals thereafter. C. Until Fischbach's family has changed its permanent residence from Vancouver, Washington, to Fort Collins, Colorado, Fischbach shall be reimbursed by the City for the travel expenses of up to three (3) visits to Fort Collins for the purpose of facilitating his family's relocation to Fort Collins and to permit Fischbach to begin performing his duties as City Manager under this Agreement. Fischbach shall also be reimbursed for his reasonable food and lodging expenses in connection with such trips to Fort Collins for a total of up to twelve (12) working days. SECTION XIII. TERMINATION AND SEVERANCE PAY A. Pursuant to Section 4 of Article III of the City Charter, Fischbach, as an unclassified City employee, shall be considered as an at-will employee under this Agreement and, therefore, the Council may remove Fischbach from his 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. In the event that Fischbach is removed from his position as City Manager by the Council for "cause" in accordance with the method set forth in Section 4 of Article III of the City Charter, Fischbach shall only be entitled to such compensation as is required to be paid to him under Section 4 of Article III of the City Charter. As used in this Section XIII, the word "cause" shall mean: (1) failure of Fischbach to carry out his duties under this Agreement after written notice from the Council; (2) failure of Fischbach 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 Fischbach 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 brea(Ay by- FiscWV&ur or a term or- condition of this Agreement;- (&) any physical or mental disability that substantially limits a major life function of Fischbach and that results in his inability to carry out any essential function of his job as City Manager, with - 5 of 10 - or without reasonable accommodations by the City, provided that Fischbach' s disability entitles him to receive benefits under the City ' s disability plan or, if the disability is the result of a work-related injury, entitles him to benefits under the Colorado workers ' compensation laws for being permanently and totally disabled. C. In the event that Fischbach voluntarily resigns from his employment with the City under this Agreement, Fischbach shall not be entitled to receive any further compensation from the City accruing after the effective date of his resignation. Fischbach shall, however, be entitled to receive from the City all compensation and benefits that have accrued to him under this Agreement up to the effective date of his resignation. D. In the event that Fischbach is removed from his 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 XIII.B. above, the City shall continue to pay Fischbach bi-weekly his then-current salary as severance pay during the following additional periods of time: (1) if removal occurs during the first through twenty-fourth month of his employment under this Agreement, he shall continue to receive his salary for a period of six months from the effective date of his removal; (2) if removal occurs during the twenty-fifth through thirty-sixth month of his employment under this Agreement, he shall continue to receive his salary for a period of five months from the effective date of his removal; (3) if removal occurs during the thirty-seventh through forty-eighth month of his employment under this Agreement, he shall continue to receive his salary for a period of four months from the effective date of his removal; (4) if removal occurs during the forty-ninth through sixtieth month of his employment under this Agreement, he shall continue to receive his salary for a period of three months from the effective date of his removal; (5) if removal occurs during the sixty-first through seventy-second month of his employment under this Agreement, he shall continue to receive his salary for two months from the effective date of his removal or for the period of time that .he would be .entitled to receive his salary under Section 4 of Article III of the City Charter, whichever period of time is greater; and (6) if removal occurs during the seventy-third month or during any month thereafter of his employment under this Agreement, he shall only receive the additional salary he is entitled to be paid pursuant to Section 4 of Article III of the City Charter. In the event Fischbach obtains other employment during any period for which he is entitled under this paragraph to continue to receive his salary from the City as severance pay, the City's obligation to pay such salary shall be reduced by a direct one-to-one set-off for all amounts of salary, wages, consulting fees, or any other form of compensation that Fischbach earns, receives, or is entitled to receive in his new employment for such period. - 6 of 10 - E. Whether Fischbach voluntarily resigns from his position as City Manager under this Agreement or is removed from his position by the Council with or without cause, Fischbach shall retain all rights and benefits that may have accrued to him under any of the benefit, pension, or deferred compensation plans provided to him under this Agreement and that he 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 XIV. PERFORMANCE EVALUATION A. The Council shall review and evaluate the performance of Fischbach at least once annually in advance of the adoption of the City's annual operating and capital budgets. Said review and evaluation shall be in accordance with specific criteria developed jointly by the Council and Fischbach. Said criteria may be added or deleted as the Council may from time to time determine, in consultation with Fischbach. Further, the Mayor shall provide Fischbach with a summarized written statement of the findings of the Council's review and provide an adequate opportunity for Fischbach to discuss, his review- and- evaluation- with- the Council. B. The Council and Fischbach shall annually define such goals and performance objectives which they determine necessary for the proper operation of the City and for the attainment of the Council ' s policy objectives and shall further establish the relative priority among these various goals and objectives, which goals and objectives shall be reduced to writing. Such goals and objectives shall be generally obtainable within the time limitations as specified in the annual operating and capital budgets and related appropriations. C. In addition to the Council and Fischbach annually defining their goals and objectives as provided in Section XIV.B. above, the Council and Fischbach shall, within the first few days of the effective date of Fischbach's employment, meet to define the near-term goals and objectives deemed necessary by them for the proper operation of the City and for the attainment of Council's policy objectives until such time as the Council and Fischbach can define their annual goals and objectives for 1996 in accordance with this Section. D. In effecting the provisions of this Section, the Council and Fischbach mutually agree to abide by the provisions of applicable law. - 7 of 10 - SECTION XV. RESIDENCY REQUIREMENT Pursuant to section 1 of Article III of the City Charter, Fischbach agrees to reside within the City limits of the City of Fort Collins, Colorado, at all times during his employment under this Agreement. SECTION XVI. HOURS WORKED The Council recognizes that Fischbach is required to work and perform on behalf of the City other than an "eight-to-five" basis. As City Manager, he is subject to call 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 Fischbach to work out his schedulc and working hours using good professional judgment in establishing flexible working hours. SECTION XVII. INDEMNIFICATION To the extent the City is required and authorized to do so under the Colorado Governmental Immunity Act (C.R.S. §24-10-101, et seq. ) and Council Resolution 89-79, as amended by Council Resolution 94-101, the City shall indemnify and defend Fischbach for all civil claims brought against Fischbach arising out of an alleged act or omission by Fischbach occurring during the performance of his duties as City Manager, within the scope of his employment as City Manager, and provided that such act or omission is not willful and wanton. SECTION XVIII. BONDING The City will bear the- full- cost- of any fidelity or other bond required of Fischbach under any law or ordinance or as may be deemed desirable by the City. SECTION XIX. APPLICABILITY OF PERSONNEL POLICIES A. Fischbach hereby acknowledges receipt of the City's current Personnel Policies and Procedures. Fischbach also acknowledges that in his position as City Manager he is an unclassified City employee and as such, the City' s current Personnel Policies and Procedures do not expressly apply to him. Notwithstanding this fact, Fischbach agrees to be bound by and adhere to those provisions of the City's current Personnel Policies and Procedures that pertain to conduct, political activity, harassment, and employee safety, as currently set forth in Sections - 8 of 10 - VII and X of the city's current Personnel. Policies and Procedures and as they may be amended, modified, supplemented, rescinded, or otherwise changed at any time at the discretion of the City. Fischbach agrees that no other provisions of the City's current Personnel Policies and Procedures shall apply to him. B. In the event that any of the provisions of the City's current Personnel Policies and Procedures applied to Fischbach as set forth in Section XIX.A. above are inconsistent with or conflict with the terms of this Agreement, then the terms of this Agreement shall be controlling. SECTION XX. 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 Fischbach: John F. Fischbach (At his residential address stated in his most recent Personnel Action Form on file with the City) SECTION XXI. GENERAL PROVISIONS A. This Agreement constitutes the entire agreement between the parties concerning the rights granted herein and the obligations assumed herein. Any oral representation or oral modification concerning this Agreement shall be of no force or effect. Although the provisions set forth in the City's current Personnel Policies and Procedures that are applied to Fischbach as provided in Section XIX.A. above may be amended, modified, supplemented or rescinded at any time at the sole discretion of the City, the terms of this Agreement can be modified only by a writing signed by both the parties hereto. It is further understood and agreed by Fischbach that no representation, promise or other agreement not expressly contained herein has been made to induce the execution of this Agreement. 9 of 10 - B. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado and any judicial action brought by either of the parties hereto to enforce the terms and conditions- of- this Agreement and/or to recover damages for a breach of this Agreement, shall be brought in the Larimer County District Court in Fort Collins, Colorado. C. This Agreement is personal to the City and to Fischbach and may not be assigned or delegated by either party without the prior written consent of the other party. D. A party's failure to enforce any provision of this Agreement shall not be construed in any way as a waiver of any such provision, or prevent that party thereafter from enforcing each and every other provision of this Agreement. E. If any term or condition of this Agreement shall be declared void or unenforceable by any court of competent jurisdiction, such term or condition shall be deemed severable from the remainder of this Agreement, and the other terms and conditions of this Agreement shall continue to be valid and enforceable. F. This Agreement shall be construed as if prepared by both of the parties hereto. G. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation By: Mayor ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney John F. Fischbach - 10 of 10 -