HomeMy WebLinkAbout2004-150-12/21/2004-APPOINTING DARIN A. ATTEBERRY AS CITY MANAGER OF THE CITY OF FORT COLLINS AND AUTHORIZING THE MAYOR RESOLUTION 2004-150
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPOINTING DARIN A. ATTEBERRY AS CITY MANAGER OF THE
CITY OF FORT COLLINS AND AUTHORIZING THE MAYOR TO EXECUTE
AN EMPLOYMENT CONTRACT WITH MR. ATTEBERRY
WHEREAS, John F. Fischbach tendered his resignation as City Manager of the City,
effective June 16, 2004; and
WHEREAS, in anticipation of Mr. Fischbach's departure, the City Council adopted
Resolution 2004-065 on May 25, 2004, appointing Darin A. Atteberry to serve as Interim City
Manager pending the appointment of a new City Manager.
WHEREAS,the City Council thereafter began a selection process for a new City Manager,
which process has culminated in the preparation of a proposed agreement,attached hereto as Exhibit
"A"and incorporated herein by this reference(the"Agreement"),whereby Darin A.Atteberry would
be employed as the new City Manager for the City, effective December 21, 2004; and
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That, pursuant to the authority vested in the City Council under Article 11,
Section I of the City Charter,Darin A. Atteberry 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 December 21, 2004.
Section 2. That the Mayor is hereby authorized to execute the Agreement on behalf of the
City,with such minor modifications as the Mayor,in consultation with the City Attorney,may deem
necessary and advisable to effectuate the purposes of this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 21st
day of December, A.D. 2004.
Mayor
ATTEST:
City Clerk O
EXHIBIT "A"
CITY MANAGER EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 2 1" day of December, 2004, by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter
referred to as "the City"), and DARIN A. ATTEBERRY (hereinafter referred to as "Atteberry").
WITNESSETH :
WHEREAS,the City desires to employ the services of Atteberry 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 Atteberry, establish the tenns and
conditions of his employment with the City, and,to the extent permitted by law, define the working
relationship between the Council and Atteberry; and
WHEREAS, Atteberry desires 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 Atteberry agree as follows:
SECTION I. DUTIES
The City hereby agrees to employ Atteberry 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 Atteberry in the future.
Atteberry 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 Atteberry 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 Atteberry 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 Atteberry'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 Atteberry to resign at any time from his position as City Manager, provided that he gives the City
forty-five (45) days prior written notice of his intent to resign.
D. Atteberry shall commence his employment with the City underthis Agreement as the
City Manager effective December 21, 2004.
SECTION III. SALARY AND CAR ALLOWANCE
A. The City shall pay to Atteberry for his services as City Manager an annual base salary
of One Hundred Forty-nine Thousand Two Hundred Eighty and no/100 Dollars ($149,280.00),
commencing December 22, 2004, which shall be 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 Atteberry. Any subsequent modifications of
Atteberry's salary shall be accomplished by ordinance and shall be incorporated into this Agreement
by this reference without the necessity of further modification of this Agreement.
B. In addition to the base salary referenced in subsection III(A)above,the City shall pay
Atteberry a car allowance in the amount of Seven Hundred Fifty and no/]00 Dollars ($750.00)per
month. To the extent reasonably possible, the City will cooperate with Atteberry in creating,
maintaining,and providing to Atteberry or his designees any records or documentation that Atteberry
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.
SECTION IV. VACATION AND SICK LEAVE.
A. Atteberry shall be granted thirty(30)days of annual vacation leave, commencing as
of the first pay period in January, 2005. Five (5) days of such vacation leave shall be credited to
Atteberry as of the first full pay period of each year. The remaining balance of twenty five(25)days
of annual vacation leave shall accrue throughout the remainder of each such calendar year at the bi-
weekly accrual rate of 7.69 hours. Notwithstanding any City policy to the contrary, vacation leave
accrued and unused by Atteberry shall be subject to the following terms and conditions:
(1) At any time during the term of this Agreement, but no more than
twice annually,Atteberry may elect to receive the cash equivalent of a portion of his
accrued,unused vacation,based upon his then current rate of pay;provided,however,
that no more than eighty (80) hours of accrued, unused vacation leave may be
converted to a cash payment in any given calendar year.The amount of said payment
shall be based upon Atteberry's current rate of pay at the time of conversion.
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(2) At the end of each calendar year,the balance ofAtteberry's accrued,
unused vacation leave remaining after any such cash conversion shall be carried over
to subsequent years, up to a maximum accrual of 780 hours. Any balance in excess
of 780 hours that exists as of the last day of the final pay period of the calendar year
shall be forfeited by Atteberry. For the purposes of this provision, the "final pay
period of the calendar year" shall mean the last pay period that begins in such year.
(3) Upon the cessation ofAtteberry's employment with the City,whether
by termination, death, disability, resignation or otherwise, Atteberry shall be
compensated by cash payment for the total amount of his accrued, unused vacation
leave balance. The amount of said payment shall be based upon Atteberry's then
current rate of pay. Any payment made to Atteberry 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.
B. The parties acknowledge that Atteberry has accrued approximately six hundred fifty
(650) hours of unused vacation leave during the term of his employment with the City prior to the
date of execution of this Agreement. Atteberry shall be entitled to:
(1) Carry over to subsequent years up to one hundred sixty hours of such
accrued,unused vacation leave,up to the maximum accrual of seven hundred eighty
(780) hours referenced in Section 1V. A.(2) above; and/or
(2) Receive the cash equivalent of all or any portion of such accrued,
unused vacation leave which has not been carried over to subsequent years, based
upon his most recent rate of pay as an Assistant City Manager for the City; and/or
(3) To the extent permitted by law, have deposited into the City's 457
deferred compensation plan through ICMA-RC orits 401 A qualified retirement plan,
or such other qualified retirement plan as Atteberry may designate, the cash
equivalent of any portion of his accrued, unused vacation leave that is not carried
over to subsequent years, based upon his most recent salary as Assistant City
Manager for the City.
Atteberry shall notify the City of which of the foregoing options he elects to pursue no later
than forty-five (45) calendars after the date of execution of this Agreement.
C. Atteberry shall be credited for and be entitled to receive those sick leave benefits
provided to all full-time unclassified management employees of the City. Atteberry shall not be
entitled to be paid for any earned but unused sick leave upon resignation or termination from
employment under this Agreement.
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SECTION V. DISABILITY, HEALTH AND LIFE INSURANCE
A. The City will provide and offer to Atteberry and his qualified dependents the same
insurance benefit packages and plans it provides and offers to all full-time unclassified management
employees ofthe City,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 coverage to the Employee and his dependents under the City's
medical health plan, the City shall pay, up to a maximum of Eight Hundred Seventy-five Dollars
($875.00) per calendar year, the cost of one or more medical examinations per year by a licensed
physician or physicians of the Employee's choice. These examination(s) may include any tests or
consultations recommended by the examining physician(s). This provision shall be applied
retroactively, commencing January 1, 2003. The foregoing maximum amount of Eight Hundred
Seventy-five Dollars($875.00)shall be increased annually, commencing January 1,2005,to reflect
any inflation in medical costs, as indicated by the U.S. Department of Labor, Bureau of Labor
Statistics, Consumer Price Indexes for Medical Care. The City's obligation to pay the cost of any
test or consultation which exceeds the foregoing maximum amount, or the cost of treating any
medical condition discovered during the course of such physical examination(s) shall be limited to
the benefits available under the City's then current medical health plan. In order to determine which
medical expenses of the Employee are to be paid under this provision, the Employee shall first
submit all such expenses to the third party administrator of the City's medical health plan, and any
expenses for medical examinations, tests or consultations that are properly determined by such
benefits administrator to be ineligible for payment under the City's then current medical health plan
shall be paid by the City under this provision, up to the foregoing maximum dollar amount.
SECTION VI. PENSION AND DEFERRED COMPENSATION BENEFITS
The City agrees to execute all necessary agreements provided by the International City
Management Association Retirement Corporation (hereinafter referred to as '7CMA-RC") for
Atteberry's participation in ICMA-RC's 401 A qualified retirement plan, and,in addition to the base
salary paid by the City to Atteberry,the City agrees to pay on Atteberry's behalf an amount equal to
ten percent (10%) of Atteberry's base salary into such qualified retirement plan, in equally
proportioned amounts each pay period, and further agrees to roll over into another qualified
retirement plan orto transfer Atteberry's ownership in the plan to his succeeding employer's qualified
plan upon Atteberry's resignation or termination, to the extent such a rollover or transfer is allowed
bylaw and the terms of the City's plan. In addition, Atteberry is eligible to participate in the City's
457 deferred compensation plan through ICMA-RC. If Atteberry does so participate, the City will
match Atteberry's contribution to the plan in an amount not to exceed three percent (3%) of
Atteberry's salary in any one pay period. The total contribution to ICMA-RC's 457 deferred
compensation plan is subject to the limits prescribed by the Internal Revenue Service.
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B. In the event that Atteberry wishes to make a contribution of his own to the above-
referenced 401A qualified retirement plan, in addition to the City's contribution to said plan, and
Atteberry so notifies the council in writing, the Council shall, within thirty (30) days of its receipt
of such notice, execute all agreements, resolutions and/or other documents required by law or by
ICMA-RC in order to accommodate such request. The amount of employee contribution to said plan
authorized by the Council shall be the amount requested by Atteberry or the maximum amount
allowed by law, whichever is less.
SECTION VII. DUES AND SUBSCRIPTIONS
The City agrees to budget and pay for the professional dues and subscriptions of Atteberry
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.
SECTION VIII. PROFESSIONAL DEVELOPMENT
The City agrees to budget and pay for the reasonable travel and subsistence expenses of
Atteberry for professional and official travel, meetings, and occasions adequate to continue the
professional development of Atteberry 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 Atteberry serves as a member. The City also
agrees to pay for the reasonable travel and subsistence expenses of Atteberry 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 Atteberry. 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 Atteberry for such expenses upon receipt of proper
documentation submitted not more often than monthly.
SECTION X. COMMUNITY ACTIVITIES
The City recognizes the desirability of Atteberry participating in service and charitable
organizations in the community and in the event Atteberry becomes a member of such service and
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charitable organizations, the City will pay all reasonable expenses and fees related to such
membership.
SECTION XI. TERMINATION AND SEVERANCE PAY
A. Pursuant to Section 4 of Article III of the City Charter, Atteberry, as an unclassified
City employee, shall be considered as an at-will Atteberry under this Agreement and,therefore, the
Council may remove Atteberry 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 Atteberry 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,Atteberry 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 XIll, the word "cause" shall
mean: (])failure of Atteberry to carry out his duties under this Agreement after written notice from
the Council; (2) failure of Atteberry 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 Atteberry 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 Atteberry of a term or condition of this Agreement;
(6) any physical or mental disability that substantially limits a major life function of Atteberry and
that results in his inability to carry out any essential function of his job as City Manager, with or
without reasonable accommodations by the City,provided that Atteberry'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 Atteberry voluntarily resigns from his employment with the City
under this Agreement, Atteberry shall not be entitled to receive any further compensation from the
City accruing after the effective date of his resignation. Atteberry 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 Atteberry 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 XI.B. above, the City shall continue to pay
Atteberry 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 ofhis employment under
this Agreement,he shall continue to receive his salary for a period of one year 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 nine months
from the effective date of his removal; and (3) if removal occurs after the thirty-sixth month of his
employment under this Agreement,he shall continue to receive his salary for a period of six months
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from the effective date of his removal. Said amounts shall be in lieu of, and not in addition to, the
amount of compensation required to be paid to Atteberry under Section 4 of Article III of the City
Charter. In the event that the City at any time during the term of this Agreement reduces the salary
or other financial benefits of Atteberry 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 benefiting Atteberry herein, or Atteberry resigns
following written notice from the Council of termination other than for cause as described in
subparagraph A.above,then Atteberry may,at his option,be deemed to have been terminated by the
Council without cause for the purposes of this Section, in which event Atteberry shall be entitled to
the severance pay provided for above.
E. Whether Atteberry voluntarily resigns from his position as City Manager under this
Agreement or is removed from his position by the Council with or without cause, Atteberry 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.
F. Medical insurance shall be provided through the end of the month in which the
termination occurs. Atteberry may elect to thereafter continue coverage by paying the premium in
effect at the time of termination under the same terms and conditions and according to the same
provisions of law which are applicable to all employees of the City who,upon termination, elect to
continue medical coverage at their own expense.
SECTION XII. PERFORMANCE EVALUATION
A. The Council shall review and evaluate the performance of Atteberry 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
Atteberry. Said criteria may be added or deleted as the Council may from time to time determine,
in consultation with Atteberry. Further, the Mayor shall provide Attebeny with a summarized
written statement of the findings of the Council's review and provide an adequate opportunity for
Atteberry to discuss his review and evaluation with the Council.
B. The Council and Atteberry 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.
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SECTION XIII. RESIDENCY REQUIREMENT
Pursuant to Section 1 of Article III of the City Charter,Atteberry agrees to reside within the
City limits of the City of Fort Collins, Colorado, at all times during his employment under this
Agreement.
SECTION XIV. HOURS WORKED
The Council recognizes that Atteberry 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 Atteberry to work out his schedule and working hours using good professional judgment in
establishing flexible working hours.
SECTION XV. 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 Chapter 2,Article VII,Division 6 of the Code of the
City Fort Collins,the City shall indemnify and defend Atteberry for all civil claims brought against
Atteberry arising out of an alleged act or omission by Atteberry 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 XVI. BONDING
The City will bear the full cost of any fidelity or other bond required of Atteberry under any
law or ordinance or as may be deemed desirable by the City.
SECTION XVII. APPLICABILITY OF PERSONNEL POLICIES
A. Atteberry hereby acknowledges receipt of the City's current Personnel Policies and
Procedures. Atteberry agrees to be bound by and adhere to those provisions of the City's current
Personnel Policies and Procedures that apply to unclassified management employees of the City,
as they may be amended, modified, supplemented, rescinded, or otherwise changed at any time at
the discretion of the City.
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B. In the event that any of the provisions of the City's Personnel Policies and Procedures
are inconsistent with or conflict with the terms of this Agreement,then the terms of this Agreement
shall be controlling.
SECTION XVIII. 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 XIX. 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 ifmailed 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 Atteberry: Darin A. Attebeny
(At his residential address
stated in his most recent
Personnel Action Form on
file with the City)
SECTION XX. 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 Attebeny 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 Attebeny that no
representation,promise or other agreement not expressly contained herein has been made to induce
the execution of this Agreement.
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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 Latimer County District Court in Fort Collins, Colorado.
C. This Agreement is personal to the City and to Atteberry 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 terns 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:
City Attorney
Darin A. Atteberry
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