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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. Page 2 of 10 (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. Page 3 of 10 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. Page 4 of 10 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 Page 5 of 10 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 Page 6 of 10 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. Page 7 of 10 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. Page 8 of 10 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. Page 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 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 Page 10 of 10