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HomeMy WebLinkAbout11663RESOLUTION NO. 11663 A RESOLUTION APPOINTING JERRY M. PACHECO CITY MANAGER, APPROVING AN EMPLOYMENTAGREEMENT, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME WHEREAS, pursuant to Section 4 -1 of the Charter of the City of Pueblo, the City Council shall appoint a City Manager who shall be the executive head of the City's municipal government and fix the City Manager's salary at such amount as the City Council shall approve; and WHEREAS, pursuant to Section 4 -3 of the Charter of the City of Pueblo, the Council shall appoint the City Manager for an indefinite term and may remove the City Manager by majorityvote of its members; and WHEREAS, the City Council hereby determines that Jerry M. Pacheco has the requisite administrative and executive qualifications and actual experience and knowledge to perform the duties of the position of City Manager. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Jerry M. Pacheco is hereby appointed City Manager of Pueblo, a municipal corporation, for an indefinite term commencing August 1, 2009 to serve at the pleasure of the City Council. SECTION 2. The Employment Agreement and all its terms and conditions including the City Manager's salary, a copy of which is attached hereto and incorporated herein by reference, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute the Employment Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. This Resolution shall become effective upon final passage and approval. INTRODUCED: July 27. 2009 BY: Randy Thurston COUNCILPERSON APPR D' } �- PRESIDENTof City Council A77TSTED DY: CITY CLERK L F,'I t ' Background Paper for Proposed RESOLUTION AGENDA ITEM # P -1 DATE: July 27, 2009 DEPARTMENT: Law Department TITLE A RESOLUTION APPOINTING JERRY M. PACHECO CITY MANAGER, APPROVINGAN EMPLOYMENT AGREEMENT, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council appoint Jerry M. Pacheco as City Manager and approve an Employment Agreement between the City and Mr. Pacheco? RECOMMENDATION None. : e ne ► s The Resolution and Employment Agreement between the City and Jerry M. Pacheco appoints and employs Mr. Pacheco as City Manager for an indefinite term commencing August 1, 2009 to serve at the pleasure of the City Council. Mr. Pacheco will continue as the Director of the Department of Planning and Community Development ( "Director "). The City Charter provides that the City Manager may head one or more departments. His salary from August 1, 2009 is the same salary Mr. Galli would have received in 2009, $12,930 per month ($155,160 annualized). Council may, commencing 2010, annually adjust his salary. He will receive the same benefits as other management employees plus $500 monthly car allowance and $3,000 a year for life insurance premiums. The City Charter provides that the City Manager shall reside within the City of Pueblo. Under the Employment Agreement Mr. Pacheco is required to reside within the City of Pueblo on or before August 1, 2010. If Mr. Pacheco is either removed by City Council as City Manager without cause, or, if the position of City Manager is abolished as a result of a change in the form of government to Council- Mayor, and Mr. Pacheco does not continue his employment with the City as Director, he will receive severance pay equal to six (6) months salary, without benefits, except City will pay his COBRA continuation coverage premiums for family health and dental insurance for twelve (12) months. Mr. Pacheco's Employment Agreement is similar to and patterned after the Employment Agreements for Lee Evett and Dave Galli. FINANCIAL IMPACT See Background. EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT entered into as of August 1, 2009 between Pueblo, a municipal corporation (the "City ") and Jerry M. Pacheco (the "Manager "), WITNESSETH: WHEREAS, City desires to appoint and employ Manager as City Manager of City upon the terms and conditions contained herein, and WHEREAS, Manager is willing to accept such appointment and employment. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Manager agree as follows: 1. Emplovment City does hereby appoint and employ Manager as City Manager of the City to perform the functions and duties assigned to and imposed upon the City Manager by the Charter and ordinances of the City and to perform such other functions and duties as the City Council shall from time to time assign to Manager. Manager was previously appointed Director of the Department of Planning and Community Development ( "Director "). Subject to removal as provided in section 4 -5(b) of the Charter of the City, such appointment shall remain in effect and Manager shall continue to perform the duties of Director. Manager hereby accepts such appointment and employment as City Manager. 2. Term Manager is appointed and employed as City Manager for an indefinite term commencing August 1, 2009 (the "Effective Date "). Manager shall serve at the pleasure of the City Council. This Agreement may be terminated and Manager may be removed by the City Council as City Manager by majority vote of its members as provided in Section 4 -3 of the Charter of the City. 3. Salary For services performed as City Manager and Director, Manager shall be paid during 2009 $12,930.00 per month ($155,160.00 annualized) payable in accordance with City's normal payroll procedures. Manager's salary shall automatically be adjusted by the same percentage as the average of all City management employees' salary adjustments for each fiscal year commencing with fiscal year 2010. Such adjustment in salary shall occur at the same time as the management employees' annual salary adjustments take place. 4. Evaluation and Merit Increase City Council shall evaluate Manager's performance as City Manager on or before August 1, 2010 and each August 1 thereafter, and may evaluate Manager at any lesser intervals, in its sole discretion. The President of the City Council shall initiate such evaluations. The City Council shall have unrestricted access to relevant information to perform such evaluation. Evaluations shall be for the purpose of determining Manager's level of performance, attainment of goals and objectives, progress in professional development, and development of appropriate relationships, both within the City and with entities with which the City has or reasonably requires a policy or business relationship. Consideration maybe given once annually to a merit increase in Manager's salary, in addition to any automatic salary adjustment, upon evaluation by the City Council of Manager's performance as City Manager during the prior twelve (12) month period. 5. Severance Pay In the event that either (i) the position of City Manager is abolished or (ii) the Manager is removed as City Manager by City Council without cause, and Manager does not continue his employment with the City as Director, City will pay Manager severance pay equal to six (6) months salary, without benefits, except that City will pay Manager's COBRA continuation coverage premium for family health insurance and dental insurance for twelve (12) months. Severance pay and COBRA continuation coverage premiums will not be paid for removal for cause. "Cause" shall mean: conviction of a felony offense, conduct or behavior injurious to the best interests of the City, material breach of this Agreement, willful or intentional disregard of the lawful and reasonable instructions of the City Council, malfeasance or material misuse of City properties, funds or privileges. For purpose of clarification, severance pay and COBRA continuation coverage premiums will be paid if the removal or termination relates to disability, unsatisfactory performance or failure to meet goals, objectives and expectations, or other reason, that does not involve any of the factors recited in the previous sentence. 6. Resignation Manager may resign as City Manager by giving to the City at least sixty (60) days' advance written notice specifying the date of resignation. Upon resignation or the death of Manager, Manager shall not be entitled to any severance pay or COBRA continuation coverage premiums. 7. Benefits Except as otherwise provided herein, Manager shall receive not less than the same benefits provided by City to City's management personnel under City's personnel ordinances as amended from time to time, including: hospital and dental insurance, holidays, personal holidays, sick leave, funeral leave, family and medical leave, and vacation leave. Vacation leave shall accumulate at the rate of 14 hours for each completed month of service. 8. Life Insurance City will pay the premium not to exceed $3,000.00 per year, for life insurance (with accidental death and dismemberment coverage) insuring Manager. It is Manager's responsibility to obtain the insurance and submit to City an invoice for policy premiums. Should Manager terminate the life insurance policy for any reason, City is not obligated to continue to pay for said policy or to provide a new insurance policy. 9. Deferred Compensation Manager will be and remain a covered participant and member in the Colorado Public Employees' Retirement Association ("PERA ") and City will make all required employer contributions for Manager's participation in PERA. 10. Reimbursable Expenses Manager may be required as a condition of employment as City Manager to incur reasonable and necessary expenses in connection with his duties as City Manager. Manager shall be reimbursed by City for such expenses in accordance with the City's expense reimbursement policy, provided however, that before payment shall be made to Manager, all requests for reimbursement shall be approved by the President of the City Council. 11. Outside Activities Manager shall not spend any time in remunerated business or 2 activities outside this Agreement. 12. Professional Organizations Participation in professional organizations, appointive boards, and committees and voluntary programs by Manager are encouraged, provided they are consistent with the responsibilities of the City Manager of City. City will provide membership fees, conference fees, travel and subsistence expenses incurred in Manager's professional and official travel, meetings, and conferences within the scope of the annual budget. 13. Automobile and Equipment City will provide Manager either an automobile for his exclusive use, or automobile allowance of $500.00 per month, at Manager's option. If Manager is provided an automobile by City, the President of the City Council shall approve the year, make and model of such automobile. If the City provides an automobile allowance, Manager shall be responsible for all insurance, repairs, maintenance, gas and oil for his automobile. 14. Residency Manager understands and agrees that he will on or before August 1, 2010 reside within the corporate limits of the City and maintain such residence during his tenure of office as City Manager. 15. Other Terms and Conditions of Employment The City Council, after discussions with Manager, shall have the right to fix any other terms and conditions of employment, not inconsistent with or in conflict with the provisions of this Agreement, the City Charter of Pueblo Municipal Code, or any other law, as the City Council may determine in its sole discretion from time to time. All provisions of Colorado law, the Charter and Pueblo Municipal Code, and rules and regulations of the City relating to management employees as they now exist or are hereafter amended also shall apply to Manager as they apply to other management employees of the City generally. City will not, at any time during the effective term of this Agreement, reduce the salary of Manager, except to the degree of such a reduction across - the -board for all management employees of the City. 16. Indemnification To the extent permitted by law, City will defend, save harmless, and indemnify Manager from and against any tort, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of Manager's duties as City Manager, provided that the act or omission arose while the Manager was acting in good faith within the performance of his duties and course of his employment. Such indemnification shall apply regardless of whether the notice of filing of a lawsuit for such tort, claim, demand or other legal action occurs during or following Manager's employment as City Manager. City, in its sole discretion, may provide separate legal counsel for Manager and may compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered therein. This paragraph shall not be construed as applicable in matters arising out of the removal of Manager as City Manager or termination of this Agreement. 17. Bondin . City shall pay the full cost of fidelity or other bond required of Manager under any law or ordinance. 18. Arbitration Any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be settled by binding arbitration to be held in Pueblo, Colorado, in accordance with the rules then in effect of the American Arbitration Association, along with the rules for discovery and other matters consistent with the Colorado Rules of Civil Procedure then in effect. The arbitrator shall apply Colorado law and shall not vary any provision of this Agreement. The arbitrator may not award any punitive, exemplary or other damages, other than compensatory damages for breach of this Agreement. The arbitrator's decision shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of Colorado having jurisdiction. City and Manager shall each pay one -half of the cost and expense of such arbitration, and each shall separately pay their legal counsel's fees and expenses. 19. Compliance With TABOR Financial obligations of City under this Agreement payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. Failure to make such funds available in any future fiscal year will be deemed a removal of Manager without cause for the purposes of paragraph 5 hereof. 20. Miscellaneous (a) This Agreement shall constitute the entire agreement and understandings of the parties with respect to the subject matter hereof and supersedes all prior agreements, statements, understandings, communications, and promises between the parties concerning such subject matter whether oral or written. (b) This Agreement shall not be assignable by either party and shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives and successors. (c) This Agreement maybe modified or amended by mutual consent in writing signed by both parties. (d) If any provision of this Agreement is determined to be invalid or unenforceable, the remainder of the Agreement, or portion thereof, shall be deemed severable, shall not be effected by such determination, and shall remain in full force and effect. (e) This Agreement shall be governed in accordance with the laws of the State of Colorado. 21. Notices Any notice given or required to be given to Manager pursuant to this Agreement shall be given in person, or by first class mail to the last known address of the Manager maintained on file with the City Clerk's office. Notice to the City shall be given in person to the President of the City Council or in his/her absence to the City Clerk. EI IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written. PUEBLO, A MUNICIPAL CORPORATION Attest: City Ierk Approved as to form: City ttome By / !�� President of the City Coun