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9. Interim City Manager ContractT Charles A. Harball Office of City Attorney City Attorney 201 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 TO: FROM: SUBJECT: MEETING DATE: 101 WIN], Mayor Tammi Fisher and Kalispell City Council Charles Harball, City Attorney Jane Howington, City Manager Tel 406.758.7709 Fax 406.758.7771 charball@kalispell.com Motion to Approve Employment Contract with Interim City Manager December 19, 2011 — Regular Council Meeting BACKGROUND: The Mayor and the City Attorney have negotiated with David Nielsen for the employment of his services to act as the Interim City Manager for a period of up to 150 days beginning January 1, 2012 until the City has hired the services of a permanent City Manager. Mr. Nielsen will be retiring as the City Attorney of the City of Helena on December 31, 2011. He has had the opportunity to act as Interim City Manager for Helena in the past and is well qualified and suited to act in this position for the City of Kalispell. The proposed employment contract is attached and contains the details of the agreement. RECOMMENDATION: That City Council move to approve the employment contract and authorize the Mayor to execute it on behalf of the City. FISCAL IMPACTS: There are sufficient funds in the City Manager budget to pay the costs of the employment contract and conduct the search for a permanent city manager. Respectfully submitted, Charles arbVl, City Attorney ane Howington, City ManagA EMPLOYMENT AGREEMENT for Interim City Manager THIS AGREEMENT, made and entered into this day of January, 2012, by and between the City of Kalispell, Montana, a municipal corporation, hereafter referred to as "City"; and David Nielsen, hereafter referred to as "Employee". WITNESSETH WHEREAS, the City Council desires to engage the services of Employee to provide Interim City Manager services to the City and to perform the duties of the City Manager; and WHEREAS, Employee is qualified and experienced to perform such services; and WHEREAS, Employee agrees to serve as the Interim City Manager of the City under the terms of this agreement. NOW, THEREFORE, the City and the Employee for the consideration herein set forth, mutually agree as follows: Section 1. Duties/Employment Status. The City agrees to employ Employee as the salaried Interim City Manager, to perform the functions and duties as are legally permissible and such other proper duties and functions as the City Council may assign. Section 2. Term. The term of this Agreement shall be effective on the date above written for the term of approximately 150 days or until such time as a permanent city manager can be selected and be available in the City. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City to terminate the services of Employee at any time, subject only to the provisions of the City Code. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from his position with the City. Section 3. Compensation and Benefits. Salary. The City agrees to pay Employee for his services at the rate of $3,000.00 per two week pay period for services performed, payable at the same time as other employees of the City are paid. Partial period services will be prorated based on days per pay period. Employee understands and agrees that the payments made by the Employer described above represents compensation and that, therefore, the Employer will withhold from the gross amount of these payment all taxes and other appropriate deductions that it would normally be withheld from the earnings of Employee, and that the Employer will report the gross amounts of those payments to governmental agencies as earnings of the individual to whom net payment is made as done in the past. Interim City Manager Agreement Page - I Between the City of Kalispell And David Nielsen Vacation and Sick Leave. Employee shall accrue vacation and sick leave benefits in accordance with the provisions of the City Code and regulations and rules of the City. Upon termination of this agreement, voluntary or otherwise, Employee shall be paid for the balance of unused vacation and sick leave in accordance with the State law, City Code and regulations and rules of the City. Retirement. The Employee understands that, as an employee of the City of Kalispell, he may otherwise be eligible to participate in the PERS retirement program. Employee hereby agrees that he shall not elect to pay into or receive a City match on the PERS retirement fund. Health Insurance. The Employee currently receives health insurance benefits and the parties therefore agree that the Employee shall not receive the benefits of health insurance provided to other City employees as a part of his compensation package. Telephone and Transportation. The City will provide a cellular telephone and service to the Employee during the term of this contract. When a City vehicle is available, the City will provide it to the Employee for his use on City business. In the event a City vehicle is not available, the City will reimburse the Employee for his transportation costs while on City business at the then current federal rate. Section 4. Other Terms and Conditions of Employment. Indemnification. City shall defend and indemnify the Employee against any action, including but not limited to any: tort, professional liability claim or demand, or other noncriminal legal, equitable or administrative action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of the Employee's duties as an employee or officer of the City, other than an action brought by the City against the Employee, or an action filed against the City by the Employee. City shall be responsible for and have authority to compromise and settle any action, with prior consultation with Employee, and pay the amount of any settlement or judgment rendered on that action. Employee shall cooperate fully with the City in the settlement, compromise, preparation of the defense, or trial of any such action. Bonding. The City shall acquire and bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. Application of Personnel Policy. All terms of the Kalispell City Personnel Policy, as now adopted or later amended, not inconsistent with or otherwise fully addressed in this agreement, shall apply to the Employee. Interim City Manager Agreement Page - 2 of Between the City Kalispell And David Nielsen Severability. If any provisions or any portion thereof contained in this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected, and shall remain in full force and effect. This Agreement shall be binding upon and inure to the benefits of the heirs, devisees, legatees or executors of the Employee. IN WITNESS WHEREOF, the City of Kalispell, on a vote of its City Council has caused this Agreement to be signed and executed in its behalf by its Mayor and duly attested by its City Clerk, on the day and year first above written. Tammi Fisher Mayor City of Kalispell State of Montana ATTEST: Theresa White City Clerk IN Interim City Manager Agreement Page - 3 Between the City of Kalispell And David Nielsen