02. City Manager Employment AgreementCharles A. Harball Office of City Attorney
City Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
101WHINLAWNWO 31 M W
TO: Mayor Tammi Fisher
and Kalispell City Council
FROM: Charles Harball, Interim City Manager
Tel 406.758.7709
Fax 406.758.7771
charball@kalispell.com
SUBJECT: Review and Approval of City Manager Employment Agreement
MEETING DATE: April 16, 2012 — Regular Council Meeting
BACKGROUND: Following the formal search to fill the vacant City Manager position,
the City Council interviewed three candidates and concluded that it wished to negotiate
an employment agreement with Douglas Russell. Contract parameters were provided by
council members to the Mayor and the Interim City Manager and discussions took place
with Mr. Russell. At the conclusion of the negotiations the following salient terms were
reached:
0 $105,000 annual salary with no bonus alternatives
0 $400 monthly vehicle allowance
® 12% contribution to ICMA retirement system in lieu of the PERS system
® 100% paid health insurance for himself and family
® Up to $20,000 loan for relocation costs
® 6 months salary severance in event of termination without just cause
® 15 day vacation leave credit
® COLA at average increase afforded other City employees
A copy of the negotiated employment agreement, signed by Mr. Russell is attached
hereto.
RECOMMENDATION: That City Council give consideration to and approve the
employment agreement with Mr. Russell.
FISCAL IMPACTS: The fiscal impacts are as set forth in the terms of the contract.
Respectfully submitted,
Charles Hall, Interim City Manager
This Employment Agreement ("Agreement"), dated as of April 16, 2012, (the "Effective
Date"), is between the City of Kalispell, Montana, a Municipal Corporation (the
"Employer"), and Douglas Russell, an individual ("Employee"). The City and Russell are
collectively referred to in this Agreement as the "Parties."
WHEREAS, the City desires to employ Russell as the City Manager, and Russell
desires to accept that offer of employment, as set forth in the Agreement.
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
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This agreement shall remain in full force in effect from the effective date of April 16,
2012, until terminated by the Employer or Employee as provided in Section 9, 10, or
of this agreement.
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Employer agrees to employ Douglas Russell as City Manager to perform the functions
and duties specified in any relevant City Charter, Municipal Code, Resolution, or State
Statute governing the City of Kalispell and to perform other legally permissible and
proper duties and functions.
A. Base Salary: Employer agrees to pay Employee an annual base salary of $105,000,
payable in installments at the same time that the other management employees of the
Employer are paid.
B. Employer agrees to increase the base salary on January 1 of each year by the rate
of the average increase afforded to employees of the municipality, inclusive of cost of
living increase and any step or merit increase. This agreement shall be automatically
amended to reflect the salary adjustments that are identified in this paragraph.
The Employer agrees to pay 100% of the premium for health and dental insurance for
the Employee and his family.
A. Upon commencing employment, the Employee shall be credited with fifteen (15)
days of vacation leave. The Employee shall then accrue sick and vacation leave on an
annual basis at the rate provided to employees that have been with the City of Kalispell
for 16 years.
B. In the event the Employee's employment is terminated, either voluntarily or
involuntarily, the Employee shall be compensated for all accrued leave, and other
benefits to date.
The Employer agrees to pay to the Employee, during the term of this Agreement and in
addition to other salary and benefits herein provided, the sum of $400 per month,
payable monthly, as a vehicle allowance to be used to purchase, lease, or own, operate
and maintain a vehicle. The Employee shall be responsible for paying for liability,
property damage, and comprehensive insurance coverage upon such vehicle and shall
further be responsible for all expenses attendant to the purchase, operation,
maintenance, repair, and regular replacement of said vehicle. The Employer shall
reimburse the Employee at the IRS standard mileage rate for any business use of the
vehicle that requires travel outside of Flathead County.
Employer agrees to execute all necessary agreements provided by ICMA Retirement
Corporation [ICMA-RC] or other Section 457 deferred compensation plan for
Employee's continued participation in said supplementary retirement plan and, in
addition to the base salary paid by the Employer to Employee, Employer agrees to pay
an amount equal to 12% of Employee's base salary or maximum dollar amount
permissible under Federal and state law into the designated plan on the Employee's
behalf, in equal proportionate amount each pay period.
1. Employer agrees to budget for and to pay for professional dues and subscriptions of
the Employee necessary for continuation and full participation in national, regional,
state, and local associations, and organizations necessary and desirable for the
Employee's continued professional participation, growth, and advancement, and for the
good of the Employer.
3. Employer agrees to budget for and to pay for travel and subsistence expenses of
Employee for professional and official travel, meetings, and occasions to adequately
continue the professional development of Employee and to pursue necessary official
functions of Employer, including, but not limited to the state league of municipalities,
and such other national, regional, state, and local governmental groups and committees
in which Employee serves as a member, institutes, and seminars that are necessary for
the Employee's professional development and for the good of the Employer.
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1. The majority of the governing body votes to terminate the Employee at a duly
authorized public meeting.
2. If the Employer, citizens or legislature acts to amend any provisions of City Charter,
Municipal Code, or enabling legislation pertaining to the role, powers, duties, authority,
responsibilities of the Employee's position that substantially changes the form of
government or Employee's working conditions, the Employee shall have the right to
declare that such amendments constitute termination.
3. If the Employer reduces the base salary, compensation or any other financial benefit
of the Employee, such action shall constitute a breach of this agreement and will be
regarded as a termination.
4. If the Employee resigns following an offer to accept resignation, whether formal or
informal, by the Employer as representative of the majority of the governing body that
the Employee resign, then the Employee may declare a termination as of the date of the
suggestion.
5. Breach of contract declared by either party with a 30-day cure period for either
Employee or Employer. Written notice of a breach of contract shall be provided in
accordance with the provisions of Section 19.
Severance shall •- paid to the Employee when employment is terminated as defined in
•t •
If the Employee is terminated, the Employer shall provide a minimum severance
payment equal to six (6) month's salary at the current rate of pay and health insurance
as provided in Section 4. This severance shall be paid in a lump sum unless otherwise
agreed to by the Employer and the Employee.
The Employee shall also be compensated for all accrued sick leave and vacation time.
The Employer agrees to make a contribution to the Employee's deferred compensation
account on the value of this compensation calculated using the rate ordinarily
contributed on regular compensation.
The following are circumstances where the Employer is not required to provide
severance pay under this agreement:
1. If the Employee is terminated because of a conviction of a felony;
2. death;
3. disability for more than 6 months;
4. malfeasance in office;
5. abuse of public office for personal gain.
In the event that the Employee voluntarily resigns his/her position with the Employer,
the Employee shall provide a minimum of 60 days notice unless the parties agree
otherwise.
Employer shall annually review the performance of the Employee prior to the evaluation
which shall be mutually agreed upon by the Employer and Employee. The process at a
minimum shall include the opportunity for both parties to: (1) prepare a written
evaluation, (2) meet and discuss the evaluation, and (3) present a written summary of
the evaluation results. The final written evaluation should be completed and delivered
to the Employee within 30 days of the evaluation meeting.
It is recognized that the Employee must devote a great deal of time outside the normal
office hours on business for the Employer, and to that end, Employee shall be allowed
to establish an appropriate work schedule, though it is generally expected that the
Employee is available during normal business hours .
The employment provided for by this Agreement shall be the Employee's primary
employment. Recognizing that certain outside consulting or event promotion
opportunities provide indirect benefits to the Employer and the community, the
Employee may elect to accept limited consulting or event promotion opportunities with
the understanding that such arrangements shall not constitute interference with nor a
conflict of interest with his responsibilities under this Agreement.
Employee agrees to establish residence within the corporate boundaries of the local
government, within six (6) months of employment, and thereafter to maintain residen
within the corporate boundaries of the local •• I
As consideration for accepting this employment agreement, the City agrees to loan the
Employee the sum of up to TWENTY THOUSAND ($20,000) DOLLARS for the
payment of relocation costs. For each full pay period that the Employee is employed by
the City, the City shall forgive 1/52 of the debt. If the Employee voluntarily leaves the
employment of the City prior to the full forgiveness of the debt, the entire balance owing
shall become due and payable and may be deducted by the City from sums it may owe
to the Employee. If the Employer terminates employment of the Employee, Employer
shall forgive the full remainder of the debt.
Beyond that required under Federal, State or Local Law, Employer shall defend, save
harmless and indemnify Employee 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 Employee's duties as City Manager or
resulting from the exercise of judgment or discretion in connection with the performance
of program duties or responsibilities, unless the act or omission involved willful or
wanton conduct. The Employee may request and the Employer shall not unreasonably
refuse to provide independent legal representation at Employer's expense and
Employer may not unreasonably withhold approval. Legal representation, provided by
Employer for Employee, shall extend until a final determination of the legal action
including any appeals brought by either party. The Employer shall indemnify employee
against any and all losses, damages, judgments, interest, settlements, fines, court costs
and other reasonable costs and expenses of legal proceedings including attorneys fees,
and any other liabilities incurred by, imposed upon, or suffered by such Employee in
connection with or resulting from any claim, action, suit, or proceeding, actual or
threatened, arising out of or in connection with the performance of his or her duties.
Any settlement of any claim must be made with prior approval of the Employer in order
for indemnification, as provided in this Section, to be available.
Employee recognizes that Employer shall have the right to compromise and unless the
Employee is a party to the suit which Employee shall have a veto authority over the
settlement, settle any claim or suit; unless, said compromise or settlement is of a
personal nature to Employee. Further, Employer agrees to pay all reasonable litigation
expenses of Employee throughout the pendency of any litigation to which the Employee
is a party, witness or advisor to the Employer. Such expense payments shall continue
beyond Employee's service to the Employer as long as litigation is pending. Further,
Employer agrees to pay Employee reasonable consulting fees and travel expenses
when Employee serves as a witness, advisor or consultant to Employer regarding
pending litigation.
Employer shall bear the full cost of any fidelity or other bonds required of the Employee
under any law or ordinance.
The Employer, only upon agreement with Employee, shall fix any such other terms an't
conditions of employment, as it may determine from time to time, relating to the
performance of the Employee, provided such terms and conditions are not inconsiste
with or in conflict with the provisions of this Agreement, the City of Kalispell Code,
Charter, • any • law.
Except as otherwise provided in this Agreement, the Employee shall be entitled to the
highest level of benefits that are enjoyed by other appointed officials, appointed
employees, department heads or general employees of the Employer as provided in the
Charter, Code, Personnel Rules and Regulations or by practice.
Notice pursuant to this Agreement shall be given by depositing in the custody of the
United States Postal Service, postage prepaid, addressed as follows:
EMPLOYER: City of Kalispell;
EMPLOYEE: Doug Russell, City Manager; City of Kalispell;
Alternatively, notice required pursuant to this Agreement may be personally served in
the same manner as is applicable to civil judicial practice. Notice shall be deemed
given as of the date of personal service or as the date of deposit of such written notice
in the course of transmission in the United States Postal Service.
A. Integration. This Agreement sets forth and establishes the entire understanding
between the Employer and the Employee relating to the employment of the Employee
by the Employer. Any prior discussions or representations by or between the parties
are merged into and rendered null and void by this Agreement. The parties by mutual
written agreement may amend any provision of this agreement during the life of the
agreement. Such amendments shall be incorporated and made a part of this
agreement.
B. Binding Effect. This Agreement shall be binding on the Employer and the Employee
as well as their heirs, assigns, executors, personal representatives and successors in
interest.
C. Effective Date. This Agreement shall become effective on April 16, 2012.
D. Severability. The invalidity or partial invalidity of any portion of this Agreement will
not effect the validity of any other provision. In the event that any provision of this
Agreement is held to be invalid, the remaining provisions shall be deemed to be in full
force and effect as if they have been executed by both parties subsequent to the
expungement or judicial modification of the invalid provision.
IN WITNESS THEREOF, the Parties have executed this Agreement as of the date first
above written.
NEi
Mayor: