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Restated Employment Agreement For Tommy Gonzalez

Restated Employment Agreement for Tommy Gonzalez

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Estefania
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4K views13 pages

Restated Employment Agreement For Tommy Gonzalez

Restated Employment Agreement for Tommy Gonzalez

Uploaded by

Estefania
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF or read online on Scribd
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AMENDED AND RESTATED CITY MANAGER EMPLOYMENT AGREEMENT ‘THE STATEOF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OFELPASO § THIS AMENDED AND RESTATED CITY MANAGER EMPLOYMENT AGREEMENT ("Agreement* on and after the effective date of this Amended and Restated Agreement) is made and entered into effective the 11th day of December 2018, by and between the City of El Paso, Texas, a Texas municipal corporation (the *City") and Tomés Gonzalez (the “Manager"). WITNESSETH: WHEREAS, on May 20, 2014 the City and the Manager en‘ered into a City Manager Employment Agreement which was subsequently amended on October 14, 2014 and August 31, 2015; WHEREAS, the Orginal Initial Term under such Agreement provided that is would end on June 22,2619, and pursuant tothe provisions of the Initial Agreement, as amended, it was to extend and automatically renew for a one-year term, fllowed by additional evergreen renewals, unless the ity were to elect to not renew the Agreement as provide therein; ‘WHEREAS, in anticipation of the Manager's continuing employment as is provided for ‘inthe current Agreement by and between the parties, the City and Manager desir to further amend “the Agreement, as amended, as reflected in this Amended and Restated City Manager Employment ‘Agreement, which amends and restates the Employment Agreement by and between the parties in its entirety as set forth herein. NOW, THEREFORE, the City and the Manager, for and in consideration of the terms, conditions and provisions hereinafter established have agreed, and do hereby agree as follows: 1. TERM 1.1 Term. The term of this Agreement is amended and restated to provide thatthe Original Initiel Term of this Agreement shall end on June 22, 2019 and a new Initial Renewal “Term of five (5) years shall begin on June 23, 2019 (the "Commencement Date") and end on June 22, 2024 (creating the “Initial Renewal Term"). Thereafter, the Agreement will automatically renew for terms of two (2) years “Renewal Term”) unless Council noifes the Manager not less than 120 days prior to the expiration of any Renewal Term that it intends not to renew the ‘Agreement. [Employment Agreement, T. Gonzalez, BLF, final, 12.11.18 Page i of 13, IL. EMPLOYMENT 21 Chief Administrative Officer/Duties. The Manages isthe chief administrative officer ofthe City and sal athilly perform the duties ofthe Manager as prescribed inthe City Charter, City ordinances and as may be lawflly assigned by the Council. The Manager shall comply with (collectively “Applicable Laws and Authorities"): stte and federal lav; the City’s Charter, The City’s Bihes Ordinance, all Cty resolutions, policies, rues, regulations and ordinances as they exist or may hereinetr be amended; and, all lawful Council dretives. All duties assigned to the Manager by the Council shall be appropriate to and consistent with the professional role and responsibility of the City Manager poston. 22 Couneil Meetings. Except tothe extent prohibited by or in material conflict with ‘Applicable Laws and Authorities, the Manager or the Manager’ designee shall atend, and shall bbe permitted to attend, all meetings of the Council, both public and closed, with the exception of those closed meetings devoted to the consideration of any action or lack of action on this ‘Agreement, or any amendment thereto or for purposes of resolving conflicts between individual ‘Council members. 23 Indemnification. 1. Legal Proceedings. To the extent permitted by applicable law, including, but not limited to Texas Civil Practice & Remedies Code Chapter 102, the City agrees to defend, hold harmless, and to indemnify Manager from any demands, claims, suits, actions, judgments, expenses, costs, and attomeys’ fees arising out of, related to, or incured in any legal proceedings brought against Manager his individual capacity in his official capecity as Manage, or in his general capacity a @ City employee, in which the factual allegations underlying any legal proceeding arise out of or relate to, an alleged act or omission by Manager, acting within the course and scope of his employment by the City This clause (23 a) excludes a duty to indemnify Manager against any legal proceeding where itis finally determined by aribunal of competent jurisdiction that Manager ‘committed official misconduct, committed a willful or wrongful act or omission, committed an act or omission held to be gross negligence, or acted in bed faith, but this exclusion will not apply until after the exhaustion ofall appeals in any legal proceeding contemplated by this clause (23 2), This clause (23 a) also excludes a duty to indemnify Manager for any costs, fees, expenses, settlements, or damages, recoverable or payable under an insurance contrat held by the City oF by Manager, but the City agrees to pay any deductible or self-insured retention amount required ‘under any insurance policy that corresponds to any legal proceeding under this clause (23a). To the exten thatthe provisions inthis paragraph (2.3 a) exceed the authority provided and limitations imposed by to Texas Civil Practice é& Remedies Code Chepter 102, the provisions will be construed and modified accordingly. b. Ethics Proceedings. Notwithstanding any other provision ofthis Section, the Manager may request reimbursement fora legal defense should the Manager be named or have been named during the term of his employment as a respondent in a matter referred to the ethics review ‘commission as a whole or otherwise be the respondent in a hearing before the ethies review ‘commission. The City recognizes that there may be situations in which the employment of counsel to assist the Manager andthe presentation ofa vigorous defense can assist inthe protection of the Employment Agreement, T. Gonzalez, BLF, fina, 12.11.18 Page2 of 13, process, which ison behalf of the public interest. The City Council may vote to reimburse the “Maneger for such defense, in accordance with the law, ifthe City Council finds thatthe provision ‘of such defense isin the City’s legitimate interest, and the Manager was acting in god faith and ‘within the scope of his authority. «. Selection of Counsel. Manager will have the right to select legal counsel to defend him in any legal or ethical proceeding contemplated by this paragraph (2.3), but Managet’s selection of counsel will be subject to approval ofthe City. The City’s approval will not be unreasonably ‘withheld. Nothing in this Agreement willbe construed to prevent Manger from retaining private ‘counsel at his own expense to represent him in any legal or ethical proceeding. In addition, a legal defense may be provided to Manager through insurance coverage, in which case the parties’ _respectve rights to select and to approve legal counsel willbe subject to the terms ofthe applicable insurance contact. 4. Insurance Coverage. Nothing inthis Section affects or serves to limit the coverage that ‘may apply to the benefit or protection of Manager by any insurance policy held by and in effect for any purpose or reason, to include purposes and reasons including coverage for acts and ‘omissions actionable under the Texas Tort Claims Act The Manager may seek coverage and protection as may be available to him, to include but not be limited to the provision of « legal defense, direct from the City's insurance carrer and the Manager is not required to obtain any permission from the City Council or any officer or employee ofthe City toseek such coverage and protection. Nothing inthis Section requires the ity to continue to procure any insurance held by the City on the effective date of this Agreement. The City will give sixty (60) days notice to Manager before any such insurance is canceled or not renewed or replaced with substantially similar coverage from a different carrier. «¢. Survival. The provisions ofthis Paragraph 2:3 shall survive the termination, expiration or other end of this Agreement, the Manager's employment withthe City, or both. 24 Hours of Work. The Manager acknowledges the proper performance of the Managers Duis require the Manager to generally observe normal business hours and wil lso often require the performance of necesary services outside of normal business hours. The “Manager agrees to devote such additional time as is necessary for the full and proper performance the Manegers Duties and tht the compensation herein proved includes compensation forthe performance ofall such services. However, the City intends that reasonable time off be pemited the Manager ws is customary for exceuiveexempt employers 50 long asthe time off doesnot interfere with the normal conduct ofthe office ofthe Cty Manager. Except as permitted in Paragraph 2.5, the Manager will devote fll ime and effort to the perfomance of the City Manager's Dlies and shall remain inthe exclusive employ ofthe ity during the term ofthis ‘Agreement. 25 Outside Consultant Activities. Notwithstanding anything to the contrary in this ‘Agreement, afer providing waitten notice tothe Mayor and City Council and review and response by the City Attomey, the Manager may serve a5 a consultant and/or undertake speaking ‘engagements, writing, teaching or other professional duties and obligations for other than the City Employment Agreement, T. Gonzalez, BLF, fat, 12.11.18 Page3 of and be paid for such activities (referred to collectively herein as "Consulting Services"); provided that these Consulting Services do not conflict or interfere with the Manager's professional responsibilities to the City and there is no expense to the City. Consulting Services provided by the Manager under the terms and conditions of this paragraph must be consistent with state and federal lw. 2.6 Investments. Manager shall not individually, a a partner, joint venturer, officer or shareholder investor participate in any business venture conducting business in the corporate limits of the City of El Paso, except as to stock ownership in any company whose capital stock is publicly held and regularly traded on the New York Stock Exchange, the American Stock Exchange or the NASDAQ without the prior writen consent of Council. Manager further agrees, xcept forthe Manage’ personal residence or residential property acquired or held for future wse sa personal residence, not to invest in any other real estate or property improvements with the corporate limits ofthe City of El Paso. 2.7 Residence. Manager shall maintain Manager's permanent residence within the City of El Paso during the term of this Agreement. IN, COMPENSATION 34. Salary. The City shall provide the Manager with an annual base salary inthe sum of Three Hundred Thirty Thousand Seven Hundred Fifty and 00/100 dollars ($330,750.00). This snnual base salary rate shall be paid to the Manager in equal installments on the same schedule as other City employees and shal be paid net of any applicable withholding or deductions required by the Applicable Laws and Authorities. 32 Salary Adjustments. ‘| _Innoevent shall the Manager's salary be reduced during the term ofthis Agreement cexcopt by mutual written agreement of the parties; or in the event ofan across the board reduction of wages for all non-collective bargaining City employees, in which event the Employee's salary will be reduced by the same percentage. b, The Manager shall be eligible to receive across the board pay increases or other similar pay increases that the City Council provides to other administrative, non-collective bargaining employees of the City, and shall also be eligible to receive service time pay increases inthe same manner that other administrative non-colietive bargaining employees of the Cty are eligible to receive based on designated amounts of service time. Additionally, in the event the City Council provides any other new type of benefit to its other administrative, non-collective bargaining employees ofthe City, the Manager shall also be eligible to receive such benefit inthe same manner. & The Manager shall be eligible for an annual merit increase equal to five percent (6%) of the Manager's annual base salary ifthe Manager receives an “exceeds standards” rating fon the annual performance evaluation performed as set forth in Paragraph V below. Merit Employment Agreement, T. Gonzalez, BL, inl, (2.11.18, Page 4 of 13, ‘increases shall be effective at the start of the next pay period following the approval of the performance evaluation by the City Council or at the start of the fiscal year immediately following the annual performance evaluation, whichever occur first 4 During the term of this Agreement and commensurate with the conduct of the ‘Manager's annual performance evaluation, the City shall annually conduct a market-based review of the base salary of the Manager in comparison to the base salary of the city managers in Arlington, TX, Ausin, TX, Dallas, TX, Fort Worth, TX, San Antonio, TX, Oklahoma City, OK, Phoenix, AZ and Tucson, AZ (“Comparison Cities”), and E1 Paso, TX (“Benchmark City”). Intte event thet after adding a merit increase, if any is eamed, to the base salary, the Manager's base salary is below the average base salary of the Comparison Cities the Manager's base salary will be increased to the amount of the average base salary of the Comparison Cities effective atthe start of the pay period following the approval ofthe performance evaluation by the City Council ‘rat the start of the fiscal year immediately following the review, whichever occurs firs. 33. Vacation, Sick Leave and Holidays. 4% Cominuing Accrual and Use of Leave, The Manager shall continue to accrue sick leave benefits as authorized by El Paso Civil Service Rules and continue to be granted one hundred sixty (160) hours of vacation leave every fiscal year. The Manager shall maintain his vacation ard sick leave, in the amounts reflected in te official recor ofthe City, that he has acerued or been granted through the date of this Amendment to the Agreement. The vacation leave taken by the Manager willbe taken at such time or times as will least interfere with the performance of bis duties, The Manager may use such sick leave, including the use of sick leave as personal time, in ‘accordance with ElPaso Civil Service Rules and Procedures. b. _Onetime Grant for Initial Renewal Term. Upon the start of the Initial Renewal ‘Term under this Amended and Restated Agreement on June 23, 2019, the Manager will be granted 1 one-time additonal amount of one hundred sixty (160) hours of vacation and eighty (80) hours of sick leave as ofthe pay period in which June 23, 2019 falls. The use of such leave is subject.0 the provisions under paragraph 3.3 a, andthe maximum accrual under paragraph 3.3 c. © Maximum Accrual, The Manager may be granted and acerue up to the hourly equivalent of six months of vacation at anytime during the term ofthis Agreement. Any vacten leave credit in excess of this maximum amount shall be permanently withdrawn from the ‘Manager's leave balances in the pay period in which his anniversary date of employment falls, ‘whic, for ths purpose, is declared to be June 23% or upon the termination ofthis Agreement. The “Manager may acerve an unlimited amount of sick leave, to include amounts of sick leave granted in ump sums. In he event ofthe termination of this Agreement and the City is obligated under a provision in Paragraph VI to make a lump sum payment forthe Managers vacation and sick leave, the maximum amount of sich payment shall not exceed the hourly equivalent of six months of ‘cation and six mons of sick leave, and after making a required lump sum payment fr up ix months of the Employee's sick leave, the Manager hes remaining granted and/or accrued sick Teave, the Manager wil be entitled to use any or all amounts of such sick leave forthe purpose of adding to his credited service as may be allowed under te City’s Pension Ordinance and Penson Plan. “Employment Agreement, T. Gonzalez, BL, fil 12.11.18 Page Sof 8 4, Holidays. The Manager shall observe the same legal holidays as provided by the City for its non-colletive bargaining administrative employees. 34 Health Insurance. Manager's eligibility for enrollment in the City’s insurance plans for health, hospitalization, vision, dental and comprehensive medical inaurance for the ‘Manager shall continue pursuant to the group healthcare plan provided by the Cty for its non collective bargaining administrative employees, es they may be amended from time to time during the term of this Agreement. alias, Texas. The City shall bear the cost ofthe core components of an Executive Health Exam and such additional services as may be medically indicated. All follow up treatments, procedures, prescriptions, ete. will be provided to Manager in accordance with the terms and conditions ofthe ‘Manager’s chosen health insurance plan coverage. The City shall bear the expense of travel and ‘accommodations to Dallas by Manager forthe annual examination, as well as any follow-up travel ‘and eccommodations costs as may be necessary in an amount not to exceed $2,500 annually. All time necessary to undergo the physical and any follow up treatments, procedures, et. shall be deducted from Manager's granted and/or accrued sick leave. It is understood and agreed to by the partes that the City bears no responsibility for continuing any coverage or payments under this ‘paragraph as part of any severance payment that may be owed to Manager. 3.5. Life Insurance, During the Manager's continued employment with the City, the CCity shall pay the ennual premium forthe purchase of a 30-year level premium term life insurance ‘policy on the life of the Manager in the amount of $5 millon, such premium payment constituting ‘additional taxable compensation to Manager. The term life insurance policy provided here under shall be owned by the Manager or such Third Party as Manager may designate, with the Manager having the sole right to determine the beneficiaries under the life insurance policy. Ifthe Manager chooses o obtain any additional life insurance or to continue paying the annual premiums after his employment with the City has ended, he is solely responsible for payment of the premiums on ‘such a plan, It is understood and agreed to by the partes thatthe City bears no responsibilty for ‘continuing any payments or coverage under this paragraph as part of any severance payment that ‘may be ovied to Manager. 3.6 Disability Insurance. During the Manager's continued employment with the City, the City wil, in accordance with and as allowed by lav, reimburse the Manager for the costs of premiums for any long term and/or short-term disabilty insurance policies (not o include « Cty ‘offered coverage) that the Manager may wish to procure to cover himself which provides for a ‘monthly benefit that is no more than eighty (80%) of the Manager’s monthly salary. It is understood and agreed to by the parties thatthe City bears no responsibility for continuing any payments or coverage under this paragraph as part of any severance payment that may be owed to Manager. 3.7 Retirement Benefit. The Manager is entitled to participate inthe City's Pension Plan according to the terms of the Plan. Election to participate must have been made upon signing, Employment Agreement, T. Gonzalez, BLF, final, 12.11.18 Page 6 of 13 this Agreement in2014, Inthe eventof the temination, expiration or other end ofthis Agreement, the Managers employment withthe City, or both (hereaier “Termination” prior to June 22,2021 or such other dats thatthe Menager vests in the City's Pension plan based on the computation of time in service under the City’s Pension Plan if such date is earlier than June 22, 2021 (heater “Vesting Date”), th City sll pay a lump sum tothe Manager an amount thet is equal othe ‘mount of contributions the City would have otherwise made tothe Pension Fund on behalf ofthe Manager based om his salary atthe time of the Termination forth time between the date of the ‘Termination and the Vesting Date. 3.8 Deferred Compensation Payments. On or after the effective date of this ‘Amended and Restated Agreement and on or before December 31, 2018, the Manager will receive lump sum contribution from the City in the amount of $20,000.00 to a 401(a) Deferred ‘Compensation Plan, or such other amount that does not cause the maximum annual amount of contribution for calendar year 2018 to be exceeded, whichever is less, and thereafter within 10 ‘business days after January Ist of each year this Agreement is in effect, the Manager shall reczive ‘an annual, lump sum contibution from the City in the maximum amount allowable by Iaw to & 401(@) Deferred Compensation Plan. 3.9 Automobile Allowance. The Manager shall receive an automobile allowance in the sum of Two Hundred Thiry Dollars end 77/100 ($230.77) bi-weekly, which payment i iew of mileage expense reimbursement, gasoline or other vehicle upkeep charges. This allowance shall be paid in in the same manner and in adltion to the annual base salary set forth in Paragraph 3.1 ofthis Agreement. The Manager shall acquie and maintain a vehicle suitable for use during the tem of this Agreement which shall be available forthe Manager's exclusive and unrestricted use in the performance of Manager's duties. The Manager shall be responsible for paying for end maintaining all Liability, property damage and appropriate insurance coverage upon the vehicle tnd shall further be responsible forall expenses attendant tothe purchase, operation, maintenance tnd repair and regular replacement of the vehicle. The vehicle may be used by the Manager for Manager's personal use. The vehicle allowance will be proraied to the effective date of any resignation or termination of tie Manager. The allowance will bene all applicable withholding or deductions required by the Applicable Laws and Authorities. 3.10 Expenses. The City shall pay or reimburse the Manager for reasonable expenses incurred by the Manager in the continuing performance of the Manager's duties under this ‘Agreement. The City agrees to pay the actual and incidental costs incurred by the Manager for travel in accordance with approved City Travel policies, rales and regulations. Such actual or incidental costs may include, but are not limited to, gasoline, hotels and accommodations, meals, rental car, and other expenses incurred in the performance of the business of the City. The ‘Manager shall comply with all procedures and documentation requirements in accordance with ‘Applicable Laws and Authorities. 3.11 Bonds. The City shall bear the full cost of any fdelity or other bonds required of the Manager under any law or ordinance. Employment Agreenent, T. Gonzalez, BL, fina, 12.11.18 Page 7 of 3 3.12 Total Benefit and Compensation Package. The Manager will not be entitled to receive any other compensation or benefits from the City except as set forth in this Agreement, in ‘accordance with paragraph 2.3 (2)(6)(c)(), and in accordance with Texas law. IV, PROFESSIONAL GROWTH 4.1 Professional Dues and Subscriptions. The City agrees to budget for and to pay for professional dues and subscriptions of the Manager necessary for continuation snd full participation in national, state, regional, and local associations and organizations as necessary ‘and/or desirable for the good of the City through the Manager's continued professional participation, growth and advancement. 42. Professional Development Travel The City agrees to budget for and to pay for travel and subsistence expenses of the Manager for professional and official travel and meetings to adequately cortinue the professional development of the Manager and to pursue necessary official functions forthe City, including but not limited tothe ICMA Annual Conference, the Texas ‘Municipal League, the Texas City Management Association, and such other national, regional, state and local governmental groups and committees in which the Manager is a member. All travel, expenses will be maid in accordance withthe City’s Travel Policies. 43. Professional Continuing Education. The City also agrees to budget for and to pay {for travel and subsistence expenses of Manager for short courses institutes, and seminars that are necessary and/or desirable for the good of the City through the Manager's professional evelopment. \V. PERFORMANCE EVALUATION 5.1 Evaluation Process. The Mayor and Council shall review the Manager's job performance annully during the month of June in order to complete the evaluation prior tothe adoption of the City’ anneal operating budget. The Meyor shall be responsible for completing the performance evaluation recommendation and submitting it to City Council for approval. The ‘Couneil shall provide the Manager a reasonable and adequate opportunity to discuss with the Council and/or respond to the Manager's evaluation. The annual performance reviews and evaluations shall be reasonably related to the Managers written job description and shall be based ‘on goals for the Manager's performance that are jointly developed and adopted by the City Council ‘andthe Manager. 52 Confidentiality. Unless the Manager expressly requests otherwise in writing, ‘except to the extent prohibited by or in material conflict with Applicable Laws and Authorities, the evaluation of the Manager shall tal imes be conducted in closed session ofthe Couneil and shall be considered confidential to the maximum and full extent permitted by law. Nothing herein shall prohibit the Council or the Manager from sharing the content of the Manages evzluation ‘with their respective legal counsel. Employment Agreement, T. Gonzalez, BLF, final, 12.11.18 Page 8 of 13 53 Modification of Evaluation Process. In the event the Council determines thatthe ‘evaluation instrument, format and/or procedure are to be modified by the Council, and such ‘modifications would require new or different performance expectations, then the Manager shall be provided a reasonable period of time to demonstrate such expected performance before being VI. TERMINATION & COMPENSATION UPON TERMINATION 61 Termination Events. Manager's employment under this Agreement shall ‘terminate upon any ofthe following: &. Mutual Agreement of the Council and Manager in writing and signed by the City ‘and the Manager. b. Retirement, Resignation or Death ofthe Manager. €. _Temination of Manager's Employment by the City for “Good Cause." Prior to ‘moving to terminate the Manager for good cause under clause (2), or negligent or grossly negligent act under cause (2\(4) below, the City by and trough the Mayor, wil provide Manager with not les than 60 days written notice of the ator omission at issue anda reasonable opportunity to respond and cue the isue cited inthe notes. (1) The City may terminste the Manager's employment under this Agreement for “‘pood cause” as defined below. @) “Good Cause” for purposes ofthis Agreement means: (@) Any wilful, knowing, grossly negligent, or negligent breach, disregard or habitual neglect of any provision of this Agreement, or any willful, knowing, grossly negligent, or negligent breach, disregard or hebitual neglect of any duty or obligation required to be performed by Manager under this Agreement vr under dhe City Chater and urdimances ofthe City andlor the laws ofthe United States or te State of Texas; (©) Any misconduct of the Manager involving an act of moral turpitude, ‘whether or not related to Manager's official duties hereunder, (©) Conviction of felony involving moral turpitude; (©) Ay wif, knowing, grossly negligent, or negligent misapplication or misuse, direct or indirect, by Manager of public or other funds or other ‘roperty, real, persona or mixed, owned by or entrusted tothe City, any ‘agency or corporation thereof or the Manager in his oficial capacity; (©) Disability, not otherwise protected by law, when in the writen opinion of a

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