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HomeMy WebLinkAbout03-09 OrdinanceRECORD OF ORDINANCES ll:wum Lcsal Blank. Inc. Ordizzccnc•e No. 03-09 Pa.r.sed 20 AN ORDINANCE APPOINTING A NEW CITY MANAGER, AUTHORIZING THE EXECUTION OF AN EMPLOYMENT AGREEMENT WITH THE CITY MANAGER, WAIVING THE PROVISIONS OF ORDINANCE 92-02, AND DECLARING AN EMERGENCY. WHEREAS, in a Special Meeting held on January 26, 2009, Council agreed upon the selection of Terry D. Foegler as the new City Manager and authorized the City's Search Consultant (The Mercer Group, Inc.) and staff to negotiate on Council's behalf an employment agreement with Terry D. Foegler; and WHEREAS, Council is in agreement with the terms of the Employment Agreement and desires to enter into a contract with Terry D. Foegler. NOW, THEREFORE, BE IT ORDAINED, by the Council of the City of Dublin, State of Ohio, ~ of the elected members concurring, that: Section 1. Terry D. Foegler is hereby appointed as City Manager of the City of Dublin. Section 2. Council hereby authorizes the Mayor, on behalf of Council, to execute and enter into an Employment Agreement with the City Manager, a copy of which is attached as Exhibit "A." Section 3. The provisions of Ordinance 92-02 authorizing an Ohio Public Employees Retirement System (OPERS) pension "pick up" plan for the position of City Manager shall be waived and shall not apply to the appointment of Mr. Foegler as the new City Manager. Section 4. This ordinance is declared to be an emergency measure necessary for the immediate preservation of the public peace, health, safety or welfare, and for the further reason that Council recognizes that the Interim City Manager has carried out the duties of both City Manager and Deputy City Manager/Finance Director for several months, and Council desires to facilitate the transition of duties to the new City Manager in a timely manner. This ordinance shall therefore take effect and be in force immediately upon passage. Passed this day of ~~ , 2009. Mayor -Presiding Officer !~ ~ ~ Clerk of Council crrr or utia~.i~s Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614-410-4400 • Fax: 614-410-4490 To: Members of Dubin City Council From: Marsha I. Grigsby, Interim City Manager ~``~~- Datc: January 30, 2009 Initiated By: Stephen J. Smith, Law Director David L. Harding, Director of Human Resources Memo Re: Ordinance 03-09 - Appointing a New City Manager a,~d Authorizing the Execution of an Employment Agreement with the City Manager Summary Staff was advised in writing by the Ohio Public Employees Retirement System (OPERS) on Friday, January 30, 2009 that, contrary to their previous verbal direction, Ordinance No. 92-02 establishing a pension "pic]< up" plan for the position of City Manager should be repealed legislatively. Consequently, staff has revised Ordinance No. 03-09 appointing a new City Manager by adding Section 3 to the Ordinance. Section 3 states that the provisions of Ordinance No. 92-02 authorizing a pension "pick up" plan for the City Manager position shall be waived and shall not apply to the appointment of Mr. hoegler as the new City Manager. As stated, Ordinance No. 92-OZ should be repealed. Staff will either prepare the appropriate legislation repealing Ordinance No. 92-02 for the February 17, 2009 Council meeting or prior to the need to make a City Manager appointment in the firture. Recommendation Staff recommends adoption of revised Ordinance 03-09 by emergency at the February 2, 2009 Council meeting. If you have any questions, please contact either Dave Harding or Steve Smith. Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 rrrl' pF llUBLIN Phone: 614-410-4400 • Fax: 614-410-4490 To: Members of Dublin City Council From: Marsha I. Grigsby, Interim City Manager /~'YI~G`,~„~ Date: January 29, 2009 Initiated By: Stephen J. Smith, Law Director David L. Harding, Director of Human Resources Memo Re: Ordinance 03-09 - Appointing a New City Manager and Authorizing the Execution of an Employment Agreement with the City Manager Summary Pursuant to Council's direction, staff has drafted the attached legislation and employment agreement for the new City Manager. The contract reflects the salary and benefits package as agreed upon by Council. As you will note, the contract reflects Mr. Foegler's start date as Tuesday, Febniary 17. This will require emergency adoption of the legislation on February 2. Recommendation Staff recommends adoption of Ordinance 03-09 by emergency at the February 2, 2009 Council meeting. If you have any questions, please contact either David Harding or Steve Smith. Exhibit "A" EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT ("Agreement"), is made and entered into this day of February, 2009, by and between the City of Dublin, Ohio, an Ohio municipal corporation, hereinafter called "Employer or City," and Terry D. Foegler, hereinafter called "Employee or City Manager." WITNESSETH WHEREAS, Employer desires to employ the services of Terry D. Foegler as City Manager of the City of Dublin, as provided for in Article V of the Revised Charter of the City of Dublin ("Revised Charter"); and WHEREAS, it is the desire of the City Cotmcil of the City of Dublin to provide certain benefits and to establish certain conditions of employment of said Employee as set forth in this Employment Agreement; and WHEREAS, Employee desires to accept employment as City Manager of Dublin, Ohio pursuant to the terms and conditions set forth in this Employment Agreement. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: Section 1. Powers and Duties of the City Manager. A. Employer hereby agrees to employ Terry D. Foegler as City Manager of the City of Dublin to perform the functions and duties specified in the Revised Charter, and to perform such other legally permissible and proper duties and functions as the City Council shall from time to time assign, subject to this Agreement. Employment shall commence on the 17"` day of February, 2009. B. Pursuant to Section 3.03 of the Revised Charter, neither the City Council nor any of its members shall direct or demand the appointment of any person to, or removal from, office by the City Manager or any of his subordinates, or in any manner take part in the appointment or removal of officers and employees in the service of the City, except where expressly provided for by the Revised Charter or state law. Section 2. Term of Agreement. A. The City Manager shall serve at the pleasure of the City Council and his initial date of employment will be February 17, 2009. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City Manager to resign at any time from his position with Employer. However, the City Manager agrees to provide thirty (30) days' notice of his resignation and such resignation shall forfeit any right of severance, except as provided for in Section 3.D. of this agreement. C. The City Manager agrees to remain in the exclusive employ of the City of Dublin, while employed by the City of Dublin. The term "employed," however, shall not be construed to include occasional teaching, writing, speaking or consulting performed on his time off, even if outside compensation is provided for such services. Said activities are expressly allowed. provided that in no case is any activity allowed which would present a conflict of interest with the City of Dublin. De minimus use of City equipment for such purposes is hereby authorized. D. Employee shall maintain residency within the City of Dublin throughout his tenure as City Manager. Section 3. Termination and Severance Pay. A. In the event the City Manager is terminated by the City Council and in the absence of a criminal act, then in that event the City shall pay Employee a lump sum cash payment equal to six (6) months' aggregate compensation. Employee shall also be compensated for all earned sick leave, vacation, holidays, and other accrued benefits to date, in accordance with the regulations in place for all non-union management employees of the City, calculated at the rate of pay in effect upon termination. As used herein, the term "aggregate compensation" shall include Employee's base salary, car allowance, and deferred compensation. B. In the event the City Manager is terminated by the City Council, all health, dental, and disability insurance and all other City provided benefits shall continue in full force and coverage, at City expense, for a period of six (6) months or until similar coverage is provided to Employee by a subsequent employer (and is in full force and effect), whichever comes first. Said continuation of group health insurance coverage shall be in addition to any protection afforded Employee by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Coverage under COBRA shall begin on the date all coverage extended under the severance provisions herein expires. C. In the event the City Manager is terminated by the City Council, the City shall pay Employee a lump sum cash payanent for outplacement services of 52,000 to assist in providing for various job search expenses to be incurred by Employee. D. In the event the City Council at any time reduces the salary, compensation or other benefits of the City Manager in a greater amount than an applicable across-the-board reduction for all employees of the City, or in the event the City Council fails to comply with any other provision of this Employment Agreement, or if the Employee resigns following a suggestion by a majority of the Council, then, in that event, Employee may, at his option, be deemed to be "terminated" at the date of such reduction, such refusal to comply, or such resignation within the meaning and context of the herein severance pay provision, then, in that event, Employee may, at his option, be deemed to be terminated, as provided herein. E. In the event the City Manager is terminated because of his conviction of any illegal act involving personal gain to himself, or criminal activity (excluding traffic-related offenses), then, in that event, Employer shall have no obligation to pay the aggregate severance sum designated herein. -2- F. For purposes of complying with Section 3 of this Agreement, appropriations held as unencumbered fund balances in any fund or account of the City shall be deemed to be available and authorized for transfer to the appropriate salary acrd benefit expenditure accounts to insure fulfillment of this provision of the Emplo}nnent Agreement. G. Resignation by the Employee forfeits any rights of severance under this Agreement, except as provided for in Section 3.D. of this agreement, and for such rights as would be provided to any City employee upon resignation pursuant to the personnel policies and regulations. H. Contemporaneously with the delivery of the severance pay set forth in this Agreement, Employee shall execute and deliver to Employer a release, releasing Employer of all claims that Employee may have against Employer. Section 4. Salary. Employer agrees to pay Employee for his services rendered pursuant hereto as City Manager an annual base salary of $180,000, payable in installments at the same time as other employees of the City are paid. Section 5. Deferred Compensation. Employer agrees to pay the City Manager annual deferred compensation in monthly installments equal to ten percent (10%) of the City Manager's base salary. Said deferred compensation shall be paid to the Ohio Employees Deferred Compensation Program or any other retirement fund or funds designated by the City Manager, on or around the first of each month commencing in March 2009. Employer agrees to transfer ownership of said plan or retirement fund to succeeding employers upon Employee's resignation or discharge. Section 6. Retirement Benefits. A. The City Manager shall be covered and governed by the Ohio Public Employees Retirement System, with the City contributing its required percentage of base salary. The Employee's share of the retirement contributions shall be paid by the Employee. Calculations for retirement contributions shall include all compensation normally reportable to PERS, including deferred compensation if applicable. Section 7. Insurance Coverages. A. The City Manager shall be covered by the same health, dental and disability plans, including the Family Medical Leave Act and worker's compensation benefits, as all other employees except that coverage shall be in full force and effect immediately upon start of his service to the City, including no waiting period for preexisting conditions. B. Employer agrees to purchase and pay the required premiums for a group term life insurance policy, providing coverage equal in amount to two and one half times the annual base salary of the City Manager, up to the total maximum premium cost of two thousand dollars ($2,000) per year, with the beneficiary to be designated by Employee. -3- Section 8. Automobile. Employer shall provide a car allowance of five hundred dollars ($500) per month to the City Manager, a taxable amount paid in conjunction with the regular payroll. Section 9. Other Benefits. A. All provisions of the Revised Charter, and rules and regulations of Employer relating to fringe benefits and working conditions as they now exist or hereafter maybe amended, shall apply to the City Manager as they would to all other non-union employees of Employer, in addition to said benefits enumerated specifically for the benefit of the City Manager in this Agreement. All benefits which vary according to tenure shall be calculated and granted in accordance with City provisions. These benefits include vacation leave accrual, which is based upon total completed years of public service, and longevity pay, which is based upon completed, consecutive years of service in full-time permanent positions with Dublin (no prior public service credit). Longevity begins after four (4) completed, consecutive years of service in full- timepermanent positions with Dublin. B. Employee shall be credited with four (4) weeks of vacation leave at his date of employment and begimling on such date shall accrue annual vacation leave at the annual rate of twenty-eight (28) days (pro rata) or at the rate which is in accordance with City policy for non- union employees, whichever is greater. Employee may not use more than four (4) weeks of vacation leave during his first twelve (12) months of employment. C. Employee will be credited with nine (9) days of sick leave begiiming at the date of employment and will accrue sick leave monthly at nine (9) days per year. Additionally, the Employer agrees to accept the transfer of Employee's unused sick leave balance from his prior public employment with The Ohio State University. Furthermore, the portion of this sick leave balance that was accrued during employee's tenure with the City of Dublin (908 hours) and unused upon his separation from the City of Dublin, shall be available for immediate use during his new tenure with the City of Dublin and shall also be eligible for conversion to cash, both annually and at separation (provided it is a separation in good standing), in accordance with the specified amounts established for all other non-union employees of the City. D. Employer shall provide a full service membership for the City Manager and his immediate family at the City of Dublin Recreation Center. Section 10. Hours of Work. It is recognized that the City Manager must devote a great deal of time outside normal office hours to the business of Employer, and to that end Employee will be allowed to take compensatory time off as he shall deem appropriate during said normal office hours. Section 11. Professional Development. Employer agrees to budget for and to pay the professional dues, subscriptions, and travel and subsistence expenses of the City Manager for professional participation and travel, meetings and occasions adequate to continue his professional development. Said participation on City time -4- shalt include, but not be limited to the International City/County Management Association, the Ohio Municipal League, the American Institute of Certified Planners, the American Planning Association, the Urban Land Institute, the International Economic Development Council, and such other national, regional, state and local governmental organizations and committees thereof which Employee serves as a member and/or participates, and which said membership or participation is beneficial to Employer, as well as associated courses, institutes, conferences and seminars which benefit the City. Employer agrees to reimburse Employee's expense of other memberships, registration, travel, meals or lodging in association with business-related conferences, education or other meetings, according to approved accounts in each annual budget. Employee shall obtain approval in advance from Council for any overseas travel. Section 12. General Expenses. A. The City shall provide aCity-owned cell phone/PDA and laptop computer for business use of Employee, subject to applicable rate plans or ceilings as contracted by the Employer. B. Employer shall bear the full cost of any fidelity or other bonds required of the City Manager under any law or ordinance. C. Employer agrees to pay or reimburse all other reasonable job-related expenses up to the maximum provided for in the annual City operating budget and subject to the requirement that al] such claims for payment or reimbursement be submitted on forms and/or in a manner subject to the review and approval of the Director of Finance. Section 13. Performance Evaluation. Within the first one hundred twenty (120) days of the City Manager's employment with the City, City Council will meet with him in order to discuss and adopt a performance plan of priorities and development goals for the City Manager during the first twelve (12) months of employment. The City Manager's salary will be subject to review and merit consideration at the annual anniversary date of his hire. In conjunction with the annual performance review, City Council and the City Manager will discuss and update the City Manager's annual performance plan and annual compensation. The City Council shall increase base salary and/or other benefits of the City Manager at the time of his/her review, in such amounts and to such extent as the City Council may determine that it is desirable to do so, at its sole discretion, in light of performance by Employee. Merit increases based on annual performance evaluations and salary reviews are exclusive of any general cost-of-living increases provided to other employees. The Manager shall receive all cost-of-living increases, if any, which Employer may grant to its other employees, at the same time and in the same manner said increases are granted to those employees. Section 14. Indemnification. Employer shall defend, indemnify and hold Employee harmless from and against any and all torts, claims, causes of action, demands, costs, expenses or other legal action, including all attorneys' fees, whether groundless or otherwise, arising out of any alleged act or omission occun~ing during or arising out of Employee's performance of duties as City Manager. Employer shall have the right to compromise and settle any such claim or suit and shall pay the amount of 5- any settlement or judgment rendered thereon. Said indemnification shall extend beyond Employee's termination of employment, and the otherwise expiration of this Agreement, to provide full and complete protection to Employee by the City of Dublin, as described herein, for any acts undertaken or committed in his capacity as City Manager, regardless of whether the filing of a lawsuit for such tort, claim, cause of action, demand, or other legal action occurs during or following Employee's employment with Employer. Section 15. General Provisions. A. The text herein shall constitute the entire Agreement between the parties. B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of the Employee. C. This Agreement shall become effective upon adoption and approval by the City Council of the City of Dublin. D. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall not be affected and shall remain in full force and effect. IN WITNESS WHEREOF, the City of Dublin has caused this Agreement to be signed and executed in its behalf by its Mayor and duly attested by its Clerk of Council, and the City Manager has signed and executed this Agreement, the day and year first written above. CITY OF DUBLIN, OHIO By:_ Mayor CITY MANAGER Terry D. Foegler ATTEST: Clerk of Council APPROVED AS TO FORM Stephen J. Smith, Law Director 6-